CASE 0:12-cv-02804-DSD-SER Document 1 Filed 11/02/12 Page 1 of 50

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

ANNEX MEDICAL, INC., STUART LIND, and TOM JANAS
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, 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; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.

Civ. No. 12-___________
VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
JURY TRIAL REQUESTED

Verified Complaint for Declaratory and Injunctive Relief Annex Medical, Inc., Stuart Lind and Tom Janas (collectively, “Plaintiffs”), by and through their counsel, complain against Defendants as follows:
Introduction 1. In this action, Plaintiffs challenge certain regulations adopted pursuant to the 2010 Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119, that force businesses and their owners to include in their group health plans
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coverage for products and services that violate their sincerely-held religious beliefs under threat of substantial monetary fines, penalties and significant competitive disadvantages.
2. Specifically, Plaintiffs seek declaratory and injunctive relief from the operation of the final rules promulgated by the Defendants, mandating that all group health plans include coverage, without cost sharing, for “[a]ll Food and Drug Administration [(FDA)] approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity” in plan years beginning on or after August 1, 2012 (“the Mandate”), see 45 CFR § 147.130 (a)(1)(iv), as confirmed at 77 Fed. Reg. 8725 (Feb. 15, 2012), adopting and quoting Health Resources and Services Administration (HRSA) Guidelines found at http://www.hrsa.gov/womensguidelines (“HRSA Guidelines”).
3. Plaintiffs Stuart Lind and Tom Janas are devout Catholics who are steadfastly committed to biblical principles and the teachings of the Catholic Church, including the belief that life involves the creative action of God, and is therefore sacred. Lind and Janas therefore believe that any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation is an evil forbidden by God.
4. Lind owns and operates Plaintiff Annex Medical, Inc. (“Annex Medical”), and Sacred Heart Medical, Inc. (“Sacred Heart Medical”) (together, “Companies”), companies that collectively design, manufacture and sell medical devices.
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5. Janas is an entrepreneur and businessman who has in the past owned and operated several successful businesses in the dairy industry. He has plans to purchase another business in 2013.
6. Lind and Janas strive to operate their businesses in ways that adhere to and are not violative of their religious beliefs.
7. Lind’s and Janas’s religious beliefs compel them to provide for the physical health of their employees. They have exercised this belief by offering group health plans for their employees.
8. The Mandate requires that Plaintiffs’ group health plans provide and pay for coverage for contraception, sterilization, abortifacient drugs, and related education and counseling.
9. Among the products the Mandate requires Plaintiffs’ group plans to fund are Plan B (the “morning after pill”) and Ella (the “week after pill”),1 drugs that are designed to destroy early human life shortly after conception.
10. Lind and Janas believe that paying for a group health insurance plan that complies with Defendants’ Mandate is sinful and immoral because it requires them and/or the businesses they control to pay for contraception, sterilization, abortifacient drugs and related education and counseling in violation of their sincere and deeply-held religious beliefs and the teachings of the Catholic Church.
1 FDA Office of Women’s Health, Birth Control Guide, available at www.fda.gov/downloads/ForConsumers/ByAudience/ForWomen/FreePublications/UCM 282014.pdf.
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11. Lind desires to continue offering a group health plan to Annex Medical employees, but wishes to exclude coverage for products and services that violate his religious beliefs, such as those required by the Mandate. Yet Defendants will not allow him to do so.
12. Janas plans to purchase a business in 2013 and to provide a group health plan to his employees, but wishes to exclude coverage for products and services that violate his religious beliefs, such as those required by the Mandate. Yet Defendants will not allow him to do so. This puts Janas at a competitive disadvantage due to his religious objection to the Mandate. Under the Mandate, Janas will not purchase a business where he would be at a competitive disadvantage because he would not be providing health insurance to employees. In some circumstances, Janas’s religious objections to the Mandate, and consequential refusal to provide health insurance to employees, would put potential companies he would buy in a non-competitive situation for employees.
13. Lind and Annex Medical have been coerced by Defendants’ Mandate to discontinue their group health insurance plan to avoid violating their religious beliefs. 2 Annex Medical’s group health plan will terminate on January 31, 2013, unless it receives relief from this Court.
2 Because Annex Medical employs fewer than 50 full-time employees, it is not subject to fines and penalties if it does not offer a group health plan to its employees. See 26 U.S.C. § 4980H(c)(2)(A). However, all employers, regardless of size, that offer a group health plan, must comply with the Mandate or face substantial fines and penalties. 26 U.S.C. § 4980D (imposing $100 per-day, per-employee fine on employers that offer group health plan that do not comply with the coverage requirements of the Mandate).
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14. In June, 2012, Janas decided to accept a below-market-value offer to purchase his former business, Roffe Container, Inc., in part to avoid having to conform Roffe’s group health plan to the Mandate’s requirement in violation of his religious beliefs.
15. Janas has plans to purchase another business in 2013, but is refraining from doing so because the Mandate will require him to include in his group health plan coverage for products and services that violate his religious beliefs.
16. The Mandate will not permit Plaintiffs to operate their businesses in accordance with their religious beliefs.
17. If Plaintiffs choose not to violate their religious beliefs by offering a group health plan that does not comply with the Mandate, they are subject to substantial fines and penalties. 26 U.S.C. § 4980D.
18. If Plaintiffs choose to exercise their religious beliefs by offering a group health to provide for the physical health of their employees, but the group health plan does not comply with the Mandate, Plaintiffs are subject to substantial fines and penalties. 26 U.S.C. § 4980D.
19. Because it is being forced to discontinue its employee health care in order to avoid violating Catholic religious beliefs, Annex Medical may now and will in the future face significant competitive disadvantages in the marketplace, in that it is unable to offer health insurance to current and prospective employees, where as its competitors will be able to do so without violating their consciences.
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20. Lind’s decision to discontinue health care was not done willingly, but under the coercive pressure of the Mandate.
21. Further, because providing health care is accepted to be a moral and religious duty by the Plaintiffs, discontinuing their group health plan violates Lind’s religiously-held duty to provide for the physical health of his employees, including their health care.
22. Janas has been pressured by the Mandate to forgo lucrative business opportunities in order to avoid having to violate his religious beliefs.
23. Plaintiffs will offer group health plans in the future, but only if they can do so without violating their religious beliefs with respect to contraception, sterilization and abortifacient drugs.
24. Defendants have exempted certain employers from complying with the requirements of the Mandate in an attempt to accommodate the religious beliefs of those employers, see 76 Fed. Reg. 46621, 46623 (issued on August 1, and published on August 3); however, despite their sincere religious objections, Plaintiffs do not, and will not, meet the Defendants’ narrow qualifications for such an exemption.
25. The Mandate violates Plaintiffs’ statutory and constitutional rights by coercing them to violate their sincerely held religious beliefs under the threat of fines and penalties.
26. The Mandate violates Plaintiffs’ statutory and constitutional rights by forcing them to violate certain religious beliefs in order to comply with their religiouslyheld duty to offer group health care.
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27. The Mandate violates Plaintiffs’ statutory and constitutional rights by requiring them to choose between violating their religious beliefs and facing significant competitive disadvantages in the marketplace.
28. The Mandate violates Janas’s statutory and constitutional rights by pressuring him to forgo lucrative business opportunities in order to avoid violating his religious beliefs.
29. Defendants’ actions violate Plaintiffs’ right to freely exercise their religion, which is protected by the Religion Clauses of the First Amendment to United States Constitution and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”).
30. Defendants’ actions also violate Plaintiffs’ right to freedom of speech, which is protected by the Free Speech Clause of the First Amendment to the United States Constitution.
31. Further, Defendants’ actions violated the Administrative Procedures Act, 5 U.S.C. § 553, by adopting and imposing the Mandate without prior notice or public comment.
32. Plaintiffs are currently being impermissibly coerced to violate their religious beliefs. Plaintiffs’ will continue to be harmed unless this court provides them their request relief from Defendants’ illegal and unconstitutional actions.
Jurisdiction and Venue 33. This action arises under the Constitution and laws of the United States. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1361. This Court
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has jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 & 2202, 42 U.S.C. § 2000bb-1, and 5 U.S.C. § 702. This Court has jurisdiction to award reasonable attorney’s fees and costs under the Equal Justice Act, 28 U.S.C. § 2412, and 42 U.S.C. § 1988.
34. Venue is appropriate in this district pursuant to 28 U.S.C. § 1391(e)(1) because the Plaintiffs reside within this district.
The Parties 35. Plaintiff Stuart Lind is an individual and a citizen of the State of Minnesota and the United States. Lind is the owner of Plaintiff Annex Medical as well as its President and Chief Executive Officer. 36. Plaintiff Annex Medical, Inc., a Minnesota corporation, is an original equipment manufacturer of medical devices. It is located at 6018 Blue Circle Drive, Minnetonka, Minnesota 55343. It is operated as a c-corporation by Plaintiff Stuart Lind. 37. Plaintiff Tom Janas is an individual and citizen of the State of Minnesota and the United States. 38. Defendant United States Department of Health and Human Services (“HHS”), is an agency of the United States, and is responsible for the administration and enforcement of the Mandate. 39. Defendant Kathleen Sebelius is the Secretary of HHS. As Secretary, she is responsible for the operation and management of HHS. She is sued in her official capacity only.
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40. Defendant United States Department of Labor (DOL) is an agency of the United States government and is responsible for the administration and enforcement of the Mandate.
41. Defendant Hilda Solis is the Secretary of DOL. As Secretary, she is responsible for the operation and management of DOL. She is sued in her official capacity only.
42. Defendant United States Department of the Treasury is an agency of the United States government and is responsible for the administration and enforcement of the Mandate.
43. Defendant Timothy Geithner is the Secretary of the Treasury. As Secretary, he is responsible for the operation and management of the Treasury. He is sued in his official capacity only.
Factual Allegations Plaintiffs’ Religious Beliefs
44. Lind and Janas are devout Catholics who are steadfastly committed to following the religious, ethical and moral teachings of the Catholic Church.
45. Lind and Janas strive to adhere to these teachings in all aspects of their lives, including their operations of their businesses.
46. Lind and Janas sincerely believe that the Catholic faith does not permit them to violate Catholic religious, ethical and moral teachings in the operations of their businesses.
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47. The Catholic Church teaches and Lind and Janas believe that “[h]uman life must be respected and protected absolutely from the moment of conception.” Catechism of the Catholic Church, § 2270.
48. In accordance with the Catechism and Pope Paul VI’s 1968 encyclical Humanae Vitae, Lind and Janas believe that “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation” is a grave sin.
49. The Catholic Church teaches that contraception, sterilization, abortion and use of abortifacient drugs are intrinsically evil and immoral because they are capable of preventing or destroying a human life.
50. Catholic leaders have publicly explained that compliance with the Mandate is a direct violation of the Catholic faith.
51. In an interview with Catholic Action for Faith and Family, Vatican Cardinal Raymond Burke agreed that Catholic employers who comply with the Mandate are “cooperating with the…sin of contraception.” Cardinal Burke explained,
It is not only a matter of what we call ‘material cooperation’ in the sense that the employer by giving this insurance benefit is materially providing for the contraception but it is also ‘formal cooperation’ because he is knowingly and deliberately doing this, making this available to people. There is no way to justify it. It is simply wrong.3
3 Cardinal Burke Says Catholic Employers Cannot Conscientiously Comply with HHS Regulation, CNS News,http://cnsnews.com/video/national/cardinal-burke-says-catholicemployers-cannot-conscientiously-comply-hhs-regulation (video interview).
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52. The Catholic Catechism teaches and Lind and Janas believe that “[f]ormal cooperation in an abortion constitutes a grave offense.” Catechism of the Catholic Church, § 2272.
53. Lind and Janas believe that their religious faith require them to adhere to Catholic teaching regarding contraception, sterilization, abortion and abortifacient drugs in all aspects of their lives, including in their operation of their businesses.
54. Lind and Janas believe that their religious faith requires them to refrain from materially or formally cooperating with contraception, sterilization, abortion and abortifacient drugs in all aspects of their lives, including in their operation of their businesses.
55. Consequently, Lind and Janas believe that it is immoral and sinful for them to intentionally participate in, pay for, facilitate access to, or otherwise support contraception, sterilization, abortifacient drugs, and related education and counseling through their inclusion in their businesses’ group health plans, as is required by the Defendants’ Mandate.
56. The Catholic Church teaches Life and physical health are precious gifts entrusted to us by God. We must take reasonable care of them, taking into account the needs of others and the common good. Concern for the health of its citizens requires that society help in the attainment of living-conditions that allow them to grow and reach maturity: food and clothing, housing, health care, basic education, employment, and social assistance.
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Catechism of the Catholic Church, § 2288 (emphasis added).4 57. The Ethical and Religious Directives for Catholic Health Care Services
(Fifth Edition) provides Catholic health care ministry is rooted in a commitment to promote and defend human dignity; this is the foundation of its concern to respect the sacredness of every human life from the moment of conception until death. The first right of the human person, the right to life, entails a right to the means for the proper development of life, such as adequate health care.
Part One, Introduction (emphasis added). 58. Consistent with this teaching and directive, Lind and Janas sincerely
believe they have a duty, when possible, to provide for the needs of others, including their health care.
59. As part of their commitment to fulfilling this moral and religious duty, Lind’s and Janas’s businesses have provided generous group health insurance plans for their employees and their families.
60. Annex Medical has provided health insurance to its employees through Blue Cross and Blue Shield of Minnesota (“Blue Cross”) since 1998.
61. Each company with employees which Janas has owned has provided health insurance for its employees.
4 The Christian Bible instructs believers to “Heal the sick.” Matthew 10:8 (New International Version). “The [Catholic] Church has received this charge from the Lord and strives to carry it out by taking care of the sick as well as by accompanying them with her prayer of intercession.” Catechism of the Catholic Church, § 1509.
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Stuart Lind and Annex Medical 62. Annex Medical, Inc. was founded in 1988 in the basement of Plaintiff
Stuart Lind’s residential home. Annex Medical initially developed medical instruments for cardiovascular and urology procedures. In 1990, it began manufacturing and selling heart biopsy and urology stone baskets. While Annex Medical currently produces a variety of products, its focus is on specialty retrieval devices for use with small diameter endoscopes.
63. Annex Medical currently employs 16 full-time employees and 2 part-time employees.
64. Annex Medical is organized and operated as a c-corporation. 65. Plaintiff Stuart Lind is Annex Medical’s current Director, President and Chief Executive Officer. 66. In 2001, Lind created a separate entity called Sacred Heart Medical, Inc. 67. Sacred Heart Medical is organized and operated as an s-corporation. 68. Lind is Sacred Heart Medical’s current Director, President and Chief Executive Officer. 69. Where Annex Medical focuses on making product for companies (who will then market those products under their own name), Sacred Heart Medical focuses on providing product directly to hospitals. 70. In addition to providing group health insurance, Lind strives to operate his Companies in accordance with the religious, ethical and moral teachings of the Catholic Church in other ways.
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71. Annex Medical’s mission statement reads The mission of Annex Medical, Inc. is to manufacture medical products of high quality and good value, while conducting business in a way that is pleasing to God and is faithful to Biblical principles and values. We will accomplish this mission from a Christian perspective that respects others who believe differently while sharing the joy we have received from Jesus Christ.5
Lind has adopted the same mission statement for Sacred Heart Medical.6 72. In 2001, Lind officially and publicly consecrated his Companies to the
Sacred Heart Medical of Jesus. Consecration to the Sacred Heart of Jesus is a Roman Catholic ceremony recognizing the Kingship of Jesus Christ, in this case, over Lind’s business. Reverend Father Thomas Dufner, Lind’s pastor at the time, officiated the ceremony. Over 30 witnesses were present and a certificate of the ceremony bearing signatures of the pastor, president and vice president has been posted in the entrance of the company’s office ever since that date. This consecration is both a public profession of Lind’s faith and a formal commitment to operate Annex Medical and Sacred Heart Medical in accordance with the teaching of Jesus Christ.
73. Lind’s belief in the sanctity of life and his religious and moral objections to contraception, sterilization, abortion and cooperation with the same are also apparent in his Companies’ business relationships.
5 Mission Statement, Annex Medical Inc., http://www.annexmedical.com/About_Us.html (last visited Oct. 31, 2012). 6 Mission Statement, Sacred Heart Medical, http://www.sacredheartmedical.com/company.html (last visited Oct. 31, 2012).
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74. Distributors and sales representatives that contract with Sacred Heart Medical to purchase and market products manufactured by Annex Medical must represent that they will “at no time distribute or represent products that are labeled with indications for contraception, sterilization, abortion, pregnancy termination, or in vitro fertilization.”
75. In 1998, Lind made a very difficult and costly business decision based on his religious convictions. Annex Medical had developed and was successfully marketing a heart biopsy forceps. The forceps was used on patients who had received transplanted hearts. The heart donors were declared “brain dead” under certain criteria determined by the medical community. However, Lind became informed that the harvesting procedure of “brain dead” donors actually begins while the donor’s heart is beating and there is normal blood pressure and circulation. Some within the medical profession have concluded that this invalidates the determination that a donor’s life has ended. Lind believes that life is a fundamental right received from our Creator and that it is morally unacceptable to end prematurely the life of a dying person. Accordingly, he discontinued this promising product line so as to not be complicit with this morally unacceptable act.
76. In 2001, Annex Medical ended its 7-year relationship with American Express, which Annex Medical was using to facilitate its employee retirement plans, upon learning that American Express contributes money to Planned Parenthood, a provider of abortion and abortion services.
77. Annex Medical’s current group health plan is issued by Blue Cross.
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78. The plan year for Annex Medical’s group health plan began on July 1, 2012.
79. Annex Medical’s group plan is not currently subject to the Mandate. 80. Annex Medical’s group plan will be subject to the Mandate beginning on the first day of their next scheduled plan renewal—July 1, 2013. 77 Fed. Reg. at 8725. 81. Plaintiffs’ religious beliefs prohibit them from intentionally providing a group health plan that provides coverage for contraception, sterilizing, and abortifacient drugs and related education and counseling. 82. Shortly after renewing its current group health plan, Lind became aware of the national controversy surrounding the Mandate, including the lawsuit filed by Hercules Industries, a Colorado corporation, against Defendants to enjoin enforcement of the Mandate. Newland v. Sebelius, No. 12-cv-01123, 2012 U.S. Dist. LEXIS 104835 (D. Colo. July 27, 2012) (order granting preliminary injunction), appeal docketed, No. 121380 (10th Cir. Sept. 26, 2012). 83. Lind then re-examined Annex Medical’s group health plan to verify it did not include coverage for drugs or services that do not accord with Plaintiffs’ religious beliefs. During this re-examination, Lind discovered that Annex Medical’s current group health plan provides coverage for abortifacient drugs, sterilization and contraception supplies and prescription medications.7
7 During the examination of its group health plan, Plaintiffs also discovered it had included coverage for similar contraceptive and abortion-inducing drugs in prior group health plans. Coverage for these drugs was not included knowingly as to do so would be contrary to Plaintiffs’ sincerely-held religious beliefs.
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84. Coverage for these drugs and services was not included knowingly as to do so would be contrary to Plaintiffs’ sincerely-held religious beliefs.
85. Upon learning that Annex Medical’s current group health plan provides coverage in violation of Plaintiffs’ Catholic faith, Lind immediately contacted Blue Cross to request that Annex Medical’s group health plan be modified to exclude coverage for contraception, sterilization, abortifacient drugs and related education and counseling.
86. Blue Cross informed Lind that Blue Cross did not permit Annex Medical to modify its group health plan to omit such coverage because Blue Cross requires all group health plans issued to employers with fewer than 50 employees to include such coverage.
87. Lind then inquired with three other insurance issuers in Minnesota as to whether they could sell a group health plan to Annex Medical that excludes coverage for contraception, sterilization and abortifacient drugs.
88. None of the issuers was able to offer such a group plan because no such plan can exist as a result of the Mandate, for it requires all insurance issuers to provide Mandate-compliant coverage in all group health plans. 42 U.S.C. § 300gg-13; 45 CFR 147.130(a)(1)(iv).
89. The Mandate strips Annex Medical of any choice to select an insurance plan that does not cover and finance contraception, sterilization, and abortifacient drugs and related education and counseling.
90. As a result of the Mandate, Annex Medical cannot currently offer a group health plan to its employees that accords with and does not violate Plaintiffs’ sincerelyheld religious beliefs.
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91. Lind believes he has a moral and religious duty to provide a group health
plan for Annex Medical employees; however, he cannot do so without violating their
religious beliefs.
92. Despite both religious directives, Lind and Annex Medical have determined
they must discontinue Annex Medical’s group health plan.
93. This decision to discontinue health care was not done willingly, but under
the coercive pressure of the Mandate, which has eliminated Annex Medical’s choice to
purchase a plan that accords with the Catholic faith.
94. On October 22, 2012, Lind held a company meeting at which he notified
Annex Medical employees of his decision to discontinue Annex Medical’s group health
plan, effective January 31, 2013. In a written letter he distributed during the meeting,
Lind explained, in part,
I regret to announce that effective January 31, 2013, Annex Medical will be canceling its Blue Cross Blue Shield (BCBS) group health insurance plan. We are, at this time, working hard to find alternatives.
Recently, I discovered our BCBS plan includes abortion, abortifacient drugs, sterilization and contraceptives. The Roman Catholic Church, of which I am a strong adherent, teaches these to be innate evils and therefore sinful. I would be in material cooperation (assisting in another’s wrongdoing without approving it) if we continue to offer a health insurance plan that includes these services. As those who have worked here many years may know, I feel a strong obligation to run both Sacred Heart Medical and Annex Medical in line with my religious convictions. This difficult decision was made through several consultations and a meeting with my pastor, Fr. John Echert.
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Lind’s pastor, Fr. John Echert, gave a presentation at the company meeting during which he explained in detail why the Mandate was morally and religious problematic for Lind.
95. By coercing them to discontinue their group health plan, the Mandate has illegally and unconstitutionally coerced Lind and Annex Medical to violate their Catholic conscience that compels them to provide for the physical health of others, including their health care.
96. Discontinuing insurance coverage threatens the health and economic stability of Annex Medical and its employees. It will also force Annex Medical to suffer competitive disadvantages, in that it will not be able to offer current and prospective employees the important benefit of health insurance, whereas other employers will be able to do so without violating their religious beliefs.
97. Lind and Annex Medical do not want to discontinue Annex Medical’s group health plan, but are coerced by the Mandate to do so under the threat of violating their religious beliefs.
98. If Lind and Annex Medical choose to continue to provide their current employee group health plan, Annex Medical will, inevitably, be forced to offer a Mandate-compliant group health plan.
99. If Annex Medical provides a group health plan that does not comply with the Mandate, Annex Medical is subject to substantial fines and penalties.
100. The Mandate illegally and unconstitutionally forces Lind and Annex Medical to choose between violating their sincerely-held religious beliefs and incurring substantial fines and penalties.
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101. The Mandate illegally and unconstitutionally forces Lind and Annex Medical to violate their religious beliefs with respect to contraception, sterilization and abortifacient drugs in order to exercise their religiously-held duty to provide for the physical health of their employees.
102. The Mandate illegally and unconstitutionally forces Lind and Annex Medical to choose between violating their religious beliefs with respect to contraception, sterilization and abortifacient drugs and facing significant competitive disadvantages in the marketplace.
103. In other words, the Mandate illegally and unconstitutionally forces Lind and Annex Medical to abandon the precepts of the Catholic faith in order to offer group health insurance.
104. Lind simply wishes to operate Annex Medical in accordance with his Catholic faith and would do so but for the Mandate and its fines, penalties and substantially burdensome coercive effects. Tom Janas
105. Tom Janas is a Minnesota entrepreneur and businessman. 106. Janas currently owns and operates Habile Holdings, LLC (“Habile) and Venture North Properties, LLC (“Venture North”). Habile and Venture North lease commercial properties to a large manufacturer of blow-molded plastic containers. Habile and Venture North have no employees. 107. Janas first became a business owner in 2004, when he acquired DQCI Services, LLC, a dairy testing laboratory located in Mounds View, Minnesota.
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108. On December 29, 2009, Janas started DQCI Products, LLC, a small distribution company established to create a new dairy testing process. DQCI Products has no employees.
109. On October 31, 2011, Janas sold DQCI Services to Eurofins Scientific. Janas retains ownership of DQCI Products; however, he has plans to sell the business’s assets in the near future.
110. On February 29, 2008, Janas purchased Roffe Container, Inc. (“Roffe”), a manufacturer of blow-molded plastic bottles for the dairy industry.
111. Janas endeavors to operate his businesses in accordance with the religious, ethical and moral teachings of the Catholic Church.
112. Consistent with Janas’ religious beliefs, Janas has provided for the welfare of the employees of Roffe and DQCI Services in numerous ways, including offering his employees generous group health insurance plans.
113. Janas’ personal religious beliefs were no secret to anyone employed at either Roffe or DQCI Services. As a reminder of Jesus’ redemptive sacrifice, Janas hung a Crucifix on the wall of his office. Janas would also consistently offer a prayer for his companies and their employees prior to business meetings. Further, during the last three to four years of Janas’s ownership, DQCI made charitable contributions in the amount of $6000 per month to a number of religiously-focused charities, including St Peter’s Catholic Church, the Heritage Foundation, Alliance Defending Freedom, Covenant House, and Relevant Radio, a Catholic radio station.
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114. In April of 2012, Consolidated Container Company (“CCC”), a leading developer and manufacturer of plastic packaging, approached Janas about the possibility of purchasing Roffe.
115. Prior to being approached by CCC, Janas had become aware of the Mandate and the national controversy surrounding it. Janas concluded that if Roffe continued to offer a group health plan to Roffe employees, it would eventually be forced to include in its plan all the FDA-approved preventive care services required by the Mandate—contraception, sterilization and abortifacient drugs and related education and counseling. Janas realized he could not provide such coverage without violating his conscience and the religious, ethical and moral teaching of the Catholic Church.
116. Consequently, Janas began actively researching whether there were ways to avoid compliance with the Mandate while continuing to fulfill his religiously-held duty to provide health insurance coverage to Roffe employees. Janas concluded that the only way to avoid compliance with the Mandate was to discontinue his group health plan. He chose not to, however, for to do so would violate his religiously-held duty to provide for the physical health of his employees.
117. Janas also understood that if he continued to offer a group health plan that did not comply with the Mandate as he preferred, he would be in breach of the law, and subject to fines and penalties.
118. In June 2012, CCC made an offer to acquire most of Roffe’s assets. Based on the market value at that time, CCC’s offer was below what Janas believed Roffe’s assets to be worth.
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119. Yet to avoid the inevitable confrontation with the Mandate and its penalties for non-compliance, Janas accepted CCC’s offer to purchase Roffe’s assets.
120. Janas now desires to purchase another manufacturing business in the dairy industry sometime in 2013. He is actively looking for purchase options via the Minnesota Chamber of Commerce.
121. Janas plans to purchase a business that has employees. 122. Because he has recently sold his other businesses, Janas is currently financially able to purchase another business and is ready and willing to do so. 123. Janas is very familiar with the dairy industry in Minnesota. Janas is aware that the owners of several manufacturing businesses in the dairy industry are near or at retirement age and would be willing to listen to offers to purchase their businesses. 124. Due to the current economic conditions, Janas believes the value of manufacturing businesses in the dairy industry is such that 2013 will be an opportune time to acquire one of them and therefore he desires to do so within the next calendar year. 125. Because Janas desires to purchase a business with employees, his religious obligations will compel him to provide a group health plan. 126. However, any group health plan Janas’ business provides is required by the Mandate to include coverage for contraception, sterilization, abortifacient drugs and related education and counseling.
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127. If Janas purchases a business, the Mandate requires him to violate his religious beliefs in order to fulfill his religious duty to provide his employees with a group health plan.
128. The Mandate strips Janas of any choice to select a group health plan that does not cover and finance contraception, sterilization, and abortifacient drugs and related education and counseling.
129. The Mandate prevents any business Janas purchases from offering a group health plan to its employees that accords with and does not violate Janas’s sincerely-held religious beliefs.
130. If Janas purchases a business, he has concluded he will discontinue the employee group health plan rather than comply with the Mandate and violate his religious beliefs. His business will face significant competitive disadvantages in the marketplace, in that it would be unable to offer health insurance to current and prospective employees, where as its competitors will be able to do so without violating their consciences.
131. Under the pressure of the Mandate, Janas has decided to forgo purchasing a business in order to avoid having to choose between violating his religious beliefs and incurring substantial fines.
132. Further, under the pressure of the Mandate, Janas has decided to forgo purchasing a business in order to avoid having to choose between violating his religious beliefs and facing significant competitive disadvantages in the marketplace.
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133. Janas wishes to purchase a business and operate it in accordance with his Catholic faith and would do so but for the Mandate and its fines, penalties and substantially burdensome coercive effects. The ACA and the Mandate
134. The Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111148, 124 Stat. 119, enacted in March 2010, requires group health plans to provide women with “preventive care and screenings” at no charge to the patient. See 42 U.S.C. § 300gg13(a)(4).
135. Specifically, the ACA provides: A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for… (4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.
Id. 136. In July, 2010, Defendants issued regulations ordering HHS’s Health
Resources Services Administration (“HRSA”) to develop guidelines that would determine what preventative care and screenings would be mandated under the ACA. See 75 Fed. Reg. 41728 (July 19, 2010).
137. HRSA commissioned and funded a committee at the Institute of Medicine (“IOM”) to recommend which drugs, procedures, and services should be covered by all health plans as preventive care for women.
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138. IOM’s report8 to HRSA recommended that preventative care for women include “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.”
139. On August 1, 2011, without notice of rulemaking or opportunity for public comment, the HRSA adopted the IOM’s recommendations in full. See Health Resources and Services Administration, Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines (last visited Oct. 31, 2012) (“HRSA Guidelines”).
140. Contemporaneously, Defendants issued an “interim final rule” requiring “group health plan[s] and…health insurance issuer[s] offering group or individual insurance coverage [to] provide benefits for and prohibit the imposition of cost-sharing with respect to” the women’s preventive care and services included in the HRSA Guidelines for plan years beginning on or after August 1, 2012. 76 Fed. Reg. 46622, 46629 (issued on August 1, and published on August 3); 45 CFR 147.130(a)(1)(iv).
141. On February 15, 2012, Defendants issued final regulations—referred to herein as the Mandate—by adopting the August 1 interim final rule “without change.” 77 Fed. Reg. 8725-30 (Feb. 15, 2012).
8 INSTITUTE FOR MEDICINE, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS (2011), available at http://cnsnews.com/sites/default/files/documents/PREVENTIVE%20SERV ICESIOM%20REPORT.pdf.
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142. Among the FDA-approved “contraceptive methods” that all group health plans must provide at no cost are Plan B (the “morning after pill”) and Ella (the “week after pill”),9 drugs that are designed to destroy early human life shortly after conception.
143. Plan B and Ella can prevent the implantation of a human embryo in the wall of the uterus and can cause the death of an embryo. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus or to cause the death of an embryo each constitute an “abortion” as that term is used in federal law and Catholic teaching. Consequently, Plan B and Ella are abortifacients.
144. The ACA requires employers with more than 50 full-time employees (or full-time employee equivalents) to provide federal government-approved health insurance coverage or pay substantial fines and penalties. 26 U.S.C. § 4980H.
145. However, even employers with fewer than 50 full-time employees must comply with the Mandate, under threat of substantial fines, if they offer a group health plan because the Mandate applies to all non-exempt, non-grandfathered group health plans regardless of the employer’s size. 42 U.S.C. § 300gg-13(a)(4) (Mandate applies to all group health plans); 26 U.S.C § 4980D (imposing fines on “failure of a group health plan to meet the requirements” of the ACA).
146. Moreover, the ACA and the Mandate prevent all employers (and individuals) from selecting a group health plan that does not include coverage for contraceptives, sterilization, abortifacient drugs and related education and counseling 9 FDA Office of Women’s Health, Birth Control Guide, available at www.fda.gov/downloads/ForConsumers/ByAudience/ForWomen/FreePublications/UCM 282014.pdf.
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because the ACA requires all “health insurance issuers offering group or individual health insurance coverage” to provide Mandate-compliant coverage. 42 U.S.C. § 300gg13(a)(4).
147. Therefore, Plaintiffs cannot avoid the Mandate by purchasing a group health plan that accommodates their conscience and religious beliefs because no such plan exists.
148. The Mandate does not apply to preexisting group health plans that are considered “grandfathered.” 76 Fed. Reg. 46623 & n.4; see also 42 U.S.C. § 18011(a)(34) (specifying those provisions of the ACA that apply to grandfathered health plans).
149. To remain “grandfathered,” a group health plan must now and in the future comply with regulations issued by Defendants. See 42 U.S.C. § 18011(a)(2); 45 CFR § 147.140; 75 Fed. Reg. 34538, 34545 (June 17, 2010); see also HealthReform.gov, “Fact Sheet: Keeping the Health Plan You Have: The Affordable Care Act and “Grandfathered” Health Plans,” http://www.healthreform.gov/newsroom/keeping_the_health_plan_you_have.html (last visited Oct. 31, 2010).
150. The ACA and the Mandate do not apply equally to members of certain religious groups.
151. Individual “member[s] of a recognized religious sect or division thereof” who are “conscientiously opposed to acceptance of the benefits of any private or public insurance” are exempted from complying with certain provisions of the ACA. 26 U.S.C. §§ 5000A(d)(2)(a)(i), 1402(g)(1).
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152. The Mandate indicates that HRSA “may” exempt certain “religious employers” from complying with the Mandate. 45 C.F.R. § 147.130(a)(iv)(A); 76 Fed. Reg. at 46623.
153. Defendants have defined which employers are “religious” for purposes of this exemption. 45 C.F.R. § 147.130(a)(iv)(B).
154. HRSA may grant exemptions for “religious employers” that “meet[] all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.130(a)(iv)(B)(1)-(4).
155. The sections of the Internal Revenue Code referenced in the fourth criterion refer to “churches, their integrated auxiliaries, and conventions or associations of churches” and “the exclusively religious activities of any religious order,” that are exempt from taxation under 26 U.S.C. § 501(a). 26 U.S.C. § 6033(a)(1), (a)(3)(A)(i), (a)(3)(A)(iii).
156. The Mandate does not place limits on HRSA’s discretion to establish an exemption for “religious employers,” or to grant such exemptions to organizations meeting the Defendants’ definition of “religious employer.”
157. The Mandate contains no exemptions for for-profit organizations, such as Plaintiff Annex Medical, even when those organizations have a sincere religious
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objection to the Mandate’s requirement that their group health plans provide coverage, at no cost, for contraception, sterilization, abortifacient drugs and related education and counseling.
158. Defendants stated that it based the exemption for “religious employers” on comments and feedback received on the July 19, 2010 interim final rule, see 76 Fed. Reg. at 46623, and the August 1, 2011 amendments to the interim final rule, see 77 Fed. Red. at 8726.
159. Defendants stated they received over 200,000 responses to the request for comments to the August 1, 2011 amendments to the interim final rule. 77 Fed. Reg. at 8726.
160. Through these comments, Defendants were made aware of numerous objections to the Mandate, including, but not limited to, the following:
• “the religious employer exemption is too narrow”; • “the definition of religious employer [should] be broadened so that more
sponsors of group health plans would qualify for the exemption”; • “the exemption for religious employers will not allow them to continue
their current exclusion of contraceptive services from coverage under their group health plans”; • that for certain employers to “pay for [contraceptive] services…would be contrary to their religious beliefs”; and • “if the definition of religious employer is not broadened, [employers] could cease to offer health coverage to their employees in order to avoid having to offer coverage to which they object on religious grounds.” 77 Fed. Reg. at 8726-27.
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161. Despite these, and other, known religious objections, Defendants did not expand the narrow exemption for organizations defined as “religious employers,” but finalized the interim final rule “without change.” 77 Fed. Reg. at 8730.
162. With full knowledge of the aforementioned objections, Defendants issued the Mandate, which substantially burdens the religious exercise of Plaintiffs and millions of other Americans.
163. Because the Mandate arbitrarily exempts certain plans and employers for a variety of secular reasons, but does not exempt similar plans and employers for religious reasons, the Mandate impermissibly targets religious conduct.
164. The Mandate was adopted without giving due weight to the tens of thousands of public comments submitted to HHS in opposition to the Mandate.
165. The Mandate forces Plaintiffs and others to adopt and endorse Defendants’ moral view of contraception, sterilization, abortifacient drugs and related education and counseling.
166. On February 10, 2012, HHS issued a document entitled “Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing Under Section 2713 of the Public Health Service Act, Section 715(a)(1) of the Employee Retirement Income Security Act, and Section
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9815(a)(1) of the Internal Revenue Code” (“Guidance”),10 which established a
“temporary enforcement safe harbor.”
167. Under the “Guidance,” until “the first plan year that begins on or after
August 1, 2013…[n]either employers, nor group health plans, nor group health insurance
issuers will be subject to any enforcement action by the Departments for failing to cover
recommended contraceptive services without cost sharing in non-exempted, non-
grandfathered group health plans established or maintained by an organization…that
meets all of the following criteria:
1. The organization is organized and operates as a non-profit entity.
2. From February 10, 2012 onward, contraceptive coverage has not been provided at any point by the group health plan established or maintained by the organization, consistent with any applicable State law, because of the religious beliefs of the organization.
3. …the group health plan established or maintained by the organization (or another entity on behalf of the plan, such as a health insurance issuer or third-party administrator) must provide to participants the attached notice, as described below, which states that contraceptive coverage will not be provided under the plan for the first plan year beginning on or after August 1, 2012.
4. The organization self-certifies that it satisfies criteria 1-3 above, and documents its self-certification in accordance with the procedures detailed herein.”
10 HHS, Guidance on the Temporary Enforcement Safe Harbor, http://cciio.cms.gov/resources /files/Files2/02102012/20120210-Preventive-Services-Bulletin.pdf (last visited Oct. 31, 2012).
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HHS, Guidance on the Temporary Enforcement Safe Harbor, http://cciio.cms.gov/resources/files /Files2/02102012/20120210-Preventive-ServicesBulletin.pdf (last visited Oct. 31, 2012).11
168. On March 21, 2012, Defendants issued an Advanced Notice of Proposed Rulemaking” (“Advanced Notice”) stating their intentions to propose certain amendments to the Mandate. 77 Fed. Reg. 16501 (March 21, 2012).
169. In the Advanced Notice, Defendants stated an intention to “accommodate” some religious non-profit employers not defined as “religious employers” by Defendants by requiring compliance with the mandate by means of requiring those employers’ insurers to offer the employer’s employees the coverage required by the Mandate for at no cost. See 77 Fed. Reg. at 16503.
170. The Advanced Notice is neither a rule, a proposed rule, nor the specification of what a rule proposed in the future would actually contain. It in no way changes or alters the final status of the Mandate. It does not even create a legal requirement that Defendants change the Mandate at some time in the future.
171. The ACA creates a system of individualized exemptions. 172. The ACA grants HHS the authority to grant compliance waivers, which exempt certain entities from complying with certain provisions of the ACA, including the requirement that employers provide health care coverage.
11 On August 15, 2012, Defendants issued a revised Guidance, clarifying certain criteria with respect to the Temporary Enforcement Safe Harbor. HHS, Revised Guidance on the Temporary Enforcement Safe Harbor at 1 n.1, http://cciio.cms.gov/resources/files/prevservices-guidance-08152012.pdf (last visited Oct. 16, 2012).
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173. Employers who are exempt from providing health care coverage are exempt from complying with the Mandate.
174. Upon information and belief, HHS has granted over 1,000 compliance waivers.
175. HHS has granted compliance waivers to for-profit businesses, unions and other organizations for purely secular reasons, but has not exempted Plaintiffs despite their sincere religious objections.
176. The ACA is not generally applicable because it provides numerous exemptions from its rules and applicability.
177. The ACA is not neutral because some organizations and individuals, both secular and religious, are exempt from complying with certain provisions it, including the Mandate.
178. The ACA is not neutral because some organizations and individuals, both secular and religious, have been granted compliance waivers, exempting them from complying with certain provisions of it, including the Mandate. Plaintiffs and the Mandate
179. The Mandate applies to Plaintiffs’ first group health insurance plan-year after August 1, 2012.
180. Annex Medical has been pressured to discontinue its current group health plan. Therefore, absent relief from this Court, the Mandate will apply to the next group health plan Annex Medical provides.
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181. Absent relief from this Court, the Mandate will apply to any group health plan provided by a business owned by Janas.
182. Plaintiffs do not qualify for any of the exemptions to the ACA. 183. Plaintiffs do not qualify for an individual exemption under 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) as Plaintiffs do not object to acceptance of public or private insurance funds in their totality. 184. Annex Medical’s current group health plan also does not qualify as a “grandfathered” group health plan. According to Blue Cross, Annex Medical’s group plan provider, all small business group plans it offers, such as Annex Medical’s plan, are non-grandfathered plans. 185. Even if this were not so, Annex Medical’s plan could not qualify for grandfather status because Annex Medical did not provide the required notification, see 45 CFR § 147.140(a)(2)(i)-(ii), to plan participants that its plan was considered grandfathered (because the plan was not considered grandfathered). 186. Plaintiffs do not qualify as exempt “religious employers” under 45 CFR § 147.130(a)(1)(iv)(A)-(B). 187. Plaintiffs are not “religious” enough under Defendants’ definition of “religious employer” in several respects, including but not limited to because they have purposes other than the “inculcation of religious values,” they do not primarily hire or serve Catholics, and because Plaintiffs current and future businesses are not churches, integrated auxiliaries of particular churches, convention or association of churches, or the exclusively religious activities of a religious order.
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188. Because Plaintiffs do not qualify for the “religious employer” exemption, they are not permitted to take advantage of the “temporary enforcement safe-harbor” as set forth by the Defendants at 77 Fed. Register 8725 and the contemporaneously-issued Guidance.
189. The Mandate requires that Plaintiffs finance coverage for and facilitate access to contraception, sterilization, abortifacient drugs and related education and counseling against their conscience and in violation of their religious beliefs, in a manner that is contrary to law.
190. The Mandate constitutes government-imposed coercion on Plaintiffs to change or violate their sincerely held religious beliefs.
191. The Mandate exposes Plaintiffs to substantial fines for refusal to change or violate their religious beliefs.
192. Pursuant to the Mandate, all insurance issuers must provide coverage for contraception, sterilization, abortion and abortifacient drugs and related counseling services in all group health plans as of August 1, 2012.
193. Defendants have stripped Plaintiffs of any choice to select a group health plan that excludes coverage for these drugs, devices, and services.
194. Plaintiffs are forced to select and pay for a group health plan that includes Mandate-compliant coverage in violation of their religious beliefs.
195. Annex Medical will remove itself from the health insurance market in its entirety on January 31, 2013 rather than comply with the Mandate.
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196. Janas has chosen to forgo future business opportunities rather than comply with the Mandate.
197. The Mandate will place Plaintiffs at a competitive disadvantage in their efforts to recruit and retain employees, in that they will no longer be permitted to offer a group health plan.
198. The Mandate will make it difficult for Plaintiffs to attract quality employees because of uncertainty about health insurance benefits.
199. The Mandate will prevent Plaintiffs from receiving a tax credit available to small businesses who offer group health insurance plans. 26 U.S.C. § 45R.
200. The Mandate will prevent Plaintiffs from exercising their religiously-held duty to provide for the health and welfare of their current and future employees by providing them a group health plan.
201. Plaintiffs have a sincere conscientious religious objection to funding coverage for and facilitating access to contraception, sterilization, abortifacient drugs and related education and counseling.
202. The Mandate directly punishes, with substantial fines and penalties, Plaintiffs’ exercise of their religious beliefs against providing insurance coverage for the above items.
203. The Mandate unconstitutionally coerces Plaintiffs to violate their deeplyheld religious beliefs under threat of these fines and penalties.
204. The Mandate requires Plaintiffs to pay these fines and penalties or exit the insurance market entirely in order to exercise their religious beliefs.
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205. The Mandate imposes substantial burdens on Plaintiffs’ exercise of their sincerely-held religious beliefs.
206. The Mandate also unconstitutionally forces Plaintiffs to fund governmentdictated speech that directly contradicts their own speech and religious beliefs.
207. The Mandate fails to protect the statutory and constitutional conscience rights of religious Americans like Plaintiffs even though those rights were repeatedly raised in the public comments submitted directly to Defendants.
208. Plaintiffs bring this action to enjoin Defendants’ violations of Plaintiffs statutory and constitutional rights and to permit Plaintiffs to operate their current and future businesses in a manner consistent with and not in violation of their sincerely-held religious beliefs.
209. Plaintiffs have no adequate remedy at law. Claims for Relief COUNT I
Violation of the Religious Freedom Restoration Act 42 U.S.C. § 2000bb
210. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this complaint as though fully set forth herein.
211. Plaintiffs’ sincerely-held religious beliefs prohibit them from purchasing or providing coverage for contraception, sterilization, abortifacient drugs and related education and counseling in their employee group health plan.
212. When Plaintiffs adhere to Catholic teaching with regard to contraception, sterilization, abortion, abortifacient drugs and related education and counseling, they
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exercise religion within the meaning of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb (“RFRA”).
213. The Mandate coerces Plaintiffs to change or violate their sincerely-held religious beliefs.
214. The Mandate chills Plaintiffs’ religious exercise. 215. The Mandate imposes substantial fines and penalties on Plaintiffs for exercising their religious beliefs. 216. Plaintiffs’ sincerely-held religious beliefs compel them to provide for the physical health of their employees. 217. When Plaintiffs offer of a group health plan to their employees it is an exercise of their religious beliefs within the meaning of RFRA. 218. The Mandate coerces Plaintiffs to violate their sincerely-held religious beliefs, in that the Mandate coerces Plaintiffs to terminate their employee group health plan. 219. The Mandate exposes Plaintiffs to significant competitive disadvantages, in that they will no longer be able to offer an employee group health plan. 220. The Mandate pressures Janas to forgo future business opportunities because the Mandate prevents him from operating his business in accordance with his religious beliefs. 221. The Mandate imposes a substantial burden on Plaintiffs’ exercise of their religion. 222. The Mandate furthers no compelling government interest.
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223. The Mandate is not narrowly tailored to any compelling government interest.
224. The Mandate is not the least restrictive means of furthering Defendants’ alleged interests.
COUNT II Violation of the Free Exercise Clause of the First Amendment to the United States Constitution 225. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this complaint as though fully set forth herein. 226. Plaintiffs’ sincerely-held religious beliefs prohibit them from purchasing or providing coverage for contraception, sterilization, abortifacient drugs and related education and counseling in their employee group health plan. 227. When Plaintiffs adhere to Catholic teaching with regard to contraception, sterilization, abortion, abortifacient drugs and related education and counseling, they exercise religion within the meaning of the Free Exercise of the First Amendment. 228. The Mandate is not neutral and is not generally applicable. 229. Defendants have created categorical and individualized exemptions to the Mandate. 230. The Mandate furthers no compelling governmental interest. 231. The Mandate is not the least restrictive means of furthering Defendants’ alleged interests. 232. The Mandate coerces Plaintiffs to change or violate their sincerely-held religious beliefs.
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233. The Mandate chills Plaintiffs’ religious exercise. 234. The Mandate imposes substantial fines and penalties on Plaintiffs for exercising their religious beliefs. 235. Plaintiffs’ sincerely-held religious beliefs compel them to provide for the physical health of their employees. 236. When Plaintiffs offer a group health plan to their employees it is an exercise of their religious beliefs within the meaning of the Free Exercise Clause. 237. The Mandate coerces Plaintiffs to violate their sincerely-held religious beliefs, in that the Mandate coerces Plaintiffs to terminate their employee group health plan. 238. The Mandate exposes Plaintiffs to significant competitive disadvantages, in that they will no longer be able to offer an employee group health plan. 239. The Mandate pressures Janas to forgo future business opportunities because the Mandate prevents him from operating his business in accordance with his religious beliefs. 240. The Mandate imposes a substantial burden on Plaintiffs’ exercise of their religion. 241. The Mandate is designed to apply to some religious Americans but not to others, which results in discrimination among religions. 242. The Mandate permits HRSA unlimited discretion to decide to exempt some, all, or no organizations meeting the Defendants’ definition of “religious employers.”
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243. Defendants have created exemptions to the Mandate for some religious believers but not others based on characteristics of their beliefs and the manner in which they exercise them.
244. Despite having prior detailed knowledge of the kind of religious objections contained in this complaint, Defendants designed the Mandate and the religious exemption to the Mandate in a way that made it impossible for Plaintiffs and other similarly situation to comply with their religious beliefs.
245. Defendants promulgated both the Mandate and the religious exemptions thereto with the purpose and intent to suppress the religious exercise of Plaintiffs and others similarly situated.
246. The Mandate violates Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution.
COUNT III Violation of the Establishment Clause of the First Amendment to the United States Constitution 247. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this complaint as though fully set forth herein. 248. The First Amendment’s Establishment Clause prohibits the establishment of any religion as well as excessive government entanglement with religion. 249. The Establishment Clause requires government neutrality in matters of religion.
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250. The Mandate requires Defendants to examine the religious beliefs and teachings of Plaintiffs, and other like them, to determine whether religious persons or entities must comply with the Mandate or whether they are exempt from compliance.
251. Such examination requires continuous surveillance of the religious exercise of Plaintiffs and other similarly situated, leading to an impermissible degree of entanglement in violation of the Establishment Clause.
252. The Mandate discriminates among religions and among denominations, favoring some over others, and exhibits hostility to religious beliefs.
253. The Mandate establishes which individuals and entities are sufficiently religious to warrant exemption from the requirements of the ACA and the Mandate.
254. The Mandate adopts a particular theological view of what is acceptable moral complicity in provision of abortifacient, contraceptive and sterilization coverage and imposes it upon all religionists who must either conform their consciences or suffer penalty.
255. The Mandate violates Plaintiffs’ rights secured to them by the Establishment Clause of the First Amendment of the United States Constitution.
COUNT IV Violation of the Free Speech Clause of the First Amendment to the United States Constitution 256. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this complaint as though fully set forth herein. 257. A business’s conduct and speech relating to the provision of employee health insurance is “speech” protected by the Free Speech Clause.
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258. The Mandate’s requirement that all group health plans provide coverage for education and counsel related to contraceptives, sterilization, and abortifacient drugs forces Plaintiffs’ to subsidize speech and expressive conduct that is directly contrary to their religious beliefs.
259. The Mandate furthers no compelling governmental interest. 260. The Mandate is not narrowly tailored to any compelling governmental interest 261. The Mandate violates Plaintiffs’ rights secured to them by the Free Speech Clause of the First Amendment of the United States Constitution.
COUNT V Violation of the Administrative Procedures Act 262. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this complaint as though fully set forth herein. 263. Because they did not give proper notice and an opportunity for public comment when they promulgated the “preventive care” guidelines, Defendants did not take into account the full implications of the regulations by completing a meaningful consideration of the relevant matter presented. 264. Defendants did not consider or respond to the voluminous comments they received in opposition to the August 1, 2102 interim final rule. 265. Therefore, Defendants have taken agency action not in accordance with procedures required by law, and Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
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266. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the Mandate on Plaintiffs and similar persons.
267. Defendants’ decision to not exempt Plaintiffs and similar organizations is contrary to the evidence submitted during the comment period.
268. Defendants’ issuance of the Mandate was thus arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because Defendants failed to consider the full extent of the Mandate’s implications and they did not take into consideration the evidence against it.
269. The Mandate is also contrary to existing law and is thus in violation of the APA under 5 U.S.C. § 706(2)(A).
270. The Mandate violates RFRA and the First Amendment to the United States Constitution.
271. Some drugs included as “FDA-approved contraceptives,” under the Mandate, such as Ella, can cause abortions by causing the demise of human embryos before and/or after implantation. Therefore, the Mandate is contrary to Section 1303(b)(1)(A) of the ACA which provides that “nothing in this title” . . . “shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.” 42 U.S.C. § 18023(b)(1)(A)(i).
272. WHEREFORE, the Plaintiffs pray for the relief set forth below. Prayer for Relief
Plaintiffs respectfully request the following relief: 1. Plaintiffs request a jury trial on the claims presented herein; 45

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2. Declare that the Mandate and its application to Plaintiffs and other similarly situated violate the Religious Freedom Restoration Act;
3. Declare that the Mandate and its application to Plaintiffs and other similarly situated violate various Clauses of the First Amendment to the United States Constitution;
4. Declare that the Mandate and its application to Plaintiffs and other similarly situated violate the Administrative Procedures Act;
5. Issue a permanent injunction prohibiting Defendants from enforcing the Mandate against Plaintiffs and others with religious objections to providing group health insurance that includes coverage for all FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling for the same.
6. Declare that an insurance issuer that offers a group plan to Plaintiffs and others similarly situated that excludes the coverage required by the Mandate does not violate the ACA or the Mandate.
7. Award Plaintiffs costs and reasonable attorney fees; 8. Award such other relief as the court deems just.
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Respectfully submitted this 2nd day of November, 2012.
s/Erick G. Kaardal Erick G. Kaardal (Minn. 229647) Mohrman & Kaardal, P.A. 33 South Sixth Street, Suite 4100 Minneapolis MN 55402 Telephone: (612) 341-1074 Facsimile: (612) 341-1076 kaardal@mklaw.com Lead Counsel for Plaintiffs Kaylan L. Phillips (Ind. 30405-84)* Zachary S. Kester (Ind. 28630-49)* Noel H. Johnson (Wisc. 1068004)* ActRight Legal Foundation 209 West Main Street Plainfield, Indiana 46168 Telephone (202) 683-9405 Facsimile (888) 815-5641 kphillips@actright.com zkester@actright.com njohnson@actright.com Counsel for Plaintiffs *Pro Hac Vice pending
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

ANNEX MEDICAL, INC.; STUART LIND, and TOM JANAS

Plaintiffs, Civ. No. 12-cv-02804 (DSD/SER)
v.

KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, 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; and UNITED STATES DEPARTMENT OF THE TREASURY,

MEMORANDUM IN SUPPORT OF MOTION FOR
PRELIMINARY INJUNCTION
Hearing Date: January 4, 2013 Time: 9:00 AM

Defendants.

Memorandum in Support of Motion for Preliminary Injunction

Erick G. Kaardal (Minn. 229647) Mohrman & Kaardal, P.A. 33 South Sixth Street, Suite 4100 Minneapolis MN 55402 Telephone: (612) 341-1074 Facsimile: (612) 341-1076 kaardal@mklaw.com Lead Counsel for Plaintiffs

Kaylan L. Phillips (Ind. 30405-84)* Zachary S. Kester (Ind. 28630-49)* Noel H. Johnson (Wisc. 1068004)* ActRight Legal Foundation 209 West Main Street Plainfield, Indiana 46168 Telephone (202) 683-9405 Facsimile (888) 815-5641 kphillips@actright.com zkester@actright.com njohnson@actright.com Counsel for Plaintiffs

*Pro Hac Vice granted Nov. 14, 2012

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Tables of Contents
Table of Authorities.................................................................................................iii Introduction .............................................................................................................. 1
Factual Background .................................................................................................. 2 The Mandate .................................................................................................. 2 Exemptions .................................................................................................... 4 Stuart Lind and Annex Medical .................................................................... 6
Argument ................................................................................................................ 12 I. Lind is Likely to Succeed on the Merits ................................................ 13 A. The Mandate Violates the Religious Freedom Restoration Act ................................................. 13 1. Lind’s Offering and Operation of its Group Health Insurance Plan in Accordance with the Catholic Faith are Exercises of Religious under RFRA........................................................................ 14 2. The Mandate Substantially Burdens Lind’s Exercise of Religion................................................ 16 3. The Mandate Fails Strict Scrutiny...................................... 21 i. The Mandate is Not Justified by a Compelling Interest......................................... 22
ii. The Mandate Does Not Use the Least Restrictive Means............................................ 26
II. Lind Will be Irreparably Harmed Absent Injunctive Relief ........................................................................ 28
III. The Balance of Hardships Strongly Favors Lind................................... 29 IV. The Public Interest Favors an Injunction ............................................... 30
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Table of Authorities
Cases
Anderson v. Celebrezze, 460 U.S. 780 (1983) .......................................................................................... 26
Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011) ................................................................................ 21, 28
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) ............................................................................ 23, 24 n.24
Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) ............................................................................ 30
Elrod v. Burns, 427 U.S. 347 (1976) .......................................................................................... 29
Employment Division v. Smith, 494 U.S. 872 (1990) ...................................................................... 13 n.13, 14, 16
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) ................................................................................... passim
Goodall by Goodall v. Stafford Cnty. School Bd., 60 F.3d 168 (4th Cir. 1995) .............................................................................. 16
Hartmann v. Stone, 68 F.3d 973, 978 (6th Cir. 1995) ............................................................. 13 n.13
Hobby Lobby Stores v. Sebelius, 2012 U.S. Dist. LEXIS 164843 (W.D. Ok. Nov. 19, 2012) ........................ 1 n.2
Iowa Right to Life Committee v. Williams, 187 F.3d 963 (8th Cir. 1999) ............................................................................ 29
Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996)................................................................................ 29
Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) .......................................................................... 28
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Larsen v. U.S. Navy, 346 F. Supp. 2d 122 (D.D.C. 2004) ......................................................... 13 n.13
Legatus v. Sebelius, 2012 U.S. Dist. LEXIS 156144 (E.D. Mich. Oct. 31, 2012) ............ 1 n.2, 22, 28
Love v. Reed, 216 F.3d 682 (8th Cir. 2000) ........................................................................... 14
Minnesota Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864 (8th Cir. 2012) .......................................................................12-13
Newland v. Sebelius, 2012 U.S. Dist. LEXIS 104835 (D. Colo. July 27, 2012) ..........................................1 n.2, 22-23, 25 n.25, 28, 30
O’Brien v. United States HHS, 2012 U.S. Dist. LEXIS 140097 (E.D. Mo. Sept. 28, 2012) ......................... 1 n.2
Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008) ............................................................................ 26
Omar v. Casterline, 414 F. Supp. 2d 582 (W.D. La. 2006) ...................................................... 13 n.13
Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir. 2008) ............................................................................ 30
Rasul v. Myers, 512 F.3d 644 (D.C. Cir. 2008) ................................................................. 13 n.13
Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009) ................................................................. 13 n.13
Rasul v. Rumsfeld, 433 F. Supp. 2d 58 (D.D.C. 2006) ........................................................... 13 n.13
Sherbert v. Verner, 374 U.S. 398 (1963) ............................................................... 1, 13, 16-17, 19-20
Simmons v. United States, 390 U.S. 377 (1968) .......................................................................................... 20
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Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707 (1981).................................................................15 n.14, 17-18, 20
Tyndale House Publrs. v. Sebelius, 2012 U.S. Dist. LEXIS 163965 (D.D.C. Nov. 16, 2012) .................1 n.2, 22-23
United States v. Ali, 682 F.3d 705 (8th Cir. 2012) .............................................................. 14, 15 n.14
United States v. Crystal Evangelical Free Church (In re Young), 82 F.3d 1407 (8th Cir. 1996) .............................................................. 14, 15 n.14
United States v. Playboy Entm’t Group, Inc., 529 U.S. 803 (2000) .......................................................................................... 27
Wisconsin v. Yoder, 406 U.S. 205 (1972)...................................................................13, 15, 17-18, 24
Statutes and Regulations 26 U.S.C. § 1402(g)(1) ....................................................................................... 5, 22 26 U.S.C. § 4980D.............................................................................................. 4, 18 26 U.S.C. § 4980H(a) ......................................................................................... 4, 23 26 U.S.C. § 5000A(d)(2)(a)(i) ........................................................................... 5, 22 42 U.S.C. § 300gg-13 ....................................................................................... 10, 20 42 U.S.C. § 300gg-13(a)......................................................................................... 16 42 U.S.C. § 300gg-13(a)(4) ...................................................................................... 3 42 U.S.C. § 2000bb ......................................................................................... passim 42 U.S.C. § 2000bb-(b)(1) ..................................................................................... 13 42 U.S.C. § 2000bb-1(a) .......................................................................... 13, 21 n.19 42 U.S.C. § 2000bb-1(b) ................................................................................. 14, 21
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42 U.S.C. § 2000bb-2(4) ....................................................................................... 14 42 U.S.C. § 2000cc–5(7)(A)................................................................................... 14 42 U.S.C. § 18011(a)(2) ..................................................................................... 5 n.6 42 U.S.C. § 18011(a)(3-4) .............................................................................. 23 n.23 45 C.F.R. § 147.130(a)(1)(iv)................................................................................... 4 45 C.F.R. § 147.130(a)(1)(iv)(A) ....................................................................... 5 n.8 45 C.F.R. § 147.130(a)(1)(iv)(B) ....................................................................... 5 n.8 45 C.F.R. § 147.140............................................................................................ 5 n.6 45 C.F.R. § 147.140(a)(2)(i)............................................................................... 5 n.7 45 C.F.R. § 147.140(a)(2)(ii).............................................................................. 5 n.7 75 Fed. Reg. 34538 (June 17, 2010)............................................................. 5 n.6, 22 75 Fed. Reg. 41728 (July 19, 2010) ......................................................................... 3 76 Fed. Reg. 46622 (Aug. 1, 2011) ............................................................ 4, 16 n.15 77 Fed. Reg. 8725 (Feb. 15, 2012) ..............................................4-6, 10, 20, 25 n.26 77 Fed. Reg. 16501 (March 21, 2012)............................................................ 18 n.16
Other Authorities Cardinal Burke Says Catholic Employers Cannot Conscientiously Comply
with HHS Regulation, CNS News, http://cnsnews.com/video/national/ cardinal-burke-says-catholic-employers-cannot-conscientiously-complyhhs-regulation.............................................................................................. 7 n.10 FDA Office of Women’s Health, Birth Control Guide, available at www.fda.gov/downloads/ForConsumers/ByAudience/ForWomen/FreeP ublications/UCM282014.pdf ........................................................................ 3 n.5
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Guttmacher Institute, Contraceptive Use in the United States, July 2012 ............. 27 Guttmacher Institute, Facts on Publicly Funded Contraceptive Services in
the United States, May 2012 ............................................................................. 26 HealthReform.gov, “Fact Sheet: Keeping the Health Plan You Have: The
Affordable Care Act and “Grandfathered” Health Plans,” http://www.healthreform.gov/newsroom/keeping_the_health_plan_you_ have.html ....................................................................................................... 5 n.6 HHS Mandate Information Central, The Beckett Fund, http://www.becketfund.org/hhsinformationcentral/.................................. 22 n.20 HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines ........................................ 3 INSTITUTE FOR MEDICINE, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS (2011) .......................................... 3 n.4 Mission Statement, Annex Medical Inc., http://www.annexmedical.com/About_Us.html ......................................... 8 n.11 Press Release, A statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, Jan. 20, 2012, http://www.hhs.gov/news/press/2012pres/01/20120 120a.html ....................... 27
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Introduction
“No liberty is more essential to the continued vitality of the free society which our Constitution guarantees than is the religious liberty protected by the Free Exercise Clause….” Sherbert v. Verner, 374 U.S. 398, 413 (1963). (Stewart, J., concurring in result). Yet this “essential” liberty is now under attack by the Defendants, who seek to force Stuart Lind1 and millions other citizens of faith to violate their sincerely-held religious beliefs solely because they operate a business within this country. Defendants have mandated, under penalty of law, that all employers offering employee group health insurance must pay for coverage for contraception, sterilization, and abortifacient drugs. Defendants’ mandate disregards the religious conscience rights of millions of Americans like Lind and imposes a “substantial burden” on their free exercise of religion in violation of the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et. seq.2
The burdens imposed on Lind’s religious freedom are unjustified under Supreme Court precedent. Defendants’ asserted interests in the Mandate are not “compelling,” but wholly undermined by the multitude of exemptions, both secular and religious, that
1 In this memorandum, “Lind” refers to plaintiffs Annex Medical, Inc. and Stuart Lind. Where necessary, they will be referred to individually. 2 To date, three district courts have enjoined enforcement of the mandate against forprofit businesses who alleged, among other claims, that it violates their rights under RFRA. See Newland v. Sebelius, 2012 U.S. Dist. LEXIS 104835 (D. Colo. July 27, 2012); Legatus v. Sebelius, 2012 U.S. Dist. LEXIS 156144 (E.D. Mich. Oct. 31, 2012); Tyndale House Publrs. v. Sebelius, 2012 U.S. Dist. LEXIS 163965 (D.D.C. Nov. 16, 2012). Two district courts have declined to enter an injunction. See O’Brien v. United States HHS, 2012 U.S. Dist. LEXIS 140097 (E.D. Mo. Sept. 28, 2012); Hobby Lobby Stores v. Sebelius, 2012 U.S. Dist. LEXIS 164843 (W.D. Ok. Nov. 19, 2012).
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permit nearly 200 million individuals to avoid providing the mandated coverage. Defendants have also failed to use means that impose the least restrictions on religious exercise to further any interest they may have in facilitating free access to birth control products and services.
Defendants have made it impossible for Lind to conduct business in accordance with the Catholic faith. If he continues offering health insurance, he must pay for products and services that violate his sincerely-held religious beliefs. If he excludes these items, he must pay substantial monetary fines. The option to eliminate insurance altogether provides Lind no relief because it requires him to neglect his religiously-held duty to provide for the physical needs of Annex Medical’s employees. Moreover, discontinuing insurance places Lind at a significant competitive disadvantage vis-à-vis its competitors who may freely offer health coverage without violating their consciences.
The mandate has forced Lind’s hand. Absent relief from this court, he will be forced to terminate Annex Medical’s health plan, effective January 31, 2013. Annex Medical and Lind have therefore filed this motion for a preliminary injunction, seeking to enjoin enforcement of the Mandate prior to January 31, 2013, to permit them to purchase a group health plan that accords with the Catholic faith. Absent relief, they will be irreparably harmed.
Factual Background
The Mandate On March 23, 2010, the Patient Protection and Affordable Care Act (“ACA”) was
signed into law by President Barack Obama. The ACA requires all group health plans to 2

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provide, at no-cost, “preventive care and screenings” for women “as provided for in comprehensive guidelines supported by the Health Resources and Services Administration” (“HRSA”).3 42 U.S.C. § 300gg-13(a)(4). Defendants issued regulations ordering HRSA to determine which women’s “preventive care and screenings” would be required under the ACA. 75 Fed. Reg. 41728 (July 19, 2010). HRSA directed a private organization, the Institute of Medicine (“IOM”), to create guidelines describing which drugs and services should be required as preventive care in all group health plans. IOM recommended that preventive care for women include “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling.”4 FDA-approved “contraceptive methods” include birthcontrol pills, implanted contraceptive devices, and the abortifacient drugs Plan B (the “morning after pill”) and Ella (the “week after pill”).5
Without notice of rulemaking or opportunity for public comment, HRSA adopted IOM’s recommendations in full. See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines (last visited Nov. 21, 2012) (“HRSA Guidelines”). On August 1, 2011, Defendants issued an “interim final rule” adopting the HRSA Guidelines and mandating that all “group health plan[s] 3 HRSA is an agency of U.S. Department of Health and Human Services (“HHS”). 4 INSTITUTE FOR MEDICINE, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS (2011) 109-10, available at http://cnsnews.com/sites/default/files/documents/PREVENTIVE%20SERVICESIOM%20REPORT.pdf (last visited Nov. 21, 2012). 5 FDA Office of Women’s Health, Birth Control Guide, available at http://www.fda.gov/downloads/ForConsumers/ByAudience/ForWomen/FreePublications/ UCM282014.pdf (last visited Nov. 21, 2012).
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and … health insurance issuer[s] offering group or individual insurance coverage provide benefits for and prohibit the imposition of cost-sharing with respect to” the women’s preventive care and services included in the HRSA Guidelines for plan years beginning on or after August 1, 2012. 76 Fed. Reg. 46622, 46629 (issued on Aug. 1, and published on Aug. 3, 2011); 45 C.F.R. § 147.130(a)(1)(iv). On February 15, 2012, Defendants issued final regulations by adopting the August 1 interim final rule “without change.” 77 Fed. Reg. 8725-30 (Feb. 15, 2012) (the “Mandate”). Exemptions
The ACA and the Mandate do not apply equally to all employers and individuals, but contain several exemptions. Employers with fewer than fifty employees are exempted from the ACA’s requirement to provide employee health insurance coverage. See 26 U.S.C. § 4980H(a) (imposing an “assessable payment” on employers with fifty or more employees who fail to offer ACA-compliant health coverage). However, all employers that offer a group health plan, such as Lind, must comply with the Mandate or face substantial fines and penalties. See 26 U.S.C. § 4980D (imposing $100 per-day, peremployee fine on employers that offer group health plans that do not comply with the coverage requirements of the Mandate); 29 U.S.C. § 1132(a) (providing for civil enforcement actions brought by the Department of Labor and insurance plan participants).
Group health plans in existence on or before March 23, 2010 are considered “grandfathered,” and exempt from the Mandate indefinitely if they comply with certain
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requirements and avoid certain changes in coverage.6 Annex Medical’s group health plan
does not qualify for an exemption as a “grandfathered” plan.7
Defendants have also exempted from the Mandate certain non-profit employers
they define as “religious,” 45 C.F.R. § 147.130 (a)(iv)(A) and (B),8 and individuals of
certain religions who object to the acceptance of insurance benefits, 26 U.S.C. §§
5000A(d)(2)(a)(i); 1402(g)(1).
Defendants’ limited exemption for “religious employers” was allegedly based on
comments received in response to the various regulations issued by Defendants. These
comments presented Defendants with countless objections from religious citizens and
business owners who explained that the Mandate was wholly contrary to their religious
beliefs. See 77 Fed. Reg. at 8726-27. Defendants were warned that “if the definition of
6 See 42 U.S.C. § 18011(a)(2); 45 C.F.R. § 147.140; 75 Fed. Reg. 34538, 34545 (June 17, 2010); see also HealthReform.gov, “Fact Sheet: Keeping the Health Plan You Have: The Affordable Care Act and “Grandfathered” Health Plans,” http://www.healthreform.gov/ newsroom/keeping_the_health_plan_you_have.html (last visited Nov. 15, 2012). 7 According to Blue Cross and Blue Shield of Minnesota, Annex Medical’s group plan provider, all small business plans it offersare non-grandfathered plans. Even if this were not so, Annex Medical’s plan could not qualify for grandfather status because Annex Medical did not provide the required notification, see 45 C.F.R. § 147.140(a)(2)(i)-(ii), to plan participants that the plan was considered grandfathered (because the plan was not considered grandfathered). 8 Defendants’ exemptions for “religious employers” requires:
(1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 45 C.F.R. § 147.130(a)(iv)(B)(1)-(4).
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religious employer is not broadened, [employers] could cease to offer health coverage to their employees in order to avoid having to offer coverage to which they object on religious grounds.” Id. at 8727. These consequences were presumably acceptable to Defendants, who, in the face of these objections, chose not to expand this exemption beyond an extremely limited subset of religious non-profit entities. See supra note 8; 77 Fed. Reg. at 8727. Thus, despite his sincere religious beliefs, the Mandate makes no exemption for Lind and other religiously-motivated business owners. Stuart Lind and Annex Medical
Plaintiff Annex Medical, Inc. is a Minnesota-based manufacturer of medical devices. (Verified Complaint for Declaratory and Injunctive Relief (“VC”) ¶ 36 (Dkt. 1, filed Nov. 2, 2012).) Plaintiff Stuart Lind owns and operates Annex Medical as well as a separate entity, Sacred Heart Medical, Inc., which sells products developed by Annex Medical. (VC ¶¶ 35, 66, 69.) Annex Medical was incorporated in 1988 and has been a family-owned business since 1991. (Declaration of Stuart Lind (“Lind Decl.”) ¶¶ 5-6.)9
Lind is a devout Catholic who is steadfastly committed to following the religious, ethical and moral teachings of the Catholic Church. (VC ¶ 44.) As a practicing Catholic, Lind believes that “[h]uman life must be respected and protected absolutely from the moment of conception.” Catechism of the Catholic Church, ¶ 2270. In accordance with Pope Paul VI’s 1968 encyclical Humanae Vitae, Lind also believes that “any action which either before, at the moment of, or after sexual intercourse, is specifically intended 9 Annex Medical’s shareholders consist of Stuart Lind, who owns approximately 96.5% of the shares, and the estate of his recently deceased father, Dean Lind, which owns the remaining shares. (Lind Decl. ¶ 6.)
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to prevent procreation” is a grave sin. (VC ¶ 48; Declaration of Father John Echert (“Echert Decl.”) ¶ 6.) Consistently, the Catholic Church teaches that contraception, sterilization, abortion and use of abortifacient drugs are intrinsically evil and immoral because they are capable of preventing and destroying a human life. (VC ¶ 49.) It is not just use of these things that is sinful, but also “cooperation” with them, meaning that anyone who provides for or facilitates access to contraception is also guilty of a sin. (VC ¶ 51; Echert Decl. ¶ 5.) For this reason, Catholic leaders have explained that Catholic employers cannot do what the Mandate requires—pay for group health insurance that provides coverage for contraception, sterilization and abortifacient drugs—without violating the Catholic faith.10 (Id.) Lind therefore sincerely believes it is immoral and sinful to intentionally participate in, pay for, facilitate access to, or otherwise support contraception, sterilization, abortifacient drugs, and related education and counseling through their inclusion in Annex Medical group health plan, as is required by the Mandate. (VC ¶ 54-55; Echert Decl. ¶ 7.)
For centuries, the Catholic Church has heeded Jesus’ command to “Heal the sick.” Matthew 10:8 (New International Version). The Church teaches
Life and physical health are precious gifts entrusted to us by God. We must take reasonable care of them, taking into account the needs of others and the common good.
10 Cardinal Burke Says Catholic Employers Cannot Conscientiously Comply with HHS Regulation, CNS News, http://cnsnews.com/video/national/cardinal-burke-says-catholicemployers-cannot-conscientiously-comply-hhs-regulation (video interview explaining that employers who comply with the mandate are formally cooperating with the sin of contraception).
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Concern for the health of its citizens requires that society help in the attainment of living-conditions that allow them to grow and reach maturity: food and clothing, housing, health care, basic education, employment, and social assistance. Catechism of the Catholic Church, ¶ 2288 (emphasis added). (VC ¶ 56.) Consistent with this teaching, Lind sincerely believes he has a duty to provide for the physical needs of his employees. (VC ¶ 58; Echert Decl. ¶ 8 (“Catholic social teaching supports the principle that workers have a right to a just wage and certain social benefits intended to ensure the life and health of workers.”)) As part of his commitment to fulfilling this moral and religious duty, Lind has provided a group health insurance plan for his employees and their families. (VC ¶ 59.) Since 1998, Lind has provided insurance through Blue Cross and Blue Shield of Minnesota (“Blue Cross”). (VC ¶ 60.) As his commitment to offering employee health insurance evinces, Lind does not believe his Catholic faith is to be expressed solely in his private life. He strives, as he believes he must, to adhere to Catholic teachings in all aspects of his life, including his operation of his businesses. (VC ¶¶ 45-46, 70.) Lind has adopted mission statements that commit his companies to “conducting business in a way that is pleasing to God and is faithful to Biblical principles and values.”11 (VC ¶ 71; Lind Decl. ¶ 12.) In 2001, Lind officially consecrated his businesses to the Sacred Heart of Jesus, a public profession of Lind’s faith and a formal commitment to operate his businesses in accordance with the teaching of Jesus Christ. (VC ¶ 72; Lind Decl. ¶ 13.)
11 Mission Statement, Annex Medical Inc., http://www.annexmedical.com/About _Us.html (last visited Nov. 21, 2012)
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Consistent with his commitment, Lind’s operation of his companies reflects his sincere religious beliefs. (Lind Decl. ¶ 14.) When Lind’s businesses engage in or cooperate with activity that violates Catholic teaching, he believes it is a violation of his own religious beliefs. (Lind Decl. ¶ 15.) Consequently, when Lind’s businesses have engaged in or cooperated with activities that violate Catholic teaching on the sanctity of life, he has attempted, where possible, to cause them to cease such activity or cooperation with the same. (Lind Decl. ¶ 16.) For example, in 1998, Lind made the difficult and costly decision to discontinue Annex Medical’s line of heart biopsy forceps after learning they were being used on transplanted hearts that most likely were removed from donors prematurely, causing the death of the donor. (Lind Decl. ¶ 17.) Lind discontinued this promising product line so as to not be complicit with this morally unacceptable act. (Id.) Then in 2001, Lind ended his seven-year relationship with American Express, which he was using to facilitate his employee retirement plans, upon learning that American Express contributes money to Planned Parenthood, a provider of abortion and abortion services. (VC ¶ 76; Exhibit B to Lind Decl.)
Lind has also taken proactive steps to ensure that his businesses do not cooperate with activities he believes are sinful and immoral, including contraception, sterilization and abortion. (Lind Decl. ¶ 19.) For example, distributors and sales representatives that contract with Sacred Heart Medical to purchase and market products manufactured by Annex Medical must represent that they will “at no time distribute or represent products that are labeled with indications for contraception, sterilization, abortion, pregnancy termination, or in vitro fertilization.” (VC ¶ 74; Exhibit C to Lind Decl.)
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The national controversy surrounding the Mandate caused Lind to verify whether Annex Medical’s group health plan accorded with his religious beliefs. (VC ¶¶ 82-83; Lind Decl. ¶ 20.) During the examination of Annex Medical’s insurance policy, Lind discovered that his current plan provided coverage for abortions, abortifacient drugs, sterilization and contraception. (VC ¶ 83.)12 Coverage for these drugs and services was not included knowingly as to do so would be contrary to Lind’s sincerely-held religious beliefs. (VC ¶ 84.)
Upon discovering this mistake, Lind immediately contacted Blue Cross and requested that Annex Medical’s group plan be modified to exclude coverage for all contraception, sterilization, and abortifacient drugs. (VC ¶ 85.) Blue Cross informed Lind that such a modification could not be made because Blue Cross requires all group health plans issued to employers with fewer than 50 employees to include coverage for contraception, sterilization, and abortifacient drugs. (VC ¶ 65.) Lind then inquired with three other Minnesota insurance providers as to whether he could purchase a group health plan that did not include coverage for these items, but none of the providers could offer such a group plan (VC ¶ 87-88), because the Mandate requires all insurance issuers to include Mandate-compliant coverage in all group health plans purchased after August 1, 2012. See 42 U.S.C. § 300gg-13; 77 Fed. Reg. at 8725-26. In other words, Lind is now
12 Annex Medical’s group plan is not currently subject to the Mandate because its plan year began prior to the Mandate’s August 1, 2012 effective date. See 77 Fed. Reg. at 8725-26. Therefore, these drugs and services are being provided at cost to the employee. Inevitably though, Annex Medical will be required to provide them at no cost when its group plan becomes subject to the Mandate on the date of its next schedule annual renewal. Id.
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stripped of any choice to select a new group health plan that provides coverage in line with the Catholic faith. Lind cannot provide a group health plan without violating his religious beliefs. (VC ¶ 89.)
The option to discontinue health coverage without incurring monetary penalties provides Lind no relief. As explained, Lind believes he has a moral and religious duty to provide health care for Annex Medical’s employees and he does so as an exercise of his religious beliefs. (VC ¶¶ 58-59, 91; Lind Decl. ¶ 10.) The Mandate forces Lind to neglect this duty and prevents him from freely engaging in this religious exercise because to do so would require materially cooperation with the sins of contraception, sterilization and abortifacient drugs. In short, the Mandate imposes a substantial burden on Lind’s exercise of religion.
After several consultations with his pastor, Lind determined he must discontinue Annex Medical’s group health plan to avoid violating his religious beliefs. (VC ¶¶ 91-93; Lind Decl. ¶¶ 31-32; Echert Decl. ¶ 4.) On October 22, 2012, Lind held a company meeting at which he notified his employees of his decision to discontinue their group health plan effective January 31, 2013. (VC ¶ 94; Lind Decl. ¶ 33; Exhibit D to Lind Decl.) After the announcement, Lind’s pastor explained in detail why the Mandate was morally and religiously problematic for Lind. (Lind Decl. ¶ 34; Echer Decl. ¶ 5.)
Coerced to discontinue Annex Medical’s group plan, Lind must now suffer additional burdens. Annex Medical will face significant competitive disadvantages in the marketplace, in that it will not be able to offer current and prospective employees the important benefit of health insurance, whereas other employers will be able to do so
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without violating their consciences. (VC ¶ 96.) Lind is concerned this may make it more difficult to attract and retain employees who possess the necessary dexterity to produce the delicate wire assemblies in Annex Medical’s products. (Lind Decl. ¶ 35.) Annex Medical must also forfeit a tax credit available to small businesses that offer group health insurance plans. 26 U.S.C. § 45R.
Lind simply wishes to operate Annex Medical in accordance with the Catholic faith and his religiously-held duties, and would do so, but for the Mandate. Unless this Court provides immediate relief, Annex Medical’s group health plan will terminate and Lind will be irreparably harmed.
Ar gument
The “issuance of a preliminary injunction depends upon a ‘flexible’ consideration of (1) the threat of irreparable harm to the moving party; (2) balancing this harm with any injury an injunction would inflict on other interested parties; (3) the probability that the moving party would succeed on the merits; and (4) the effect on the public interest.” Minnesota Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 870 (8th Cir. 2012) (“MCCL”) (internal citations omitted).
“[T]he burdens at the preliminary injunction stage track the burdens at trial.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006). So under strict scrutiny, the government, even at the preliminary-injunction stage, must prove that the Mandate is narrowly tailored to a compelling interest and that lessrestrictive means are inadequate to serve the interest. See id. at 428-29.
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“When a Plaintiff has shown a likely violation of his or her First Amendment
rights, the other requirements for obtaining a preliminary injunction are generally deemed
to have been satisfied.” MCCL, 692 F.3d at 870 (internal citations and quotations
omitted).
I. Lind is Likely to Succeed on the Merits.
A. The Mandate Violates the Religious Freedom Restoration Act.
In 1993, Congress passed the Religious Freedom Restoration Act (“RFRA”) “to
restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963)
and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases
where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb-(b)(1).
Under RFRA, the federal government is strictly prohibited from “substantially
burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability.”13 Id. § 2000bb-1(a). RFRA recognizes only one exception, which
“requires the Government to satisfy the compelling interest test—‘to demonstrate that
13 To be clear, Lind’s argument that RFRA applies to the Mandate is not a concession that the Mandate or its accommodations are neutral laws of general applicability. Rather, the Mandate and its accommodations are facially discriminatory laws that result in discriminatory actions by Defendants. RFRA applies to both facially discriminatory laws and neutral laws of general applicability—“[t]he statutory phrase ‘even if’ implies application in [instances of facially discriminatory law and action] as well.” Rasul v. Rumsfeld, 433 F. Supp. 2d 58, 69 n.10 (D.D.C. 2006) (citing Omar v. Casterline, 414 F. Supp. 2d 582, 594 (W.D. La. 2006)), rev’d on other grounds sub nom. Rasul v. Myers, 512 F.3d 644 (D.C. Cir. 2008) cert. granted, judgment vacated, 555 U.S. 1083, 129 S.Ct. 763, 172 L. Ed. 2d 753 (2008) and rev’d on other grounds sub nom. Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009). But see Hartmann v. Stone, 68 F.3d 973, 978 (6th Cir. 1995) (RFRA only overruled Employment Division v. Smith, 494 U.S. 872 (1990), and therefore does not apply to laws that are not neutral); Larsen v. U.S. Navy, 346 F. Supp. 2d 122, 137 (D.D.C. 2004) (holding the same as Hartmann).
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application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.’” O Centro, 546 U.S. at 424 (quoting 42 U.S.C § 2000bb-1(b)). The government may not use a “categorical approach” to satisfy the compelling interest test; rather, RFRA requires the government to satisfy the compelling interest test “through application of the challenged law to … the particular claimant whose sincere exercise of religion is being substantially burdened.” O Centro, 546 U.S. at 430-31.
1. Lind’s Offering and Operation of his Group Health Insurance Plan in Accordance with the Catholic Faith are Exercises of Religion under RFRA.
RFRA defines “exercise of religion” to “include[] any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” See 42 U.S.C. § 2000cc-5(7)(A) (defining “religious exercise” in 42 U.S.C. § 2000bb-2(4)). See also United States v. Crystal Evangelical Free Church (In re Young), 82 F.3d 1407, 1418 (8th Cir. 1996) (explaining that RFRA protects “religiously motivated as well as religiously compelled conduct”). RFRA’s “guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect.” United States v. Ali, 682 F.3d 705, 710 (8th Cir. 2012) (citations and quotations omitted). Beliefs need not be purely religious, but “can be both secular and religious.” Love v. Reed, 216 F.3d 682, 689 (8th Cir. 2000).
“Exercise of religion” is not constrained to “belief and profession” but includes the “performance of (or abstention from) physical acts.” Employment Division v. Smith, 494 U.S. 872, 877 (1990) (emphasis added). Indeed, the very cases which form the basis for
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RFRA involved litigants whose religious beliefs required them to refrain from engaging in certain conduct. Verner, 374 U.S. 398 (plaintiff’s religious beliefs forbade her to work on Saturdays); Yoder, 406 U.S. 205 (plaintiffs’ religious beliefs forbade them from enrolling their children in public school beyond the eighth grade).
As explained, Lind strives, as he believes he must, to adhere to Catholic teachings in all aspects of his life, including his operation of Annex Medical. As RFRA contemplates, Lind’s adherence to his faith in operating Annex Medical is manifested in both the “performance of” and “abstention from” certain conduct. Lind sincerely believes he has a moral and religious duty to provide for the physical needs of his employees. Lind exercises this belief by providing a group health insurance plan to Annex Medical’s employees. Thus, the offering of a group health plan to Annex Medical’s employees is an exercise of religion within the meaning of RFRA.
However, in accordance with the Catholic faith, Lind also sincerely believes it is sinful and immoral to provide coverage in Annex Medical’s group health plan for contraception, sterilization, abortion, abortifacient drugs and related education and counseling. Upon discovering that his current group health plan inadvertently included coverage for some of these forbidden items, Lind immediately sought to conform Annex Medical’s plan to his religious beliefs.14 But Defendants have made it impossible for him
14 This coverage was not included knowingly in Annex Medical’s group health plan. Even if it were intentional, the fact that Lind has not always excluded coverage for these items is immaterial. See Ali, 682 F.3d at 710 (“[F]ocusing on [an] ‘inconsistent’ application of [a] belief…is not appropriate in the RFRA context.”); see also Thomas v. Review Bd. of the Indiana Employment Sec. Div., 450 U.S. 707, 714 (1981) (“Religious
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to do so. The Mandate applies equally to employers and “health insurance issuer[s] offering group…health coverage,” 42 U.S.C. § 300gg-13(a), thus, Lind is prevented from selecting a new group health plan that does not contain coverage that violates his religious beliefs. Yet he desires to do so. The operation of Annex Medical’s group health plan in accordance with the Catholic religious belief against cooperation with contraception, sterilization and abortifacient drugs is an exercise of religion within the meaning of RFRA.15
2. The Mandate Substantially Burdens Lind’s Exercise of Religion. RFRA does not define “substantial burden.” Therefore, courts frequently look to free exercise cases predating Employment Division v. Smith to evaluate the substantiality of burdens on religious exercise. See e.g., Goodall by Goodall v. Stafford Cnty. School Bd., 60 F.3d 168, 171 (4th Cir. 1995) (“we may look to pre-RFRA cases in order to assess burden on the plaintiffs for their RFRA claim”). The Supreme Court cases that form the basis for RFRA are especially relevant. In Sherbert v. Verner, the appellant was denied unemployment benefits due to her refusal to
beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”) 15 In the August 1, 2011 regulations in which Defendants explain their decision to permit exemptions from the Mandate for certain religious employers, Defendants note that “it is appropriate that HRSA…takes into account the effect on the religious beliefs of certain religious employers if coverage of contraceptive services were required in the group health plans in which employees in certain religious positions participate.” 76 Fed. Reg. at 46623. Defendants have thus implicitly conceded that employers are engaged in an “exercise of religion” when they abstain from providing coverage for contraception, sterilization, and abortifacient drugs.
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work on Saturday, the Sabbath Day of her faith. 374 U.S. at 399-401. The Court found this placed an impermissible burden on her free exercise of religion because it “force[d] her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” Id. at 404. Even though the government did not “directly compel” the appellant to work on Saturday in violation of her faith, the Court found the “pressure” on her to do so was “unmistakable.” Id.
In Wisconsin v. Yoder, Amish parents whose religious beliefs required that they educate their children at home after the eighth grade were fined five dollars each for violating Wisconsin’s compulsory school-attendance law. 406 U.S. at 208. The Court affirmed the lower court’s decision to strike the law, finding that it created a “severe” and “inescapable” impact on the practice of the Amish religion because it “affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” Id. at 218.
Also instructive is Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707 (1981). There, a Jehovah’s Witness was denied unemployment benefits because he quit his job that required him to produce armaments in violation of his religious beliefs against working on the production of weapons. Id. at 710-11. The Court reemphasized that even “indirect” compulsion to violate one’s beliefs constitutes a substantial burden on free exercise of religion— “Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent
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to modify his behavior and to violate his beliefs, a burden upon religion exists.” Id. at 717-18.
As in Yoder, the Mandate “affirmatively compels” Lind to “perform acts undeniably at odds with fundamental tenets of [his] religious beliefs,” Thomas, 450 U.S. 707—he must include cost-free coverage for contraception, sterilization, and abortifacient drugs in any group health plan he offers. This is more than a substantial burden; it is essentially a requirement that he conduct business in a way that violates his faith. The consequences for offering a non-compliant group health plan are substantial— (1) a $100 per day, per employee, 26 U.S.C. § 4980D, dwarfing the five dollar fine the Yoder Court viewed as creating a “severe” and “inescapable” impact on practice of the Amish religion, Yoder, 406 U.S. at 21816; and (2) civil enforcement actions brought by the Department of Labor and insurance plan participants, 29 U.S.C. § 1132(a).
Lind’s “option” to terminate Annex Medical’s health care plan without incurring monetary penalties does not eliminate the substantial burden on his religious exercise for the consequences of terminating Annex Medical’s plan likewise put “substantial pressure,” Thomas, 450 U.S. at 718, on him to purchase insurance and provide
16 Defendants have all but conceded that the Mandate imposes burdens on employers’ religious exercise. Not only have Defendants already exempted some “religious employers” who object to providing coverage for contraception services, 45 C.F.R. § 147.130(a)(1)(iv)(A)-(B), but Defendants are currently developing changes to the Mandate that would further “accommodat[e] non-exempt, non-profit religious organizations’ religious objections to covering contraception services.” 77 Fed. Reg. 16501, 16503 (March 21, 2012).
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contraception, sterilization and abortifacient drugs—in other words, to “modify his behavior and to violate his beliefs, id. 17
As explained, Lind sincerely believes he has moral and religious duty to provide
for the physical needs of his employees. (Lind Decl. ¶ 10; Echert Decl. ¶¶ 8-9.) If he must
terminate their health care plan, he must neglect this duty, and potentially force his
employees to secure their own insurance on the more expensive individual market.
Annex Medical will also be exposed to significant competitive disadvantages in that it
will be unable to offer current and prospective employees an important part of the Annex
Medical’s benefits package. This may make it more difficult to attract and retain
employees who possess the necessary dexterity to produce the delicate wire assemblies in Annex Medical’s products.18 (Lind Decl. ¶ 35.) Moreover, Annex Medical must forfeit a
tax credit available to small businesses that offer group health insurance plans. 26 U.S.C.
§ 45R.
These burdens are far more substantial than those the Supreme Court has previous
struck. In Sherbert, the appellant’s religious observance of her Sabbath rendered her
merely ineligible for unemployment benefits, yet the Court found her ineligibility placed
17 The availability of “exit options” does not alter the “substantial burden” analysis. Of course, the Yoders could have moved their family out of Wisconsin and to a state where they would not have not faced penalties for removing their children from public schools. This “option” did not alter the Court’s opinion that the $5 fine created a “substantial burden” on the Yoder’s free exercise of religion. 18 The wires in these assemblies are about the same thickness as a human hair, requiring Annex Medical’s employees to have very fine finger dexterity. More than half of those Annex Medical has hired for this work have been unable to complete the introduction period because the job was beyond their capability. The dexterity requirement has made obtaining workers difficult. (Lind Decl. ¶ 35.)
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“unmistakable” pressure on her to forego that observance. Id. at 404. See also Thomas, 450 U.S. at 717 (finding the “coercive impact” on free exercise resulting from denial of employment benefits to be “indistinguishable from Sherbert”).
Lind’s inadvertent inclusion of contraception and abortifacient drugs in Annex Medical’s current group plan necessitates that he finds a group plan that excludes this coverage right now. Yet, the Mandate has made that impossible. Defendants have stripped Lind of any choice to select a group plan that accords with his beliefs because the Mandate requires all insurance issuers to include Mandate-compliant coverage in all group health plans purchased after August 1, 2012. See 42 U.S.C. § 300gg-13; 77 Fed. Reg. at 8725-26.
The Mandate has thus forced Lind’s hand. He has concluded he must, absent relief from this court, terminate Annex Medical’s group health plan, and endure the substantial burdens noted above, to avoid violating his sincerely-held belief against cooperation with contraception, sterilization and abortifacient drugs.
Thus, as in Sherbert, the Mandate has put Lind to a choice. But unlike Sherbert, Lind must choose between two exercises of religion—fulfill his religiously-held duty to provide employee health care and violate his beliefs with respect to contraception or abstain from cooperation with contraception and violate his religiously-held duty to provide employee health care. Not only does this choice force Lind to “modify his behavior and to violate his beliefs,” Thomas, 450 U.S. at 718, i.e., impose a substantial burden, it imposes an unconstitutional condition on his free exercise rights. Simmons v.
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United States, 390 U.S. 377, 394 (1968) (finding it “intolerable that one constitutional right should have to be surrendered in order to assert another”).
Because of the Mandate, Lind has determined that he must terminate Annex Medical’s group health plan, unless he receives the requested relief from this Court, permitting his to select a new group health plan that conforms to his Catholic faith.
3. The Mandate Fails Strict Scrutiny. Because the Mandate imposes “substantial burdens” on Lind’s religious exercise, it must satisfy strict scrutiny. Defendants must demonstrate that the Mandate “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. 2000bb-1(b)(1)-(2). The government must satisfy strict scrutiny “through application of the challenged law to…the particular claimant whose sincere exercise of religion is being substantially burdened.” O Centro, 546 U.S. at 430-31. In other words, this Court must look beyond the government’s “broadly formulated interests justifying the general applicability of [the Mandate] and scrutinize[] the asserted harm of granting specific exemptions to [Lind].” Id. at 431.19 Defendants must “specifically identify an ‘actual problem’ in need of solving,” and show that substantially burdening Lind’s free exercise of religion is “actually necessary to the solution.” Brown v. Entm’t Merchs. Ass’n, 131 S.Ct. 2729, 2738 (2011). 19 As explained, supra note 13, Lind’s argument that RFRA applies to the Mandate is not a concession that the Mandate or its accommodations are neutral laws of general applicability. But even if Defendants argue the Mandate is neutral and generally applicable, RFRA requires this Court to apply strict scrutiny. See 42 U.S.C. § 2000bb1(a).
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i. The Mandate is Not Justified by a Compelling Interest. In defending the numerous challenges20 to the Mandate throughout the country, Defendants have advanced two primary justifications for the Mandate—providing and equalizing health care for women. Even assuming the coverage required by the Mandate promotes these abstract interests, the Mandate must fail strict scrutiny because Defendants’ interests cannot be considered “compelling” in light of the millions of people Defendants have voluntarily exempted from providing women’s preventive care. By the Defendants’ own calculation, approximately 191 million people belong to health care plans that may be “grandfathered” under the ACA. See Newland, 2012 U.S. Dist. LEXIS 104835 at 1 (citing 75 Fed. Reg. at 34550); Tyndale House Publrs., 2012 U.S. Dist. LEXIS 163965 at 60 (same); Legatus, 2012 U.S. Dist. LEXIS 156144 at 29 (estimating 193 million people in grandfathered plans and granting preliminary injunction against Mandate). The Mandate is also inapplicable to “member[s] of a recognized religious sect or division thereof” who are “conscientiously opposed to acceptance of the benefits of any private or public insurance.” 26 U.S.C. §§ 5000A(d)(2)(a)(i), 1402(g)(1). Defendants have also exempted employers, such as Lind, with fewer than fifty employees,21 26
20 To date, 40 challenges have been brought against the Defendants by individuals, businesses and organizations who believe the Mandate violates their right to free exercise of religion. See HHS Mandate Information Central, The Beckett Fund, http://www.becketfund.org/hhsinformationcentral/ (last visited Nov. 21, 2012). 21 Most notably, it is difficult to see how Defendants could argue they have a compelling interest in enforcing the Mandate against Lind given their decision to exempt Annex Medical from the ACA’s requirement to provide group health insurance (which functionally exempts him from offering coverage for contraception). The government’s
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U.S.C. § 4980H(a), and entities they define as “religious employers,” i.e. churches, from
compliance with the Mandate. 45 C.F.R. § 147.130(a)(iv)(A).
“[T]his massive exemption completely undermines any compelling interest in applying the…mandate to [Lind].”22 Newland, 2012 U.S. Dist. LEXIS 104835 at 22; see
also Tyndale House Publrs., 2012 U.S. Dist. LEXIS 163965 at 60 (same). Under strict
scrutiny, “a law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.”23 Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (quotations and
citations omitted). Defendants therefore cannot assert an interest “of the highest order” in
forcing Lind to comply with the Mandate and violate his beliefs because Defendants have
allowed “appreciable damage” to the over 190 million individuals they have consciously
exempted from the Mandate. Defendants’ alleged interests are simply not compelling
when they have “fail[ed] to enact feasible measures to restrict other conduct producing
substantial harm or alleged harm of the same sort.” Id. at 546-47. The Mandate must
necessarily give way to Lind’s faith, as “[o]nly those interests of the highest order and
alleged interests in the Mandate seemingly apply to employees regardless of the size of their employer. See O Centro, 546 U.S. at 433. 22 To the extent the government may argue the Mandate should be sustained because granting an exemption for Annex Medical would mean it must grant exemptions for everyone, that “slippery slope” argument has been rejected by O Centro as inconsistent with RFRA. 546 U.S. at 435-36. 23 Notably, Congress did not exempt “grandfathered” plans from all provisions of the ACA. See 42 U.S.C. § 18011(a)(3-4) (specifying those provisions of the ACA that apply to grandfathered health plans). However, Congress specifically exempted grandfathered health plans from complying with the Mandate. Defendants’ position that its interests are “of the highest order” is further undercut by Congress’s conclusion that grandfathered plans must comply with other provisions of the ACA, but not the Mandate.
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those not otherwise served can overbalance legitimate claims to the free exercise of religion.” Yoder, 406 U.S. at 216.
O Centro illustrates that Defendants have no compelling interest in denying Lind an exemption. In O Centro, a church sought a RFRA exemption to the Controlled Substances Act (“CSA”) to permit them to use an illegal hallucinogen (“DMT”) in a tea that church members received during communion. 546 U.S. at 423. The government contended that it had a compelling interest in the uniform application of the CSA such that it could make no exception to the ban on the hallucinogen to accommodate the church’s sincere religious practice. Id. Yet for 35 years prior, a regulatory exemption from the CSA had been in place for Native American religious use of peyote, a substance, like DMT, also banned under Schedule I of the Act. Id. at 433. While noting that DMT was “exceptionally dangerous,” id. at 432, the Court nonetheless held the exemption for peyote use “fatally undermines” the government’s contention that had a compelling interest in denying an exemption to the church, id. at 434-35.24
The same is true in this case. The peyote exception exempted “hundreds of thousands” of Native Americans from the CSA. Id. at 433. That exemption negated the government’s alleged interest in enforcing a ban on an “exceptionally dangerous” drug as applied to approximately 130 church members. Id. Here, the government has exempted a much greater number—over 190 million individuals—from complying with the Mandate
24 Similarly, in Lukumi Babalu Aye, the Supreme Court found that the City of Hialeah’s failure to enact feasible measures to restrict the slaughter of animals in situations not involving religious sacrifice required it to find that the government’s interest was not compelling. 508 U.S. at 546-47.
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for both secular and religious reasons, including Lind, as an employer with fewer than fifty employees.25 This case deals not with curbing dangerous drug use, but with
promoting marginally-incremental access to already widely-available women’s health
services. These exemptions likewise negate the Defendants’ alleged interest in enforcing the Mandate against Lind.26 Defendants cannot meet their burden to demonstrate a
compelling interest in forcing Lind to violate his sincerely-held religious beliefs while
voluntarily exempting nearly two-thirds of the nation’s population, including the very
plaintiff here, from the compliance with Mandate. But even if Defendants’ interest were
considered compelling, the massive exemption they have allowed prevents them from
demonstrating that granting an additional exemption to Annex Medical and its 18
employees would result in appreciable harm to those interests. See O Centro, 546 U.S. at
431 (In RFRA cases, the court must “look[] beyond broadly formulated interests
justifying the general applicability of government mandates and scrutinize[] the asserted
25 It is immaterial whether these exemptions are to the Mandate specifically or more generally to other provisions of the ACA thereby making the Mandate inapplicable. “If the government has a compelling interest in ensuring no-cost provision of preventative health coverage to women, that interest is compromised by exceptions allowing employers to avoid providing that coverage — whether broadly or narrowly crafted.” Newland, 2012 U.S. Dist. LEXIS 104835, 22 n.12. 26 As this case demonstrates, imposing the Mandate on religiously-motivated businesses like Annex Medical can actually frustrate the overall purpose of the ACA, which is to safeguard the public health. Under the pressure of the Mandate, and without the relief it seeks, Lind will terminate his group health plan, thereby leaving its employees without coverage for any health services. Of course, Defendants were made aware this might happen, see 77 Fed. Reg. at 8727, yet they chose to impose the Mandate on Lind and others with similar sincere religious objections.
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harm of granting specific exemptions to particular religious claimants.”); Olsen v. Mukasey, 541 F.3d 827, 831 (8th Cir. 2008) (same).
As shown, Defendants cannot demonstrate a compelling interest in the Mandate. It thus fails strict scrutiny and violates RFRA.
ii. The Mandate Does Not Use the Least Restrictive Means. Even assuming Defendants’ alleged interests are compelling, the Mandate would still fail strict scrutiny because Defendants cannot demonstrate that forcing Lind to violate his religious beliefs is the least restrictive means to ensure that women have access to preventive care at no cost. Strict scrutiny requires “[p]recision of regulation.” Anderson v. Celebrezze, 460 U.S. 780, 806 (1983). “If the [government] has open to it a less drastic way of satisfying its legitimate interests, it may not choose a [regulatory] scheme that broadly stifles the exercise of fundamental personal liberties.” Id. (citations and quotations omitted). Here, the government cannot demonstrate it has used the least restrictive means because it has several viable, yet far “less drastic” ways of satisfying its alleged interest that do not impose a substantial burden on Lind’s free exercise of religion. First and foremost, the government could subsidize the coverage required by the Mandate itself. This is something the government is already doing on a large scale. In 2010, “[t]he joint federal-state Medicaid program spent $1.8 billion for family planning services.” Guttmacher Institute, Facts on Publicly Funded Contraceptive Services in the United States, May 2012, (citations omitted), available at http://www.guttmacher.org/pu bs/fb_contraceptive_serv.html.
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The burden on the government to expand its current operations to cover those individuals not qualifying for contraception coverage under Medicaid would be minimal given that “[n]ine in 10 employer-based insurance plans” already cover the “full range of prescription contraceptives.” See Guttmacher Institute, Contraceptive Use in the United States, July 2012, (citations omitted), available at http://www.guttmacher.org/pubs/ fb_contr_use.html.
The government could also further its interests by directly reimbursing individuals who purchase contraceptives or allow those individuals to claim tax credits or deductions. Or, as the government has done to insurance issuers, the government could impose a mandate on the manufacturers of contraceptive drugs and devices to provide such products free of charge through community health centers, public clinics and hospitals. Defendant HHS Secretary Kathleen Sebelius has recognized that contraception services are already available through these entities for people with income-based support. Press Release, A statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, Jan. 20, 2012, http://www.hhs.gov/news/press/2012pres/01/20120 120a.html (last visited Nov. 21, 2012). The government could effectively make them available for all citizens through such a mandate.
Of course, the government may believe it is easiest to force employers to provide contraception services, but “a court should not assume a plausible, less restrictive alternative would be ineffective.” United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 824 (2000). All of the above options are far “less drastic,” yet effective means of furthering the Defendants’ alleged interests without imposing burdens on the religious
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exercise rights of Lind and others similarly situated. Thus, even assuming Defendants have demonstrated an “actual problem in need of solving,” the Mandate must fail because Defendants cannot demonstrate that substantially burdening Lind’s free exercise of religion is “actually necessary to the solution.” Brown, 131 S.Ct. at 2738.
Lind has shown that the Mandate substantially burdens his free exercise of religion. Defendants cannot demonstrate the Mandate furthers a compelling interest. But even if they could, they cannot show they have used the least restrictive means to further that interest. Lind has thus demonstrated he is likely to succeed on the merits of his RFRA challenge.
II. Lind Will be Irreparably Harmed Absent Injunctive Relief. Lind has demonstrated likely merits success as to his RFRA challenge. That showing necessitates that this Court find that he is likely to suffer irreparable harm. See, e.g., Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001) (“courts have held that a plaintiff satisfies the irreparable harm analysis by alleging a violation of RFRA”); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (“although plaintiff’s free exercise claim is statutory rather than constitutional, the denial of the plaintiff’s right to the free exercise of his religious beliefs is a harm that cannot be adequately compensated monetarily”). The courts who have recently enjoined enforcement of the Mandate have reached similar conclusions. Newland, 2012 U.S. Dist. LEXIS 104835 at 11 (“[I]t is well-established that the potential violation of Plaintiffs’ constitutional and RFRA rights threatens irreparable harm.”); Legatus, 2012 U.S. Dist. LEXIS 156144 at 40 (“The potential for harm to
28

CASE 0:12-cv-02804-DSD-SER Document 9 Filed 11/21/12 Page 37 of 39
Plaintiffs exists, and with the showing Plaintiffs have made thus far of being able to convincingly prove their case at trial, it is properly characterized as irreparable.”).
Moreover, because of his sincerely-held beliefs, Lind will be forced to terminate Annex Medical’s plan on January 31, 2013, absent relief from this Court. At that time, he will be stripped of his ability to fulfill his religiously-held duty to provide for the physical needs of his employees. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
III. The Balance of Hardships Strongly Favors Lind. When First Amendment freedoms are infringed, the Eighth Circuit “view[s] the balance clearly in favor of issuing the injunction” because irreparable harm occurs otherwise. Iowa Right to Life Committee v. Williams, 187 F.3d 963, 970 (8th Cir. 1999) (“IRTL”). The same is true here because a violation of RFRA also constitutes irreparable harm. Defendants will face no harm from being prevented from enforcing the Mandate against Annex Medical, a business the Defendants chose to exempt from the requirement to provide health insurance altogether. Absent relief, Lind will be forced to discontinue Annex Medical’s health insurance plan. So, if anything, injunctive relief will actually benefit Defendants’ interests in the ACA, and Annex Medical’s employees, because Lind will be able to continue offering his employees the protection of health insurance while this Court considers the merits of his claims.
29

CASE 0:12-cv-02804-DSD-SER Document 9 Filed 11/21/12 Page 38 of 39
Defendants have voluntarily exempted health plans covering over 190 million individuals from the Mandate. The minimal harm they may face if unable to enforce the Mandate against Annex Medical and his 18 employees, “pales in comparison to the possible infringement upon Plaintiffs’ constitutional and statutory rights.” Newland, 2012 U.S. Dist. LEXIS 104835 at 14 (finding “[t]his factor strongly favors entry of injunctive relief”).
IV. The Public Interest Favors an Injunction The public interest factor in RFRA cases should also be guided by First Amendment challenges. Viewed in this light, the public interest strongly favors entry of an injunction. In First Amendment challenges, “the determination of where the public interest lies…is dependent on the determination of the likelihood of success on the merits … because it is always in the public interest to protect constitutional rights.” PhelpsRoper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008) (citing Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998). As Lind has demonstrated likelihood of success, the public interest weighs strongly in his favor.
30

CASE 0:12-cv-02804-DSD-SER Document 9 Filed 11/21/12 Page 39 of 39
Conclusion
For the foregoing reasons, Annex Medical and Stuart Lind request this court to enter an injunction in their favor.
Respectfully submitted this 21st day of November, 2012.
s/Erick G. Kaardal Erick G. Kaardal (Minn. 229647) Mohrman & Kaardal, P.A. 33 South Sixth Street, Suite 4100 Minneapolis MN 55402 Telephone: (612) 341-1074 Facsimile: (612) 341-1076 kaardal@mklaw.com Lead Counsel for Plaintiffs Kaylan L. Phillips (Ind. 30405-84)* Zachary S. Kester (Ind. 28630-49)* Noel H. Johnson (Wisc. 1068004)* ActRight Legal Foundation 209 West Main Street Plainfield, Indiana 46168 Telephone (202) 683-9405 Facsimile (888) 815-5641 kphillips@actright.com zkester@actright.com njohnson@actright.com *Pro Hac Vice granted Nov. 14, 2012
31

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA
Civil No. 12-2804(DSD/SER)

ANNEX MEDICAL, INC., STUART LIND and TOM JANAS,

Plaintiffs,

v.

ORDER

KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, 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; and UNITED STATES DEPARTMENT OF THE TREASURY,

Defendants.

Erick G. Kaardal, Esq. and Mohrman & Kaardal, P.A., 33 South Sixth Street, Suite 4100, Minneapolis, MN 55402 and Kaylan L. Phillips, Noel H. Johnson and Zac S. Kester, ActRight Legal Foundation, 209 West Main Street, Plainfield, IN 46168, counsel for plaintiffs.

Bradley P. Humphreys, U.S. Department of Justice, 20 Massachusetts Avenue N.W., Washington, D.C. 20530, Ann M. Bildtsen, U.S. Attorney’s Office, 400 South Fourth Street, Suite 600, Minneapolis, MN 55415; Haley N. Schaffer, Esq., William Z. Pentelovitch, Esq. and Maslon, Edelman, Borman & Brand, 90 South Seventh Street, Suite 3300, Minneapolis, MN 55402; Brigitte Amiri and Teresa J. Nelson, ACLU, 125 Broad Street, 18th Floor, New York NY 10004 and 2300 Myrtle Avenue, Suite 180, St. Paul, MN 55114, counsel for defendants.

This matter is before the court upon the November 21, 2012, motion for preliminary injunction by plaintiffs Annex Medical, Inc.

(Annex) and Stuart Lind.1 Based on a review of the file, record, arguments of counsel and proceedings herein, and for the following reasons, the court denies the motion for preliminary injunction.
BACKGROUND This healthcare dispute arises from the March 23, 2010, implementation of the Patient Protection and Affordable Care Act (ACA). Affordable Care Act The ACA states that group health care plans must provide nocost “preventative care and screening” for women “as provided for in comprehensive guidelines supported by the Health Resources and Services Administration” (HRSA).2 42 U.S.C. § 300gg-13(a)(4). In response, defendants3 requested that the HRSA determine what “preventative care and screening” was required by the ACA. In conjunction with a recommendation from the Institute of Medicine,
1 Tom Janas is also a plaintiff in the underlying action, but does not join Annex and Lind in the motion for preliminary injunction.
2 The HRSA is a subagency of the Department of Health and Human Services.
3 Defendants include Kathleen Sebelius, in her official capacity as Secretary of the Department of Health and Human Services; Hilda Solis, in her official capacity as Secretary of the Department of Labor; Timothy Geithner, in his official capacity as Secretary of the Department of the Treasury; the Department of Health and Human Services; the Department of Labor; and the Department of the Treasury.
2

the HRSA proposed that the ACA cover “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”4 FDA-approved contraceptive methods include diaphragms, oral contraceptive pills, emergency contraceptives and intrauterine devices (collectively, Contraceptive Services).5 On February 15, 2012, defendants published rules adopting the HRSA recommendation (the Mandate). See 77 Fed. Reg. 8725, 8726 (Feb. 15, 2012).
Although employer-sponsored health care plans must comply with the Mandate, the ACA only requires entities with fifty or more employees to provide health care coverage. See 26 U.S.C. § 4980H. As a result, employers need not comply with the Mandate if they have less than fifty employees and choose to discontinue their group health plan. See id. § 4980H(c)(2)(A). Individual Plaintiffs
Annex is a Minnesota-based corporation that manufactures medical devices. Ver. Compl. ¶ 36. Annex employs sixteen fulltime and two part-time employees. Id. ¶ 63. The Annex mission statement provides that the company strives “to manufacture medical
4 HRSM, Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines/ (last visited Jan. 7, 2012).
5 FDA Office of Women’s Health, Birth Control Guide, http://www.fda.gov/downloads/ForConsumers/ByAudience/ForWomen/ FreePublications/UCM282014.pdf (last updated Aug. 2012).
3

products of high quality and good value, while conducting business in a way that is pleasing to God and is faithful to Biblical principles and values.” Id. ¶ 71.
Lind is a citizen of Minnesota and is the President and Chief Executive Officer of Annex. Id. ¶ 35. Lind is a “devout Catholic[] who [is] steadfastly committed to following the religious, ethical and moral teachings of the Catholic Church.” Id. ¶ 44. In his operation of Annex, Lind strives to adhere to the teachings of the Catholic faith. See id. ¶¶ 45-46. These teachings explain that “[h]uman life must by respected and protected absolutely from the moment of conception.” Id. ¶ 47 (alteration in original) (citation and internal quotation marks omitted). In other words, “Lind ... believe[s] that any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation is a grave sin.” Id. ¶ 48 (citation and internal quotation marks omitted). As a result, Lind considers the use of any Contraceptive Service to be “intrinsically evil and immoral” and believes that “compliance with the Mandate is in direct violation of the Catholic faith.” Id. ¶¶ 49-50.
Lind also believes that he has “a duty, when possible, to provide for the needs of others, including their health care.” Id. ¶ 58. As part of this commitment, Annex contracts with Blue Cross and Blue Shield of Minnesota (Blue Cross) to provide a group health
4

plan for its employees. Id. ¶¶ 59-60. Annex’s current Blue Cross plan year began on July 1, 2012. Id. ¶ 78. As such, Annex will not be subject to the Mandate until July 1, 2013, the first day of its next scheduled renewal. Id. ¶¶ 79-80.
Sometime after July 27, 2012, Lind discovered that Annex’s health care plan provided Contraceptive Services. Id. ¶ 82-83. In response, he requested that Blue Cross modify Annex’s plan to exclude Contraceptive Services. Id. ¶ 85. Blue Cross informed Lind that it would be unable to make any changes because it requires group health plans with fewer than fifty subscribers to provide Contraceptive Services. Id. ¶ 86. Lind inquired with three other Minnesota insurers, but each stated that they would not provide a plan without Contraceptive Services. Id. ¶¶ 87-88. In response, on October 22, 2012, Lind notified Annex employees that Annex would discontinue its health care plan on January 31, 2013. Id. ¶ 94.
On November 2, 2012, plaintiffs filed suit alleging violations of (1) the Religious Freedom Restoration Act (RFRA), (2) the First Amendment (3) and the Administrative Procedures Act. On November 21, 2012, Annex and Lind moved for a preliminary injunction, arguing that the Mandate violates RFRA. The court issued a briefing schedule for the parties and for prospective amici curiae. On December 27, 2012, the court granted the American Civil Liberties Union and the American Civil Liberties Union of Minnesota
5

(collectively, ACLU) amicus curiae status. The court heard oral argument on January 4, 2013, and all parties and amicus curiae appeared through counsel.
DISCUSSION A preliminary injunction is an extraordinary remedy, and the movant bears the burden of establishing its propriety. Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). The court considers four factors in determining whether a preliminary injunction should issue: (1) the likelihood of the movant’s ultimate success on the merits, (2) the threat of irreparable harm to the movant in the absence of relief, (3) the balance between that harm and the harm that the relief may cause the non-moving party, and (4) the public interest. Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc). I. Likelihood of Success on the Merits RFRA prohibits the government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability.” 42 U.S.C. § 2000bb-9(a). A substantial burden is permissible, however, if the government “demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” Id. § 2000bb-1(b); see Gonzales v. O
6

Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424
(2006) (same). In other words, the court applies strict scrutiny
to federal statutes that substantially burden the free exercise of
religion.
Exercise of religion is defined as “any exercise of religion,
whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A).6 In other words, RFRA’s
“guarantee of free exercise is not limited to beliefs which are
shared by all of the members of a religious sect.” Love v. Reed,
216 F.3d 682, 688 (8th Cir. 2000) (citation and internal quotation
marks omitted). Neither RFRA nor RLUIPA define the term
“substantial burden.” The Eighth Circuit explains, however, that
[s]ubstantially burdening one’s free exercise of religion means that the regulation must significantly inhibit or constrain conduct or expression that manifests some central tenet of a person’s individual religious beliefs; must meaningfully curtail a person’s ability to express adherence to his or her faith; or must deny a person reasonable opportunity to engage in those activities that are fundamental to a person’s religion.
United States v. Ali, 682 F.3d 705, 709-10 (8th Cir. 2012)
(alteration in original) (citations and internal quotation marks
omitted); Civil Liberties for Urban Believers v. City of Chi., 342
F.3d 752, 761 (7th Cir. 2003) (“[A] substantial burden on religious
6 This definition is from the Religious Land Use and Institutionalized Persons Act (RLUIPA), which adopted RFRA’s substantial burden inquiry.
7

exercise is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise ... effectively impracticable.”). As explained by the Sixth Circuit, “[i]n the ‘Free Exercise’ context, the Supreme Court has made clear that the ‘substantial burden’ hurdle is high.” Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x 729, 734 (6th Cir. 2007).
A. Eighth Circuit Stay Plaintiffs first argue that a likelihood of success exists because the Eighth Circuit issued a stay in O’Brien v. U.S. Department of Health & Human Services, No. 12-3357, slip op. at 1 (8th Cir. Nov. 28, 2012). Specifically, plaintiffs argue that the court should interpret the Eighth Circuit’s stay as tantamount to a preliminary injunction. See Am. Pulverizer Co. v. U.S. Dep’t of Health & Human Servs., No. 12-3459, slip op. at 1 (W.D. Mo. Dec. 20, 2012) (explaining that O’Brien “established precedent that on facts similar to those presented ... [p]laintiffs are likely to succeed on the merits”); see also Korte v. Sebelius, No. 12-3841, 2012 WL 6757353, at *4 (7th Cir. Dec. 28, 2012) (“[T]he Eighth Circuit granted a motion for an injunction pending appeal ... albeit without discussion.”).
8

In O’Brien the district court dismissed the amended complaint under Rule 12, thereby rendering moot plaintiffs’ motion for preliminary injunction. See O’Brien v. U.S. Dep’t of Health & Human Servs., No. 4:12-CV-476, 2012 WL 4481208, at *15 (E.D. Mo. Sept. 28, 2012), staying enforcement of district court opinion pending decision on merits, No. 12-3357 (8th Cir. Nov. 28, 2012). In response, plaintiffs appealed the decision on the merits and requested the issuance of a preliminary injunction pending appeal. Instead of granting the injunction, the Eighth Circuit - in a onesentence divided motions panel opinion - issued a stay pending appeal.
Citing Pulverizer in support, plaintiffs argue that the court should interpret the Eighth Circuit stay as akin to a preliminary injunction and conclude that a likelihood of success on the merits exists. Defendants respond that the Eighth Circuit may merely have been staying enforcement of the judgment of the district court pending appeal. The O’Brien panel did not provide a rationale for its decision, and the court concludes that it cannot, with a reasonable level of certainty, interpret the stay pending appeal as
9

indicating a likelihood of success on the merits.7 As a result,

the court engages in an independent analysis of plaintiffs’

likelihood of success on the merits.

B. Independent Analysis

Plaintiffs argue that their exercise of religion is

substantially burdened because they must choose between providing

health care in accordance with the Mandate or eliminate their

employer-sponsored health plan. Both options, according to the

plaintiffs, will substantially burden their practice of religion.

Plaintiffs are either forced to provide health care that includes

Contraceptive Services or forego an employer-sponsored health care

plan and neglect the needs of their employees. The defendants

respond that any burden imposed by the Mandate is too attenuated to

constitute a substantial burden under RFRA.

The court finds persuasive the reasoning from the district

court in O’Brien:

[P]laintiffs remain free to exercise their

religion, by not using contraceptives and by

discouraging employees from using

contraceptives.

The 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 covered by [the] plan, subsidize

7 The court also notes that “[d]ecisions by motions panels are summary in character, made often on a scanty record, and not entitled to the weight of a decision made after plenary submission.” In re Rodriquez, 258 F.3d 757, 759 (8th Cir. 2001) (per curium) (citation and internal quotation marks omitted).
10

someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise. Id. at *6 (emphasis omitted). In separate challenges to the Mandate, two circuit courts used substantially similar reasoning to deny injunctive relief. See Autocam Corp. v. Sebelius, No. 122673, slip op. at 2-3 (6th Cir. Dec. 28, 2012); Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, slip op. at 7 (10th Cir. Dec. 20, 2012), application for injunction denied by Circuit Justice, No. 12A644 (U.S. Dec. 26, 2012) (Sotomayor, J., in chambers). In response, plaintiffs explain that the Seventh Circuit recently enjoined enforcement of the Mandate. See Korte v. Sebelius, No. 12-3841, 2012 WL 6757353, at *4-5 (7th Cir. Dec. 28, 2012). The Seventh Circuit, however, uses a “sliding scale” inquiry that evaluates whether an adequate remedy at law exists and if there is some likelihood of success on the merits. See id. at *2. Once these threshold requirements are met, the court then balances each party’s likelihood of success against the potential harm. Id. The Seventh Circuit’s preliminary injunction inquiry is different than Dataphase, and the court in Korte concluded only that plaintiffs had “a reasonable likelihood of success on the merits.” Id. The Eighth Circuit, meanwhile, requires that the movant establish a “substantial likelihood of success on the
11

merits.” Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d
724, 731-32 (8th Cir. 2008) (citation and internal quotation marks
omitted). The Sixth and the Tenth Circuit use a similar standard.
See Autocam Corp., No. 12-2673, at 1 (noting “relevant factor ...
[as] whether the movant has shown a strong likelihood of success on
the merits”); Hobby Lobby, No. 12-6294, at 3 (“[T]he movant must
show ... a substantial likelihood of success on the merits ....”).
Because the Eighth Circuit’s preliminary injunction inquiry is
analogous to the Sixth and Tenth Circuit’s inquiry, the court finds
persuasive their treatment of similar cases.
In so stating, the court acknowledges that other districts
have reached differing opinions regarding plaintiffs’ likelihood of
success on the merits in challenges to the Mandate,8 but concludes
8 The court is aware of thirteen cases. Three courts denied injunctive relief. See Autocam Corp., No. 12-2673, at 2-3 (denying preliminary injunction; Hobby Lobby, No. 12-6294, at 7 (same); Grote Indus. v. Sebelius, No. 4:12-cv-00134, 2012 WL 6725905, at *6-7 (S.D. Ind. Dec. 27, 2012) (same). Nine courts granted injunctive relief. See Korte v. Sebelius, 2012 WL 6757353, at *1 (granting preliminary injunction); Triune Health Grp., Inc. v. U.S. Dep’t of Health & Human Servs., No. 12 C 6756, slip op. at 1 (N.D. Ill. Jan. 3, 2012) (same); Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., No. 2:12-CV-92, slip op. at 1 (E.D. Mo. Dec. 31, 2012) (granting temporary restraining order); Monaghan v. Sebelius, No. 12-15488, 2012 WL 6738476, at *3-6 (E.D. Mich. Dec. 30, 2012) (same); Conestoga Wood Specialties Corp. v. Sebelius, No. 12-6744, slip op. at 1 (E.D. Pa. Dec. 28, 2012) (same); Am. Pulverizer Co., No. 12-3459, at 1 (granting preliminary injunction); Tyndale House Publishers, Inc. v. Sebelius, No. 121635, 2012 WL 5817323, at *10-18 (D.D.C. Nov. 16, 2012) (same); Legatus v. Sebelius, No. 12-12061, 2012 WL 5359630, at *6 (E.D. Mich. Oct. 31, 2012) (same); Newland v. Sebelius, No. 1:12-cv-1123, 2012 WL 3069154, at *6-8 (D. Colo. July 27, 2012) (same), appeal
(continued...)
12

that RFRA was not designed to “protect against the slight burden on
religious exercise that arises when one’s money circuitously flows
to support the conduct of other free-exercise-wielding individuals
who hold religious beliefs that differ from one’s own.” O’Brien,
2012 WL 4481208, at *6. As a result, the court concludes that the
Mandate places only a de minimis, not substantial, burden on
plaintiffs’ practice of religion under RFRA.9 See Seven-Sky v.
Holder, 661 F.3d 1, 5 n.4 (D.C. Cir. 2011) (holding that plaintiffs
who objected to medical care on religious grounds were not
substantially burdened under RFRA when forced to choose between
obtaining health insurance or paying annual fee), abrogated on
other grounds by Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct.
2566 (2012). As such, the court need not engage in an analysis of
the Mandate under strict scrutiny. Therefore, the court concludes
8(...continued) docketed, No. 12-1380 (10th Cir. Sept. 26, 2012). As already explained, the court is uncertain of how to interpret the Eighth Circuit’s treatment of O’Brien.
9 In so stating, the court need not determine whether a secular, for-profit corporation, such as Annex, is capable of exercising religion. See Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1291-92 (W.D. Okla. 2012) (finding that “forprofit corporations ... are not ‘persons’ for purposes of the RFRA.”), aff’d, No. 12-6294 (10th Cir. Dec. 20, 2012) (denying preliminary injunction but declining to determine whether forprofit corporation can be a “person” under RFRA), application for injunction denied by Circuit Justice, No. 12A644 (U.S. Dec. 26, 2012) (Sotomayor, J., in chambers). But see Legatus, 2012 WL 5359630, at *4 (noting that corporation has standing to assert free-exercise rights as a “pass-through instrumentality” of its owners).
13

that plaintiffs cannot demonstrate a substantial likelihood of success on the merits, and this Dataphase factor weighs against entry of injunctive relief. II. Irreparable Harm
To establish irreparable harm, “a party must show that the harm is certain and great and of such imminence that there is a clear and present need for equitable relief.” Iowa Utils. Bd. v. F.C.C., 109 F.3d 418, 425 (8th Cir. 1996) (per curiam) (citations omitted). “Irreparable harm occurs when a party has no adequate remedy at law, typically because its injuries cannot be fully compensated through an award of damages.” Gen. Motors Corp. v. Harry Brown’s, LLC, 563 F.3d 312, 319 (8th Cir. 2009).
The court concludes that plaintiffs did not demonstrate a substantial likelihood of success on the merits, indicating that irreparable harm is unlikely. At this stage in the proceedings, however, the record is not developed and “a decision on the merits” has not been rendered. Hubbard Feeds, Inc. v. Animal Feed Supplement, Inc., 182 F.3d 598, 603 (8th Cir. 1999) (citations omitted). As a result, the court examines the potential harm alleged by plaintiffs.
Where, as here, a plaintiff alleges a violation of RFRA, “courts [hold] that a plaintiff satisfies the irreparable harm analysis.” Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001) (citations omitted). This is because “[t]he loss of First
14

Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Lowry ex rel. Crow v. Watson Chapel Sch. Dist., 540 F.3d 752, 762 (8th Cir. 2008) (citation and internal quotation marks omitted). Therefore, plaintiffs can demonstrate the possibility of irreparable harm, and this Dataphase factor weighs in favor of injunctive relief. III. Balance of Equities
Under the balance of equities, “a court should flexibly weigh the case’s particular circumstances to determine whether ... justice requires the court to intervene to preserve the status quo.” United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998) (citation and internal quotation marks omitted). In the present action, however, plaintiffs ask the court to enter a preliminary injunction to alter, not preserve, the status quo. Annex’s current health care plan provides Contraceptive Services, and plaintiffs request that the court order Blue Cross or another health provider to make available a plan without Contraceptive Services. Moreover, Annex has been paying for such services, albeit unintentionally, for over a year. As a result, the court is unpersuaded that plaintiffs’ alleged irreparable harm outweighs the government’s interest in providing for the health of women and children. Therefore, this Dataphase factor weighs against entry of injunctive relief.
15

IV. Public Interest “[T]he determination of where the public interest lies ... is
dependent on the determination of the likelihood of success on the merits of the First Amendment challenge because it is always in the public interest to protect constitutional rights.” Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008) (citations omitted), overruled on other grounds by Phelps-Roper v. City of Manchester, Mo., 697 F.3d 678 (8th Cir. 2012) (en banc). As already explained, plaintiffs have not established a substantial likelihood of success on the merits. Therefore, this Dataphase factor weighs against entry of injunctive relief. Accordingly, based upon a balancing of the Dataphase factors, a preliminary injunction is not warranted.
CONCLUSION Accordingly, based on the above, IT IS HEREBY ORDERED that plaintiffs’ motion for preliminary injunction [ECF No. 7] is denied. LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: January 8, 2013
s/David S. Doty David S. Doty, Judge United States District Court
16

 
 CASE 0:12-cv-02804-DSD-SER Document 39 Filed 01/11/13 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA
Civ. No. 12-cv-02804-DSD-SER

ANNEX MEDICAL, INC.; STUART LIND, and TOM JANAS
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, 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; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.

NOTICE OF APPEAL

Notice is given that the Plaintiffs in the instant case, Annex Medical, Inc., Stuart Lind, and Tom Janas, appeal to the United States Court of Appeals for the Eighth Circuit from the January 8, 2013 Order (Dckt. No. 37) and the entered January 8, 2013 Judgment (Dckt. No. 8) denying the Plaintiffs’ motion for preliminary injunction (Dckt. No. 7).

CASE 0:12-cv-02804-DSD-SER Document 39 Filed 01/11/13 Page 2 of 2
Dated: January 11, 2013.
s/Erick G. Kaardal Erick G. Kaardal (Minn. 229647) Mohrman & Kaardal, P.A. 33 South Sixth Street, Suite 4100 Minneapolis, Minnesota 55402 Telephone: (612) 341-1074 Facsimile: (612) 341-1076 kaardal@mklaw.com Lead Counsel for Plaintiffs Kaylan L. Phillips (Ind. 30405-84)* Zachary S. Kester (Ind. 28630-49)* Noel H. Johnson (Wisc. 1068004)* ActRight Legal Foundation 209 West Main Street Plainfield, Indiana 46168 Telephone (202) 683-9405 Facsimile (888) 815-5641 kphillips@actright.com zkester@actright.com njohnson@actright.com *Pro Hac Vice (granted Nov. 14, 2012)
2

 
 CASE 0:12-cv-02804-DSD-SER Document 42 Filed 01/11/13 Page 1 of 9

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

ANNEX MEDICAL, INC.; STUART LIND, and TOM JANAS

Plaintiffs, Civ. No. 12-cv-02804-DSD-SER
v.

KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, 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; and UNITED STATES DEPARTMENT OF THE TREASURY,

MEMORANDUM IN SUPPORT OF EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL

Defendants.

Background

On November 2, 2012, Annex Medical, Inc. and Stuart Lind (together, “Lind”),

along with plaintiff Tom Janas, filed a Verified Complaint (“VC”), alleging the Mandate

violated the Religious Freedom Restoration Act (“RFRA), the First Amendment to the

United States Constitution, and the Administrative Procedures Act. (Doc. 1.) On

November 21, 2012, Lind moved for a preliminary injunction on his claim that the

Mandate violates RFRA. (Doc. 7.) On January 8, 2013, this Court denied Lind’s motion

for a preliminary injunction. (Doc. 37, hereafter “the Order”.) On January 11, 2013, Lind

CASE 0:12-cv-02804-DSD-SER Document 42 Filed 01/11/13 Page 2 of 9
filed a Notice of Appeal of the January 8th Order. Lind now asks this Court to enjoin the Mandate pending his appeal of the Order.
Argument
Rule 8(a)(1) of the Federal Rules of Appellate Procedure provides that “[a] party must ordinarily move first in the district court for … (C) an order … granting an injunction while an appeal is pending.”
The injunction pending appeal standard is identical to the preliminary injunction standard. Shrink Missouri Gov’t PAC v. Adams, 151 F.3d 763, 764 (8th Cir. 1998). The “issuance of a preliminary injunction depends upon a ‘flexible’ consideration of (1) the threat of irreparable harm to the moving party; (2) balancing this harm with any injury an injunction would inflict on other interested parties; (3) the probability that the moving party would succeed on the merits; and (4) the effect on the public interest.” Minnesota Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 870 (8th Cir. 2012) (“MCCL”) (quoting Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1991) (en banc)). “When a Plaintiff has shown a likely violation of his or her First Amendment rights, the other requirements for obtaining a preliminary injunction are generally deemed to have been satisfied.” MCCL, 692 F.3d at 870 (internal citations and quotations omitted). Lind satisfies all four of the injunctive relief factors.
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CASE 0:12-cv-02804-DSD-SER Document 42 Filed 01/11/13 Page 3 of 9
I. Lind is Likely to Succeed on Appeal on His RFRA Claim. A. Defendants Have Acknowledged that the Eighth Circuit’s Order in O’Brien v. United States HHS is Tantamount to a Preliminary Injunction. This Court found that it was “uncertain of how to interpret the Eighth Circuit’s
treatment of O’Brien.” (Doc. 37 at 13 n.8.) Because the “O’Brien panel did not provide a rationale for its decision,” this Court found that it could not “interpret the stay pending appeal as indicating a likelihood of success on the merits.” (Id. at 9-10.) Therefore, this Court found it necessary to engage in an independent analysis of Lind’s claims, ultimately denying his request for injunctive relief based largely on the reasoning of the lower court in O’Brien. (Id. at 10-11.)
Before this Court, Defendants argued that the Eighth Circuit’s order in O’Brien v. United States HHS, 2012 U.S. App. LEXIS 26633 (8th Cir. Mo. Nov. 28, 2012) did not mean that the O’Brien appellants had been issued a preliminary injunction pending appeal. Defendants contended that the Eighth Circuit “may merely have been staying enforcement of the judgment of the district court pending appeal,” (Doc. 37 at 9), an argument this Court accepted.
Yet, on December 19, 2012, at oral argument (held telephonically) in a substantially similar challenge to the Mandate in the Western District of Missouri— American Pulverizer v. HHS, No. 12-cv-3459 (W.D. Mo., filed Oct. 12, 2012)—Michelle Bennett, counsel for Defendants in that case, acknowledged that the Eighth Circuit’s Order in O’Brien means that the O’Brien Appellants have been granted a preliminary injunction pending appeal.
3

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THE COURT: Now, I see, you know, plaintiff in that case—let’s talk about the O’Brien case for a little bit—you were seeking a preliminary injunction and the Court dismissed your case. [1]
MR. MANION: Right.
THE COURT: Then you filed a motion for preliminary injunction—let me get it right here—but with the Court of Appeals. It seems like you were requesting them to enter a preliminary injunction.
MR. MANION: That’s correct.
THE COURT: And then they issue an order for a stay pending appeal. Now, did they—do you all have agreement on that? Did they essentially issue the preliminary injunction or is this kind of an alternative status here?
MR. MANION: Well, the plaintiffs think it’s a preliminary injunction, Judge. When you look at the Eighth Circuit docket, it links to what it was they were granting. What it was they were granting was appellant’s motion for a preliminary injunction pending appeal. So even though it’s styled on the docket as a motion for a stay, what they actually say they are granting is the only thing that was before them which was the motion for preliminary injunction pending appeal.
THE COURT: Well, I'm looking at the order where it just says appellant’s motion for stay. So you take it that they just misstated?
MR. MANION: Your Honor, there was no motion for a stay.
THE COURT: Okay. And the motion is granted. What do defendants say about that?
MS. BENNETT: Your Honor, that’s our understanding as well. The issue that was briefed was whether to preliminary enjoin the regulations pending the appeal. It might just be that the Eighth Circuit calls those stays. I’m not really sure. But it is our understanding that the effect of that ruling is –
THE COURT: Preliminary injunction.
MS. BENNETT: Yes, pending the appeal.
1 Counsel for the plaintiffs in American Pulverizer, the American Center for Law and Justice, is also counsel for plaintiffs in O’Brien.
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CASE 0:12-cv-02804-DSD-SER Document 42 Filed 01/11/13 Page 5 of 9
Transcript of Teleconference at 2-4, American Pulverizer v. HHS, No. 12-cv-3459 (W.D. Mo., Dec. 19, 2012) (Attached as Exhibit A to Declaration of Erick G. Kaardal).
Counsel for Defendants’ concession makes sense when one considers the relief sought by the O’Brien appellants and the text of the Eighth Circuit’s order. After their claims were dismissed by the district court, the O’Brien plaintiffs appealed the decision on the merits and filed a “MOTION FOR A PRELIMINARY INJUNCTION PENDING APPEAL” in the Eighth Circuit, in which they argued that they had satisfied the preliminary injunction factors on their RFRA claim alone. O’Brien v. United States HHS, No. 12-3357, Doc. 14 (8th Cir., docketed Oct. 4, 2012). While this Court correctly notes that the Eighth Circuit described the appellants’ motion as a “stay pending appeal” in its Order, the court was clear that it was granting the “Appellants’ motion,” which, as explained, requested injunctive relief pending appeal on the grounds that appellants satisfied the preliminary injunction factors on their RFRA claim. Had the Eighth Circuit believed that the O’Brien appellants had failed to meet their burden for a preliminary injunction, there would have been no basis to grant the appellants’ motion.
By Defendants’ admission, the O’Brien Order means the appellants in that case were granted an injunction pending appeal.2 It also means that the O’Brien district court’s RFRA analysis has been called into question. As the parties are similarly situated, O’Brien counsels strongly in favor of an injunction pending appeal in this matter.
2 As noted, the Seventh Circuit Court of Appeals also interprets the Eighth Circuit’s Order in O’Brien to mean the Mandate is enjoined pending appeal. Korte v. Sebelius, 2012 U.S. App. LEXIS 26734, *10 (7th Cir. Ill. Dec. 28, 2012).
5

CASE 0:12-cv-02804-DSD-SER Document 42 Filed 01/11/13 Page 6 of 9
B. Lind Has Satisfied the Requirements for an Injunction Pending Appeal. Lind is likely to succeed on his RFRA claim because the Mandate substantially burdens his exercise of religion, but fails strict scrutiny. 42 U.S.C. §§ 2000bb-9(a); 2000bb-1(b). The Mandate affirmatively compels Lind to pay for insurance coverage that violates his sincerely-held religious beliefs. (VC ¶¶ 49-50, 55) If Lind does not offer this coverage, he will face substantial monetary penalties and potentially, lawsuits. 26 U.S.C. § 4980D; 29 U.S.C. § 1132(a). Lind’s “alternative” is to drop insurance altogether, which will cause him to violate his religiously-held duty to provide for his employees. (VC ¶ 58.) These are direct and substantial burdens on Lind’s exercise of religion. See Thomas v. Review Board, 450 U.S. 707, 718 (1981) (substantial burden exists where law “put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs”); United States v. Ali, 682 F.3d 705, 709 (8th Cir. 2012) (substantial burden exists where a regulation “significantly inhibit[s] or constrain[s] conduct or expression that manifests some central tenet of a person’s individual religious beliefs”). Lind’s religious objections do not depend on someone else’s decision to use the contraceptive products and services the Mandate requires Lind’s insurance plan to cover. As the Seventh Circuit recognized, “[t]he religious‐liberty violation at issue here inheres in the coerced coverage of contraception, abortifacients, sterilization, and related services, not—or perhaps more precisely, not only—in the later purchase or use of contraception or related services.” Korte, 2012 U.S. App. LEXIS 26734 at *10. Therefore, it is irrelevant to the substantial burden analysis that Lind remains free to refrain from using contraception himself or discourage his employees to do likewise. Of
6

CASE 0:12-cv-02804-DSD-SER Document 42 Filed 01/11/13 Page 7 of 9
course, the Mandate does not force anyone to use contraception, but it clearly forces Lind to directly subsidize it in violation if his religious beliefs.
The Mandate imposes these “substantial burdens,” but fails strict scrutiny in violation of RFRA. Defendants cannot have a compelling interest in forcing Lind to violate his religious beliefs when they have voluntarily exempted millions of people from providing women’s preventive care. See, e.g., Newland v. Sebelius, 2012 U.S. Dist. LEXIS 104835, *2 (D. Colo. July 27, 2012) (citing 75 Fed. Reg. 34538, 34550 (June 17, 2010)) (estimating 191 million people qualify for “grandfathered” health plans that are exempt from the Mandate). Defendants’ have also exempted Lind, as an employer with fewer than fifty employees, 26 U.S.C. § 4980H(a), from complying with the Mandate, making it all the more unlikely the government could show a compelling interest in forcing Lind’s compliance with the Mandate. Defendants’ asserted interests are generic and abstract, and therefore insufficient to carry its burden under strict scrutiny. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006).
Defendants have also failed to show the Mandate is the least restrictive means to further its interests. Notably, Defendants do not explain why the government cannot provide contraception and abortifactients directly to the small number of employees whose employers exclude this coverage for religious reasons. Defendants currently subsidize free contraception through Title X funding and Medicaid. There is no reason Defendants cannot subsidize the same coverage for women working for exempted employers.
7

CASE 0:12-cv-02804-DSD-SER Document 42 Filed 01/11/13 Page 8 of 9
The remaining injunctive relief factors weigh in favor of Lind. As this Court noted, “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” (Doc. 37 at 14-15 (quoting Lowry ex rel. Crow v. Watson Chapel Sch. Dist., 540 F.3d 752, 762 (8th Cir. 2008)).) Thus, when First Amendment freedoms are infringed, the Eighth Circuit “view[s] the balance clearly in favor of issuing the injunction” because irreparable harm occurs otherwise. Iowa Right to Life Committee v. Williams, 187 F.3d 963, 970 (8th Cir. 1999). Defendants will face no harm from being prevented from enforcing the Mandate against Annex Medical, a business the Defendants chose to exempt from the requirement to provide health insurance altogether. On the other hand, absent relief, Lind will be forced to discontinue Annex Medical’s health insurance plan, forcing him to neglect his duty to provide for his employees. Lastly, because Lind has demonstrated likely merits success, the public interest favors an injunction. Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008).
Conclusion
For the foregoing reasons, Annex Medical and Stuart Lind request this court to enter an injunction pending their appeal of this Court’s January 8th Order.
8

CASE 0:12-cv-02804-DSD-SER Document 42 Filed 01/11/13 Page 9 of 9
Respectfully submitted this 11th day of January, 2013.
s/Erick G. Kaardal Erick G. Kaardal (Minn. 229647) Mohrman Kaardal, P.A. 33 South Sixth Street, Suite 4100 Minneapolis MN 55402 Telephone: (612) 341-1074 Facsimile: (612) 341-1076 kaardal@mklaw.com Lead Counsel for Plaintiffs Kaylan L. Phillips (Ind. 30405-84)* Zachary S. Kester (Ind. 28630-49)* Noel H. Johnson (Wisc. 1068004)* ActRight Legal Foundation 209 West Main Street Plainfield, Indiana 46168 Telephone (202) 683-9405 Facsimile (888) 815-5641 kphillips@actright.com zkester@actright.com njohnson@actright.com *Pro Hac Vice granted Nov. 14, 2012
9

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA
Civil No. 12-2804(DSD/SER)
ANNEX MEDICAL, INC., STUART LIND and TOM JANAS,
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, 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; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.

ORDER

This matter is before the court upon the motion for preliminary injunction pending appeal by plaintiffs Annex Medical, Inc. (Annex) and Stuart Lind. Based on a review of the file, record and proceedings herein, and for the following reasons, the court denies the motion.
On November 21, 2012, plaintiffs filed a motion for preliminary injunction, arguing that certain provisions of the Patient Protection and Affordable Care Act violate their rights under the Religious Freedom Restoration Act. On January 8, 2013, the court denied the plaintiffs’ motion. See ECF No. 37. In response, on January 11, 2013, plaintiffs appealed the January 8,

2013, order to the Eighth Circuit. See ECF No. 39. On that same
day, plaintiffs also filed a motion for preliminary injunction
pending appeal with this court, pursuant to Federal Rule of
Appellate Procedure 8(a)(1)(C). In response, the court orally
issued an expedited briefing schedule and determined that oral
argument was unnecessary. See Fed. R. Civ. P. 78(b).
“A party must ordinarily move first in the district court for
... an order ... granting an injunction while an appeal is
pending.” Fed. R. App. P. 8(a)(1)(C). For the issuance of an
injunction pending appeal, plaintiff “must meet the requirements
outlined in Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d
109 (8th Cir. 1981).” Shrink Mo. Gov’t PAC v. Adams, 151 F.3d 763,
764 (8th Cir. 1998). In the present action, plaintiffs raise no
new arguments under Dataphase.1 Therefore, the court incorporates
its analysis from the January 8, 2013, order and determines that a
1 Plaintiffs do argue, however, that the court’s January 8, 2013, order improperly interpreted the Eighth Circuit’s stay pending appeal in O’Brien v. U.S. Department of Health & Human Services, No. 12-3357 (8th Cir. Nov. 28, 2012). Specifically, plaintiffs argue that a likelihood of success exists because the practical effect of the Eighth Circuit’s stay in O’Brien is tantamount to a preliminary injunction. As previously explained, however, the one-sentence motions panel decision can also be interpreted as staying the enforcement of the judgment of the district court pending appeal. This notion is confirmed by the fact that the Eighth Circuit issued a stay pending appeal, despite the plaintiffs styling the motion as one for preliminary injunction and briefing the motion under Dataphase. As a result, the court is still of the belief that O’Brien does not necessitate a finding that plaintiffs have established a likelihood of success on the merits in the underlying action.
2

balancing of the Dataphase factors counsels against injunctive relief. Accordingly, IT IS HEREBY ORDERED that plaintiffs’ motion for preliminary injunction pending appeal [ECF No. 45] is denied. Dated: January 17, 2013
s/David S. Doty David S. Doty, Judge United States District Court
3

 
 CASE 0:12-cv-02804-DSD-SER Document 53 Filed 01/25/13 Page 1 of 1

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

_________________________________

)

ANNEX MEDICAL, INC., et al.

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al.

)

)

Defendants.

)

_________________________________ )

Case No. 0:12-cv-02804-DSD-SER ORDER

Given the parties’ Joint Motion to Stay District Court Proceedings Pending Appeal, ECF No. 51, it is ORDERED:
The parties’ motion is GRANTED. Defendants shall file a responsive pleading within thirty days after the Eighth Circuit’s resolution of plaintiffs’ appeal.

Dated: January 25, 2013

s/David S. Doty David S. Doty, Judge United States District Court

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA Civil No. 0:12-02804(DSD/SER)

ANNEX MEDICAL, INC., et al.,

Plaintiffs,

v.

ORDER

SYLVIA M. BURWELL, in her Official capacity as Secretary of Health & Human Services, et al.

Defendants.

INJUNCTION AND JUDGMENT In light of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), and upon defendants’ consent, it is hereby ORDERED that defendants, their employees, agents, and successors in office are permanently enjoined (a) from enforcing
(1) the “June 30, 2014 Contraceptive Coverage Requirement,” defined here to include those provisions of federal law in existence on June 30, 2014, when the Supreme Court decided Hobby Lobby, that require plaintiffs Annex Medical, Inc. and Armor, Inc. to provide their employees with health coverage for contraceptive methods, sterilization procedures, and related patient education and counseling to which plaintiffs object on religious

grounds, e.g., 26 C.F.R. § 54.9815-2713(a)(1)(iv); 29 C.F.R. § 2590.7152713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv); and (2) any penalties, fines, or assessments for noncompliance with the June 30, 2014 Contraceptive Coverage Requirement, including those found in 26 U.S.C. § 4980D and 29 U.S.C. §§ 1132 and 1185d; and (b) from taking any other actions based on noncompliance with the June 30, 2014 Contraceptive Coverage Requirement against plaintiffs Annex Medical, Inc. and Armor, Inc., their employee health plan(s), the group health coverage provided in connection with such plan(s), and/or these plaintiffs’ health insurance issuers and/or third-party administrators with respect to these plaintiffs’ health plan(s); and it is further ORDERED that judgment is entered in favor of plaintiffs and against defendants on plaintiffs’ claim under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq.; and it is further ORDERED that all other claims against defendants are DISMISSED; and it is further ORDERED that any petition by plaintiffs for attorneys’ fees or costs shall be submitted on or before 60 days (or the next business day if that day falls on a weekend or court holiday) from the date this judgment is issued; and it is further ORDERED that this Injunction and Judgment does not apply with respect to any changes in statute or regulation that are, or were, enacted or promulgated after the Supreme Court issued its decision in Hobby Lobby, including the Final Rules, Coverage
2

of Certain Preventive Services Under the Affordable Care Act, 80 Fed. Reg. 41,318 (July 14, 2015) (applicable beginning on the first day of the first plan year that begins on or after September 14, 2015), which provide accommodations to certain closely held forprofit entities that object to providing contraceptive coverage based on their owners’ religious beliefs, and nothing herein prevents plaintiffs from filing a new civil action to challenge the accommodations or any other post-Hobby Lobby changes in statute or regulation. Dated: August 19, 2015
s/David S. Doty David S. Doty, Judge United States District Court
3

 
 CASE 0:12-cv-02804-DSD-SER Document 59 Filed 09/05/14 Page 1 of 12
United States Court of Appeals
For the Eighth Circuit ___________________________
No. 13-1118 ___________________________
Annex Medical, Inc.; Stuart Lind; Tom Janas
lllllllllllllllllllll Plaintiffs - Appellants
v.
Sylvia Mathews Burwell, in her official capacity as Secretary of the United States Department of Health and Human Services; Thomas E. Perez, in his official
capacity as Secretary of the United States Department of Labor; Jacob J. Lew, in his official capacity as Secretary of the United States Department of Treasury;
United States Department of Health and Human Services; United States Department of Labor; United States Department of Treasury
lllllllllllllllllllll Defendants - Appellees1
------------------------------
Association of American Physicians & Surgeons; American Association of Pro-Life Obstetricians & Gynecologists; Christian Medical Association; Catholic
Medical Association; National Catholic Bioethics Center; Physicians for Life; National Association of Pro-Life Nurses; Liberty, Life, and Law Foundation; Breast Cancer Prevention Institute; Bioethics Defense Fund; Life Legal Defense Foundation; Association of Gospel Rescue Missions; Christian Legal Society; The C12 Group; Patrick Henry College; National Association of Evangelicals; Ethics
and Religious Liberty Commission of the Southern Baptist Convention; Institutional Religious Freedom Alliance; Prison Fellowship Ministries; The Right
1Pursuant to Federal Rule of Appellate Procedure 43(c)(2), the following automatic substitutions of public officers occur: Secretary Burwell for Kathleen Sebelius, Secretary Perez for Seth D. Harris (who previously was automatically substituted for Hilda Solis), and Secretary Lew for Timothy Geithner.
Appellate Case: 13-1118 Page: 1 Date Filed: 09/05/2014 Entry ID: 4193259

CASE 0:12-cv-02804-DSD-SER Document 59 Filed 09/05/14 Page 2 of 12
Reverend W. Thomas Frerking, OSB; Missouri Roundtable For Life; Minnesota Catholic Conference; Bradley P. Jacob; Charles E. Rice; Common Good
Foundation; Common Good Alliance; Catholic Online, LLC; Sharpe Holdings, Inc.; Charles N. Sharpe; Eagle Forum Education and Legal Defense Fund
lllllllllllllllllllllAmici on Behalf of Appellants
Physicians for Reproductive Health; National Women’s Law Center; American College of Obstetricians and Gynecologists; American Society for Emergency Contraception; American Federation of State, County and Municipal Employees; Association of Reproductive Health Professionals; Feminist Majority Foundation; American Society for Reproductive Medicine; Ibis Reproductive Health; Society for Adolescent Health and Medicine; MergerWatch; American Medical Women’s
Association; NARAL Pro-Choice America; National Association of Nurse Practitioners in Women’s Health; NARAL Pro-Choice Minnesota; Society of
Family Planning; NARAL Pro-Choice Missouri; James Trussell; NARAL Pro-Choice South Dakota; Susan F. Wood; National Organization for Women
Foundation; Don Downing; National Partnership for Women and Families; Kathleen Besinque; Planned Parenthood of the Heartland; Planned Parenthood of Kansas & Mid-Missouri; Planned Parenthood Minnesota, North Dakota, South
Dakota; Planned Parenthood of the St. Louis Region and Southwest Missouri; Population Connection; Raising Women's Voices for the Health Care We Need; Service Employees’ International Union; Lambda Legal Defense and Education
Fund; National Health Law Program; Mexican American Legal Defense and Educational Fund; Asian Pacific American Legal Center; Black Women’s Health
Imperative; Forward Together; National Hispanic Medical Association; Ipas; Sexuality Information and Education Council of the U.S.; Campaign to End AIDS;
HIV Law Project; National Women and AIDS Collective; Housing Works; Americans United For Separation of Church and State; Union for Reform Judaism;
Central Conference of American Rabbis; Women of Reform Judaism; Hindu American Foundation; American Civil Liberties Union; American Civil Liberties Union of Minnesota; Anti-Defamation League; Catholics for Choice; Hadassah,
the Women’s Zionist Organization of America, Inc.; Interfaith Alliance Foundation; National Council of Jewish Women; Religious Coalition for Reproductive Choice; Religious Institute; Unitarian Universalist Association;
Unitarian Universalist Women’s Federation
lllllllllllllllllllllAmici on Behalf of Appellees
-2-
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CASE 0:12-cv-02804-DSD-SER Document 59 Filed 09/05/14 Page 3 of 12
____________
Appeal from United States District Court for the District of Minnesota - Minneapolis
____________
Submitted: October 24, 2013 Filed: September 5, 2014 ____________
Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges. ____________
RILEY, Chief Judge.
In this Religious Freedom Restoration Act (RFRA) case challenging the U.S. Department of Health and Human Services (HHS) contraceptive mandate under 42 U.S.C. § 2000bb-1(a),2 Annex Medical, Inc. (Annex), Stuart Lind, and Tom Janas appeal the district court’s refusal to enjoin preliminarily the government from enforcing the mandate.
2Pursuant to the Patient Protection and Affordable Care Act (ACA), 42 U.S.C. § 300gg-13(a)(4), HHS promulgated regulations requiring “group health plan[s]” and “health insurance issuer[s] offering group or individual health insurance coverage” to cover, without “any cost-sharing requirements,” “[w]ith respect to women, . . . evidence-informed preventive care and screenings provided for in binding comprehensive health plan coverage guidelines supported by the Health Resources and Services Administration.” 45 C.F.R. § 147.130(a)(1)(iv) (2013). At the recommendation of the Institute of Medicine, HHS adopted guidelines providing that nonexempt employers generally must provide “coverage, without cost sharing, for all Food and Drug Administration (FDA) approved contraceptive methods, sterilization procedures, and patient education and counseling.” 77 Fed. Reg. 8725, 8726 (Feb. 15, 2012) (internal marks and quotations omitted).
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CASE 0:12-cv-02804-DSD-SER Document 59 Filed 09/05/14 Page 4 of 12
I. BACKGROUND Annex is a for-profit Minnesota corporation and at the time of filing had sixteen
full-time employees and two part-time employees. When Annex filed this lawsuit, one of the ways Annex compensated its employees was by paying for a Blue Cross and Blue Shield of Minnesota (Blue Cross) group health insurance plan. This health plan covered contraceptives and had included such coverage for years.
Lind is the controlling shareholder of Annex. On religious grounds, Lind opposes both abortion and the use of contraceptives. Lind asserts he did not know the plans Annex purchased for its employees historically offered coverage for contraceptives. After Lind learned the Blue Cross plan contained this coverage, Annex continued to pay for its employees’ participation in the plan until Annex cancelled the policy as of January 31, 2013. At some point before canceling the policy, Lind asked Blue Cross “to exclude coverage for contraception, sterilization, abortifacient drugs and related education and counseling.” Although the Blue Cross plan was “not currently subject to” the regulation, Blue Cross itself refused to eliminate such coverage. (Emphasis added). Lind contacted three other Minnesota insurers, none of whom would sell Annex a plan without contraceptive coverage. According to Lind, no insurer would offer Annex such coverage even after this court issued a temporary injunction pending appeal.
At issue here is the district court’s denial of Annex and Lind’s motion for a preliminary injunction respecting the contraceptive mandate’s enforcement. Before the Supreme Court issued its opinion in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___, 134 S. Ct. 2751 (2014), the district court considered the four Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc), factors, and concluded the factors weighed in favor of the government. The district court denied the motion.
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CASE 0:12-cv-02804-DSD-SER Document 59 Filed 09/05/14 Page 5 of 12
II. DISCUSSION
A. Janas Although Janas appears on the notice of appeal, he did not join the preliminary injunction motion which forms the basis for this appeal. Its denial did not leave him personally “aggrieved.” Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 333 (1980). Because Janas has “no ‘direct stake’ in the outcome of th[is] appeal,” he lacks standing to appear before us. Hollingsworth v. Perry, 570 U.S. ___, ___, 133 S. Ct. 2652, 2662 (2013) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997)); see also 28 U.S.C. § 1292(a)(1). Without opining whether Janas’s “plans to purchase another business in 2013” gave him standing to participate in the underlying case, cf. Clapper v. Amnesty Int’l USA, 568 U.S. ___, ___, 133 S. Ct. 1138, 1147 (2013), we dismiss his appeal.
B. Annex and Lind With respect to Annex and Lind, we find a different standing issue. According to the pleadings, Annex has fewer than fifty full-time employees, which means Annex has no government-imposed obligation to offer health insurance of any kind—let alone the contraceptive coverage to which Lind objects. See 26 U.S.C. § 4980H(a), (c)(2). And if Annex—a “small employer”—chooses to offer insurance from a health insurer anyway, Annex cannot be penalized if the insurance is inconsistent with the contraceptive mandate. Id. § 4980D(d). Because the mandate does not apply to Annex, the only alleged injury is that independent third parties—private health insurance companies not involved in this case—are unable to sell Annex a health insurance plan that excludes healthcare inconsistent with Lind’s religious beliefs. See 45 C.F.R. § 147.130(a)(1)(iv) (applying the mandate not only to group health plans, but also to “health insurance issuer[s]”).
The standing problem is the pleadings and record contain no indication any Minnesota health insurer is willing, but for the mandate, to sell a plan allowing a small employer such as Annex to prohibit coverage for a handful of healthcare products and
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CASE 0:12-cv-02804-DSD-SER Document 59 Filed 09/05/14 Page 6 of 12
services. What few indications appear on the record are to the contrary. The complaint alleges Annex’s current insurer (whose grandfathered plan, unaffected by the mandate, covered contraceptives) would “not permit Annex[] to modify its group health plan to omit such coverage because [the insurer] requires all group health plans issued to employers with fewer than 50 employees to include such coverage.” Pending this appeal, our court preliminarily enjoined the federal defendants “from enforcing the mandate . . . against Lind, Annex[], and any health insurance issuer when offering group health insurance coverage to Annex.” Annex Med., Inc. v. Sebelius, No. 13-1118, 2013 WL 1276025, at *3 (8th Cir. Feb. 1, 2013) (unpublished order) (emphasis added). Yet Lind informs us “the injunction has not enabled him to purchase” a plan conforming with his religious beliefs. According to Annex and Lind, “Group plan providers are unwilling to exclude some or any of the mandated coverage from their plans or do not currently offer a plan that excludes these items and are unwilling to submit such a plan to the Minnesota Department of Commerce for approval.” (Emphasis added).
RFRA does not allow the federal government substantially to burden Lind’s religious beliefs, as exercised through his closely-held corporation. See Hobby Lobby, 573 U.S. at ___, ___, 134 S. Ct. at 2779, 2785. But in protecting Lind’s exercise of religion, RFRA cannot injure the rights of other private parties. See City of Boerne v. Flores, 521 U.S. 507, 535-36 (1997); see also id. at 536-37 (Stevens, J., concurring); id. at 537-44 (Scalia, J., concurring). Whether for political, moral, religious, administrative, or purely profit-driven reasons, health insurance issuers are free under RFRA to decline Annex’s business. See 41 U.S.C. § 2000bb-1(a) (applying RFRA only to the “Government”); City of Boerne, 521 U.S. at 535-36 (limiting RFRA to the federal government).
Ultimately, it is unclear whether Annex’s alleged injury is caused by the government defendants and redressable by the federal courts. Article III requires Annex to prove “‘an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.’” United States v. Juvenile Male, 564 U.S. ___, ___,
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131 S. Ct. 2860, 2863 (2011) (per curiam) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)). Based on the pleadings and sparse record before us, we can only speculate whether Annex’s difficulties obtaining contraceptive-free insurance are (1) caused by the government defendants as opposed to the independent decisions of third-party insurers, and (2) redressable by the remedy available to Annex: a permanent version of the preliminary injunction Annex already received and which failed to redress Annex’s alleged injury. Yet “[t]ime and again the Supreme Court has reminded lower courts that speculation and conjecture are not injuries cognizable under Article III.” Wallace v. ConAgra Foods, Inc., 747 F.3d 1025, 1031 (8th Cir. 2014).
Rather than resort to such speculation, we believe it best to vacate the district court’s denial and remand the case for additional analysis. See, e.g., Peske v. Tangedahl, 619 F.2d 729, 731 (8th Cir. 1980) (per curiam) (expressing our doubts as to jurisdiction but vacating and remanding in light of the district court’s failure to consider the issue); see also, e.g., Spencer v. Stork, 513 F. App’x 557, 558 (6th Cir. 2013) (per curiam); Salmon Spawning & Recovery Alliance v. U.S. Customs & Border Prot., 550 F.3d 1121, 1134 (Fed. Cir. 2008); United Food & Commercial Workers Union, Local 919 v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298, 307 (2d Cir. 1994). This will allow the district court to use its superior fact-finding abilities to determine, in the first instance, whether subject matter jurisdiction exists. See Fed. R. Civ. P. 12(b)(1); Jessie v. Potter, 516 F.3d 709, 712 (8th Cir. 2008) (“When a Rule 12(b)(1) ruling resolves disputed facts, the court can take evidence at a hearing.”); Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th Cir. 2002) (affirming a district court’s determination under Rule 12(b)(1), based on “factual determinations about the availability of th[e plaintiff’s requested] relief,” that the plaintiff lacked standing).
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III. CONCLUSION
We dismiss Janas’s appeal, and as to Annex and Lind, we vacate the district court’s order and remand for further proceedings, beginning with the parties’ Article III standing.3
COLLOTON, Circuit Judge, concurring in the judgment.
The district court’s order denying a preliminary injunction should be vacated, and the case remanded for further proceedings, but not for the reasons given by the panel majority. There is an Article III case or controversy between Annex Medical, Inc. and the United States over the government’s mandate that any group health insurance plan issued to Annex Medical must include coverage to which Annex Medical and its owner, Stuart Lind, object on religious grounds. The Affordable Care Act authorized the Department of Health and Human Services to promulgate regulations governing group health plans, and HHS issued regulations that include the disputed mandate. See 26 U.S.C. § 4980D; 42 U.S.C. § 300gg-13(a)(4); 45 C.F.R. § 147.130.
The district court denied Annex Medical’s motion for a preliminary injunction against the HHS mandate, concluding that “the Mandate places only a de minimis, not substantial, burden on plaintiffs’ practice of religion” under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq. The district court reasoned that the government’s requiring indirect financial support of a practice that violates the business owner’s religious principles does not constitute a “substantial burden” on the exercise of religion. In Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014),
3On July 1, 2014, Annex and Lind filed a citation letter with this court, pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure, identifying and quoting the Supreme Court’s decision in Hobby Lobby. Because we remand this case on standing grounds, we need not, and do not, express an opinion on the impact of Hobby Lobby on the current case.
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however, the Supreme Court concluded that where business owners and their companies “sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line,” it is not for the courts “to say that their religious beliefs are mistaken or insubstantial.” Id. at 2779. The Court also observed that the business owners and for-profit companies in that case—like Lind and Annex Medical—had “religious reasons for providing health-insurance coverage for their employees,” and that foregoing insurance coverage likely would place the companies at “a competitive disadvantage in retaining and attracting skilled workers.” Id. at 2776-77. Accordingly, I would vacate the district court’s order and remand the case for further consideration in light of Hobby Lobby.
The majority, on its own initiative, decides instead that there is an Article III “standing problem” that must be addressed by the district court, because the record includes “no indication any Minnesota health insurer is willing, but for the mandate, to sell a plan allowing a small employer such as Annex to prohibit coverage for a handful of healthcare products and services.” The “problem” is illusory; the record at this stage of the litigation establishes that Annex Medical has standing to challenge the HHS mandate. The government agreed in the district court that Annex Medical has standing. The district court accepted the position of the parties and exercised jurisdiction over the case. Annex Medical, Inc. v. Sebelius, No. 12-2084, 2013 WL 101927 (D. Minn. Jan. 8, 2013). A three-judge panel of this court exercised jurisdiction over this appeal and entered a preliminary injunction pending appeal. Annex Medical, Inc. v. Sebelius, No. 13-1118, 2013 WL 1276025 (8th Cir. Feb. 1, 2013). There is no good cause at this point to second-guess the existence of a case or controversy.
Annex Medical is injured because the HHS mandate excludes it from participating in the market for group health insurance. The company wants to propose a transaction and develop a business relationship with an insurer, but the issuers are forbidden by federal law to consider Annex Medical’s proposal. A declaration that the mandate is contrary to RFRA and an injunction against its enforcement would
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redress that injury. See Clinton v. City of New York, 524 U.S. 417, 432-33 & n.22 (1998); Lepelletier v. FDIC, 164 F.3d 37, 42 (D.C. Cir. 1999).
Annex Medical also is injured because it is unable to purchase a health insurance plan for its employees without the coverage to which it objects on religious grounds. A plaintiff’s burden to establish standing depends on the stage of litigation. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). This case is at the pleading stage; the government has not even filed an answer. “At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim.” Id. (internal quotation omitted).
Annex Medical alleged in its complaint that none of the several health insurance issuers whom it approached “was able to offer [the desired] group plan because no such plan can exist as a result of the Mandate.” R. Doc. 1, ¶ 88 (emphasis added). According to the complaint, “[t]he Mandate strips Annex Medical of any choice to select an insurance plan that does not cover and finance contraception, sterilization, and abortifacient drugs and related education and counseling.” Id. ¶ 89 (emphasis added). The complaint alleged that “[a]s a result of the Mandate, Annex Medical cannot currently offer a group health plan to its employees that accords with and does not violate Plaintiffs’ sincerely-held religious beliefs.” Id. ¶ 90 (emphasis added).
These general allegations embrace the specific facts necessary to support the claim—that is, that the desired plan would exist without the mandate, and that Annex Medical would have a choice to select the desired insurance plan from an issuer if the government did not forbid the transaction. If, as alleged, the unavailability of a group health plan without the objected-to coverage is “a result of the Mandate,” then it follows in ordinary usage that the HHS mandate is a but-for cause of the desired plan’s unavailability. See Burrage v. United States, 134 S. Ct. 881, 887-88 (2014). The government recognized as much in the district court, saying “we are not challenging plaintiffs’ standing to bring the case,” because “insurance companies are
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flexible,” and “it seems very possible that they could find some way to get a plan in place” if the HHS regulations were enjoined. R. Doc. 56, at 25-26. Annex Medical thus alleged sufficiently that the mandate is the cause of its inability to obtain the desired group health insurance, and that declaratory relief and a permanent injunction of the HHS mandate would redress the company’s injury.
If more is needed, it should be evident that a market to serve Annex Medical is likely to develop if the requested relief is granted. It is unsurprising that insurers were not prepared to write policies for Annex Medical and submit them to state regulators for approval based on a temporary injunction pending appeal of indefinite duration while the law was unsettled. But the complaint seeks permanent injunctive and declaratory relief that the government cannot forbid the issuance of the group plan that Annex Medical wants to purchase. Health insurance plans without the objected-to coverage already exist for religious employers and non-profit religious organizations that were exempted under pre-Hobby Lobby regulations. See 45 C.F.R. § 147.131. The Department of Health and Human Services says the accommodation sought by Annex Medical is cost-neutral for insurers. See Hobby Lobby, 134 S. Ct. at 2782 n.38. And the Department, in light of Hobby Lobby, has proposed rules to offer the requested accommodation to closely held for-profit entities that have religious objections to providing coverage for some or all contraceptive services. See Coverage of Certain Preventive Services Under the Affordable Care Act, 79 Fed. Reg. 51,118 (proposed Aug. 27, 2014).
Annex Medical is not required to deliver to the district court a proposed insurance plan from a third-party carrier to establish standing. A plaintiff need demonstrate only that its injury is “likely to be redressed by a favorable judicial decision.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014). At the pleading stage, the court must accept all factual allegations in the complaint as true and draw all inferences in the plaintiff’s favor. Turkish Coalition of Am., Inc. v. Bruininks, 678 F.3d 617, 621 (8th Cir. 2012). Annex Medical alleged that its inability to procure the desired group health insurance plan is “a result of” the
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HHS mandate, and that the mandate “strips Annex Medical of any choice” to select its preferred plan. The majority’s speculation that every insurance company—despite the cost-neutrality of the requested accommodation—might refuse to issue a policy to Annex Medical for “political, moral, religious, administrative, or purely profitdriven reasons” is contrary to the allegations in the complaint and cannot defeat Annex Medical’s standing to challenge the HHS mandate.
Like the government, I conclude that there is an Article III case or controversy. The district court’s order denying a preliminary injunction should be vacated in light of Hobby Lobby.
______________________________
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United States Court of Appeals
For the Eighth Circuit ___________________________
No. 13-1118 ___________________________
Annex Medical, Inc.; Stuart Lind; Tom Janas
lllllllllllllllllllll Plaintiffs - Appellants
v.
Sylvia Mathews Burwell, in her official capacity as Secretary of the United States Department of Health and Human Services; Thomas E. Perez, in his official
capacity as Secretary of the United States Department of Labor; Jacob J. Lew, in his official capacity as Secretary of the United States Department of Treasury; United States Department of Health and Human Services; United States Department of Labor; United States Department of Treasury
lllllllllllllllllllll Defendants - Appellees1
------------------------------
Association of American Physicians & Surgeons; American Association of Pro-Life Obstetricians & Gynecologists; Christian Medical Association; Catholic
Medical Association; National Catholic Bioethics Center; Physicians for Life; National Association of Pro-Life Nurses; Liberty, Life, and Law Foundation; Breast Cancer Prevention Institute; Bioethics Defense Fund; Life Legal Defense Foundation; Association of Gospel Rescue Missions; Christian Legal Society; The C12 Group; Patrick Henry College; National Association of Evangelicals; Ethics
and Religious Liberty Commission of the Southern Baptist Convention; Institutional Religious Freedom Alliance; Prison Fellowship Ministries; The Right
1Pursuant to Federal Rule of Appellate Procedure 43(c)(2), the following automatic substitutions of public officers occur: Secretary Burwell for Kathleen Sebelius, Secretary Perez for Seth D. Harris (who previously was automatically substituted for Hilda Solis), and Secretary Lew for Timothy Geithner.
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Reverend W. Thomas Frerking, OSB; Missouri Roundtable For Life; Minnesota Catholic Conference; Bradley P. Jacob; Charles E. Rice; Common Good
Foundation; Common Good Alliance; Catholic Online, LLC; Sharpe Holdings, Inc.; Charles N. Sharpe; Eagle Forum Education and Legal Defense Fund
lllllllllllllllllllllAmici on Behalf of Appellants
Physicians for Reproductive Health; National Women’s Law Center; American College of Obstetricians and Gynecologists; American Society for Emergency Contraception; American Federation of State, County and Municipal Employees; Association of Reproductive Health Professionals; Feminist Majority Foundation; American Society for Reproductive Medicine; Ibis Reproductive Health; Society for Adolescent Health and Medicine; MergerWatch; American Medical Women’s
Association; NARAL Pro-Choice America; National Association of Nurse Practitioners in Women’s Health; NARAL Pro-Choice Minnesota; Society of
Family Planning; NARAL Pro-Choice Missouri; James Trussell; NARAL Pro-Choice South Dakota; Susan F. Wood; National Organization for Women
Foundation; Don Downing; National Partnership for Women and Families; Kathleen Besinque; Planned Parenthood of the Heartland; Planned Parenthood of Kansas & Mid-Missouri; Planned Parenthood Minnesota, North Dakota, South
Dakota; Planned Parenthood of the St. Louis Region and Southwest Missouri; Population Connection; Raising Women's Voices for the Health Care We Need; Service Employees’ International Union; Lambda Legal Defense and Education
Fund; National Health Law Program; Mexican American Legal Defense and Educational Fund; Asian Pacific American Legal Center; Black Women’s Health
Imperative; Forward Together; National Hispanic Medical Association; Ipas; Sexuality Information and Education Council of the U.S.; Campaign to End AIDS;
HIV Law Project; National Women and AIDS Collective; Housing Works; Americans United For Separation of Church and State; Union for Reform Judaism;
Central Conference of American Rabbis; Women of Reform Judaism; Hindu American Foundation; American Civil Liberties Union; American Civil Liberties Union of Minnesota; Anti-Defamation League; Catholics for Choice; Hadassah,
the Women’s Zionist Organization of America, Inc.; Interfaith Alliance Foundation; National Council of Jewish Women; Religious Coalition for Reproductive Choice; Religious Institute; Unitarian Universalist Association;
Unitarian Universalist Women’s Federation
lllllllllllllllllllllAmici on Behalf of Appellees
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____________
Appeal from United States District Court for the District of Minnesota - Minneapolis
____________
Submitted: October 24, 2013 Filed: October 6, 2014 ____________
Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges. ____________
RILEY, Chief Judge.
In this Religious Freedom Restoration Act (RFRA) case challenging the U.S. Department of Health and Human Services (HHS) contraceptive mandate under 42 U.S.C. § 2000bb-1(a),2 Annex Medical, Inc. (Annex), Stuart Lind, and Tom Janas appeal the district court’s refusal to enjoin preliminarily the government from enforcing the mandate.
2Pursuant to the Patient Protection and Affordable Care Act (ACA), 42 U.S.C. § 300gg-13(a)(4), HHS promulgated regulations requiring “group health plan[s]” and “health insurance issuer[s] offering group or individual health insurance coverage” to cover, without “any cost-sharing requirements,” “[w]ith respect to women, . . . evidence-informed preventive care and screenings provided for in binding comprehensive health plan coverage guidelines supported by the Health Resources and Services Administration.” 45 C.F.R. § 147.130(a)(1)(iv) (2013). At the recommendation of the Institute of Medicine, HHS adopted guidelines providing that nonexempt employers generally must provide “coverage, without cost sharing, for all Food and Drug Administration (FDA) approved contraceptive methods, sterilization procedures, and patient education and counseling.” 77 Fed. Reg. 8725, 8726 (Feb. 15, 2012) (internal marks and quotations omitted).
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I. BACKGROUND Annex is a for-profit Minnesota corporation and at the time of filing had
sixteen full-time employees and two part-time employees. When Annex filed this lawsuit, one of the ways Annex compensated its employees was by paying for a Blue Cross and Blue Shield of Minnesota (Blue Cross) group health insurance plan. This health plan covered contraceptives and had included such coverage for years.
Lind is the controlling shareholder of Annex. On religious grounds, Lind opposes both abortion and the use of contraceptives. Lind asserts he did not know the plans Annex purchased for its employees historically offered coverage for contraceptives. After Lind learned the Blue Cross plan contained this coverage, Annex continued to pay for its employees’ participation in the plan until Annex cancelled the policy as of January 31, 2013. At some point before canceling the policy, Lind asked Blue Cross “to exclude coverage for contraception, sterilization, abortifacient drugs and related education and counseling.” Although the Blue Cross plan was “not currently subject to” the regulation, Blue Cross itself refused to eliminate such coverage. (Emphasis added). Lind contacted three other Minnesota insurers, none of whom would sell Annex a plan without contraceptive coverage. According to Lind, no insurer would offer Annex such coverage even after this court issued a temporary injunction pending appeal.
At issue here is the district court’s denial of Annex and Lind’s motion for a preliminary injunction respecting the contraceptive mandate’s enforcement. Before the Supreme Court issued its opinion in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___, 134 S. Ct. 2751 (2014), the district court considered the four Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc), factors, and concluded the factors weighed in favor of the government. The district court denied the motion.
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II. DISCUSSION A. Janas Although Janas appears on the notice of appeal, he did not join the preliminary
injunction motion which forms the basis for this appeal. Its denial did not leave him personally “aggrieved.” Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 333 (1980). Because Janas has “no ‘direct stake’ in the outcome of th[is] appeal,” he lacks standing to appear before us. Hollingsworth v. Perry, 570 U.S. ___, ___, 133 S. Ct. 2652, 2662 (2013) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997)); see also 28 U.S.C. § 1292(a)(1). Without opining whether Janas’s “plans to purchase another business in 2013” gave him standing to participate in the underlying case, cf. Clapper v. Amnesty Int’l USA, 568 U.S. ___, ___, 133 S. Ct. 1138, 1147 (2013), we dismiss his appeal.
B. Annex and Lind With respect to Annex and Lind, we find a different standing issue. According to the pleadings, Annex has fewer than fifty full-time employees, which means Annex has no government-imposed obligation to offer health insurance of any kind—let alone the contraceptive coverage to which Lind objects. See 26 U.S.C. § 4980H(a), (c)(2). Only if Annex voluntarily chooses to offer insurance without the mandated contraceptive coverage, and this lack of contraceptive coverage is not “solely because of the health insurance coverage offered by such issuer,” 26 U.S.C. § 4980D(d)(1), will Annex be exposed to tax penalties.
The standing problem is the pleadings and record contain no indication any Minnesota health insurer is willing, but for the mandate, to sell a plan allowing a small employer such as Annex to prohibit coverage for a handful of healthcare products and services. What few indications appear on the record are to the contrary. The complaint alleges Annex’s current insurer (whose grandfathered plan, unaffected by the mandate, covered contraceptives) would “not permit Annex[] to modify its group health plan to omit such coverage because [the insurer] requires all group
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health plans issued to employers with fewer than 50 employees to include such coverage.” Pending this appeal, our court preliminarily enjoined the federal defendants “from enforcing the mandate . . . against Lind, Annex[], and any health insurance issuer when offering group health insurance coverage to Annex.” Annex Med., Inc. v. Sebelius, No. 13-1118, 2013 WL 1276025, at *3 (8th Cir. Feb. 1, 2013) (unpublished order) (emphasis added). Yet Lind informs us “the injunction has not enabled him to purchase” a plan conforming with his religious beliefs. According to Annex and Lind, “Group plan providers are unwilling to exclude some or any of the mandated coverage from their plans or do not currently offer a plan that excludes these items and are unwilling to submit such a plan to the Minnesota Department of Commerce for approval.” (Emphasis added).
RFRA does not allow the federal government substantially to burden Lind’s religious beliefs, as exercised through his closely-held corporation. See Hobby Lobby, 573 U.S. at ___, ___, 134 S. Ct. at 2779, 2785. But in protecting Lind’s exercise of religion, RFRA cannot injure the rights of other private parties. See City of Boerne v. Flores, 521 U.S. 507, 535-36 (1997); see also id. at 536-37 (Stevens, J., concurring); id. at 537-44 (Scalia, J., concurring). Whether for political, moral, religious, administrative, or purely profit-driven reasons, health insurance issuers are free under RFRA to decline Annex’s business. See 41 U.S.C. § 2000bb-1(a) (applying RFRA only to the “Government”); City of Boerne, 521 U.S. at 535-36 (limiting RFRA to the federal government).
Ultimately, it is unclear whether Annex’s alleged injury is caused by the government defendants and redressable by the federal courts. Article III requires Annex to prove “‘an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.’” United States v. Juvenile Male, 564 U.S. ___, ___, 131 S. Ct. 2860, 2863 (2011) (per curiam) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)). Based on the pleadings and sparse record before us, we can only speculate whether Annex’s difficulties obtaining contraceptive-free insurance are (1) caused by
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the government defendants as opposed to the independent decisions of third-party insurers, and (2) redressable by the remedy available to Annex: a permanent version of the preliminary injunction Annex already received and which failed to redress Annex’s alleged injury. Yet “[t]ime and again the Supreme Court has reminded lower courts that speculation and conjecture are not injuries cognizable under Article III.” Wallace v. ConAgra Foods, Inc., 747 F.3d 1025, 1031 (8th Cir. 2014).
Rather than resort to such speculation, we believe it best to vacate the district court’s denial and remand the case for additional analysis. See, e.g., Peske v. Tangedahl, 619 F.2d 729, 731 (8th Cir. 1980) (per curiam) (expressing our doubts as to jurisdiction but vacating and remanding in light of the district court’s failure to consider the issue); see also, e.g., Spencer v. Stork, 513 F. App’x 557, 558 (6th Cir. 2013) (per curiam); Salmon Spawning & Recovery Alliance v. U.S. Customs & Border Prot., 550 F.3d 1121, 1134 (Fed. Cir. 2008); United Food & Commercial Workers Union, Local 919 v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298, 307 (2d Cir. 1994). This will allow the district court to use its superior fact-finding abilities to determine, in the first instance, whether subject matter jurisdiction exists. See Fed. R. Civ. P. 12(b)(1); Jessie v. Potter, 516 F.3d 709, 712 (8th Cir. 2008) (“When a Rule 12(b)(1) ruling resolves disputed facts, the court can take evidence at a hearing.”); Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th Cir. 2002) (affirming a district court’s determination under Rule 12(b)(1), based on “factual determinations about the availability of th[e plaintiff’s requested] relief,” that the plaintiff lacked standing).
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III. CONCLUSION We dismiss Janas’s appeal, and as to Annex and Lind, we vacate the district
court’s order and remand for further proceedings, beginning with the parties’ Article III standing.3
COLLOTON, Circuit Judge, concurring in the judgment.
The district court’s order denying a preliminary injunction should be vacated, and the case remanded for further proceedings, but not for the reasons given by the panel majority. There is an Article III case or controversy between Annex Medical, Inc. and the United States over the government’s mandate that any group health insurance plan issued to Annex Medical must include coverage to which Annex Medical and its owner, Stuart Lind, object on religious grounds. The Affordable Care Act authorized the Department of Health and Human Services to promulgate regulations governing group health plans, and HHS issued regulations that include the disputed mandate. See 26 U.S.C. § 4980D; 42 U.S.C. § 300gg-13(a)(4); 45 C.F.R. § 147.130.
The district court denied Annex Medical’s motion for a preliminary injunction against the HHS mandate, concluding that “the Mandate places only a de minimis, not substantial, burden on plaintiffs’ practice of religion” under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq. The district court reasoned that the government’s requiring indirect financial support of a practice that violates the business owner’s religious principles does not constitute a “substantial burden” on the exercise of religion. In Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751
3On July 1, 2014, Annex and Lind filed a citation letter with this court, pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure, identifying and quoting the Supreme Court’s decision in Hobby Lobby. Because we remand this case on standing grounds, we need not, and do not, express an opinion on the impact of Hobby Lobby on the current case.
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(2014), however, the Supreme Court concluded that where business owners and their companies “sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line,” it is not for the courts “to say that their religious beliefs are mistaken or insubstantial.” Id. at 2779. The Court also observed that the business owners and for-profit companies in that case—like Lind and Annex Medical—had “religious reasons for providing health-insurance coverage for their employees,” and that foregoing insurance coverage likely would place the companies at “a competitive disadvantage in retaining and attracting skilled workers.” Id. at 2776-77. Accordingly, I would vacate the district court’s order and remand the case for further consideration in light of Hobby Lobby.
The majority, on its own initiative, decides instead that there is an Article III “standing problem” that must be addressed by the district court, because the record includes “no indication any Minnesota health insurer is willing, but for the mandate, to sell a plan allowing a small employer such as Annex to prohibit coverage for a handful of healthcare products and services.” The “problem” is illusory; the record at this stage of the litigation establishes that Annex Medical has standing to challenge the HHS mandate. The government agreed in the district court that Annex Medical has standing. The district court accepted the position of the parties and exercised jurisdiction over the case. Annex Medical, Inc. v. Sebelius, No. 12-2084, 2013 WL 101927 (D. Minn. Jan. 8, 2013). A three-judge panel of this court exercised jurisdiction over this appeal and entered a preliminary injunction pending appeal. Annex Medical, Inc. v. Sebelius, No. 13-1118, 2013 WL 1276025 (8th Cir. Feb. 1, 2013). There is no good cause at this point to second-guess the existence of a case or controversy.
Annex Medical is injured because the HHS mandate excludes it from participating in the market for group health insurance. The company wants to propose a transaction and develop a business relationship with an insurer, but the issuers are forbidden by federal law to consider Annex Medical’s proposal. A
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declaration that the mandate is contrary to RFRA and an injunction against its enforcement would redress that injury. See Clinton v. City of New York, 524 U.S. 417, 432-33 & n.22 (1998); Lepelletier v. FDIC, 164 F.3d 37, 42 (D.C. Cir. 1999).
Annex Medical also is injured because it is unable to purchase a health insurance plan for its employees without the coverage to which it objects on religious grounds. A plaintiff’s burden to establish standing depends on the stage of litigation. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). This case is at the pleading stage; the government has not even filed an answer. “At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim.” Id. (internal quotation omitted).
Annex Medical alleged in its complaint that none of the several health insurance issuers whom it approached “was able to offer [the desired] group plan because no such plan can exist as a result of the Mandate.” R. Doc. 1, ¶ 88 (emphasis added). According to the complaint, “[t]he Mandate strips Annex Medical of any choice to select an insurance plan that does not cover and finance contraception, sterilization, and abortifacient drugs and related education and counseling.” Id. ¶ 89 (emphasis added). The complaint alleged that “[a]s a result of the Mandate, Annex Medical cannot currently offer a group health plan to its employees that accords with and does not violate Plaintiffs’ sincerely-held religious beliefs.” Id. ¶ 90 (emphasis added).
These general allegations embrace the specific facts necessary to support the claim—that is, that the desired plan would exist without the mandate, and that Annex Medical would have a choice to select the desired insurance plan from an issuer if the government did not forbid the transaction. If, as alleged, the unavailability of a group health plan without the objected-to coverage is “a result of the Mandate,” then it follows in ordinary usage that the HHS mandate is a but-for cause of the desired
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plan’s unavailability. See Burrage v. United States, 134 S. Ct. 881, 887-88 (2014). The government recognized as much in the district court, saying “we are not challenging plaintiffs’ standing to bring the case,” because “insurance companies are flexible,” and “it seems very possible that they could find some way to get a plan in place” if the HHS regulations were enjoined. R. Doc. 56, at 25-26. Annex Medical thus alleged sufficiently that the mandate is the cause of its inability to obtain the desired group health insurance, and that declaratory relief and a permanent injunction of the HHS mandate would redress the company’s injury.
If more is needed, it should be evident that a market to serve Annex Medical is likely to develop if the requested relief is granted. It is unsurprising that insurers were not prepared to write policies for Annex Medical and submit them to state regulators for approval based on a temporary injunction pending appeal of indefinite duration while the law was unsettled. But the complaint seeks permanent injunctive and declaratory relief that the government cannot forbid the issuance of the group plan that Annex Medical wants to purchase. Health insurance plans without the objected-to coverage already exist for religious employers and non-profit religious organizations that were exempted under pre-Hobby Lobby regulations. See 45 C.F.R. § 147.131. The Department of Health and Human Services says the accommodation sought by Annex Medical is cost-neutral for insurers. See Hobby Lobby, 134 S. Ct. at 2782 n.38. And the Department, in light of Hobby Lobby, has proposed rules to offer the requested accommodation to closely held for-profit entities that have religious objections to providing coverage for some or all contraceptive services. See Coverage of Certain Preventive Services Under the Affordable Care Act, 79 Fed. Reg. 51,118 (proposed Aug. 27, 2014).
Annex Medical is not required to deliver to the district court a proposed insurance plan from a third-party carrier to establish standing. A plaintiff need demonstrate only that its injury is “likely to be redressed by a favorable judicial decision.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377,
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1386 (2014). At the pleading stage, the court must accept all factual allegations in the complaint as true and draw all inferences in the plaintiff’s favor. Turkish Coalition of Am., Inc. v. Bruininks, 678 F.3d 617, 621 (8th Cir. 2012). Annex Medical alleged that its inability to procure the desired group health insurance plan is “a result of” the HHS mandate, and that the mandate “strips Annex Medical of any choice” to select its preferred plan. The majority’s speculation that every insurance company—despite the cost-neutrality of the requested accommodation—might refuse to issue a policy to Annex Medical for “political, moral, religious, administrative, or purely profit-driven reasons” is contrary to the allegations in the complaint and cannot defeat Annex Medical’s standing to challenge the HHS mandate.
Like the government, I conclude that there is an Article III case or controversy. The district court’s order denying a preliminary injunction should be vacated in light of Hobby Lobby.
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 CASE 0:12-cv-02804-DSD-SER Document 73 Filed 08/18/15 Page 1 of 40
United States District Court District of Minnesota
ANNEX MEDICAL, INC., STUART LIND, ARMOR, INC. d/b/a STORMS WELDING & MANUFACTURING, and TOM JANAS
Plaintiffs, No. 0:12-cv-02804-DSD-SER v. SYLVIA BURWELL, in her official capacity as Secretary of the United States Department of Health and Human Services; THOMAS E. PEREZ, in his official capacity as 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; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
Amended Complaint for Declaratory and Injunctive Relief
Annex Medical, Inc., Stuart Lind, Armor, Inc. d/b/a Storms Welding & Manufacturing, and Tom Janas (collectively, “Plaintiffs”), by and through their counsel, complain against Defendants as follows:
Introduction
1. In this action, Plaintiffs challenge certain regulations adopted pursuant to the 2010 Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119, that force businesses and their owners to include in their group health plans coverage for products
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and services that violate their sincerely-held religious beliefs under threat of substantial monetary fines, penalties and significant competitive disadvantages.
2. Specifically, Plaintiffs seek declaratory and injunctive relief from the operation of the final rules promulgated by the Defendants, mandating that all group health plans include coverage, without cost sharing, for “[a]ll Food and Drug Administration [(FDA)] approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity” in plan years beginning on or after August 1, 2012 (“the Mandate”), see 45 CFR § 147.130 (a)(1)(iv), as confirmed at 77 Fed. Reg. 8725 (Feb. 15, 2012), adopting and quoting Health Resources and Services Administration (HRSA) Guidelines found at http://www.hrsa.gov/womensguidelines (“HRSA Guidelines”).
3. Plaintiffs Stuart Lind and Tom Janas are devout Catholics who are steadfastly committed to biblical principles and the teachings of the Catholic Church, including the belief that life involves the creative action of God, and is therefore sacred. Lind and Janas therefore believe that any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation is an evil forbidden by God.
4. Lind owns and operates Plaintiff Annex Medical, Inc. (“Annex Medical”), and Sacred Heart Medical, Inc. (“Sacred Heart Medical Medical”) (together, “Companies”), companies that collectively design, manufacture and sell medical devices.
5. Janas owns and operates Armor, Inc. d/b/a Storms Welding & Manufacturing (“Storms”), an agricultural metal fabricator.
6. Lind and Janas strive to operate their businesses in ways that adhere to and are not violative of their religious beliefs.
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7. Lind’s and Janas’s religious beliefs compel them to provide for the physical health of their employees. They have exercised this belief by offering group health plans for their employees.
8. The Mandate requires that Plaintiffs’ group health plans provide and pay for coverage for contraception, sterilization, abortifacient drugs, and related education and counseling.
9. Among the products the Mandate requires Plaintiffs’ group plans to fund are Plan B (the “morning after pill”) and Ella (the “week after pill”),1 drugs that are designed to destroy early human life shortly after conception.
10. Lind and Janas believe that paying for a group health insurance plan that complies with Defendants’ Mandate is sinful and immoral because it requires them and/or the businesses they control to pay for contraception, sterilization, abortifacient drugs and related education and counseling in violation of their sincere and deeply-held religious beliefs and the teachings of the Catholic Church.
11. Lind and Janas desire to offer group health plans to the employees of Annex Medical and Storms, but wishes to exclude coverage for products and services that violate their religious beliefs, such as those required by the Mandate. Yet Defendants will not allow them to do so.
12. Lind and Annex Medical have been coerced by Defendants’ Mandate to discontinue their group health insurance plan to avoid violating their religious beliefs. 2 Annex Medical’s group health plan terminated on January 31, 2013.
1 FDA Office of Women’s Health, Birth Control Guide, available at www.fda.gov/downloads/ForConsumers/ByAudience/ForWomen/FreePublications/UCM282014 .pdf.
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13. In June, 2012, Janas decided to accept a below-market-value offer to purchase his former business, Roffe Container, Inc., in part to avoid having to conform Roffe’s group health plan to the Mandate’s requirement in violation of his religious beliefs.
14. In 2013, Janas purchased Storms. Storms does not offer a group health plan for its employees because he must violate his religious beliefs to do so.
15. The Mandate will not permit Plaintiffs to operate their businesses in accordance with their religious beliefs.
16. If Plaintiffs choose not to violate their religious beliefs by offering a group health plan that does not comply with the Mandate, they are subject to substantial fines and penalties. 26 U.S.C. § 4980D.
17. If Plaintiffs choose to exercise their religious beliefs by offering a group health to provide for the physical health of their employees, but the group health plan does not comply with the Mandate, Plaintiffs are subject to substantial fines and penalties. 26 U.S.C. § 4980D.
18. Because it was forced to discontinue its employee health care in order to avoid violating Catholic religious beliefs, Annex Medical is now and will in the future face significant competitive disadvantages in the marketplace, in that it is unable to offer health insurance to current and prospective employees, where as its competitors will be able to do so without violating their consciences.
19. Lind’s decision to discontinue health care was not done willingly, but under the coercive pressure of the Mandate.
2 Because Annex Medical and Storms employ fewer than 50 full-time employees, they are not subject to fines and penalties if they does not offer a group health plan to their employees. See 26 U.S.C. § 4980H(c)(2)(A). However, all employers, regardless of size, that offer a group health plan, must comply with the Mandate or face substantial fines and penalties. 26 U.S.C. § 4980D (imposing $100 per-day, per-employee fine on employers that offer group health plan that do not comply with the coverage requirements of the Mandate).
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20. Further, because providing health care is accepted to be a moral and religious duty by the Plaintiffs, not offering group health plans violates the Plaintiffs’ religiously-held duty to provide for the physical health of their employees, including their health care.
21. Janas has been pressured by the Mandate to forgo lucrative business opportunities in order to avoid having to violate his religious beliefs.
22. Janas’ decision to not offer group health care for Storms’s employees is not done willingly, but under the coercive pressure of the Mandate.
23. Plaintiffs will offer group health plans in the future, but only if they can do so without violating their religious beliefs with respect to contraception, sterilization and abortifacient drugs.
24. Defendants have exempted certain employers from complying with the requirements of the Mandate in an attempt to accommodate the religious beliefs of those employers, see 76 Fed. Reg. 46621, 46623 (issued on August 1, and published on August 3); however, despite their sincere religious objections, Plaintiffs do not, and will not, meet the Defendants’ narrow qualifications for such an exemption.
25. The Mandate violates Plaintiffs’ statutory and constitutional rights by coercing them to violate their sincerely held religious beliefs under the threat of fines and penalties.
26. The Mandate violates Plaintiffs’ statutory and constitutional rights by forcing them to violate certain religious beliefs in order to comply with their religiously-held duty to offer group health care.
27. The Mandate violates Plaintiffs’ statutory and constitutional rights by requiring them to choose between violating their religious beliefs and facing significant competitive disadvantages in the marketplace.
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28. Defendants’ actions violate Plaintiffs’ right to freely exercise their religion, which is protected by the Religion Clauses of the First Amendment to United States Constitution and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”).
29. Defendants’ actions also violate Plaintiffs’ right to freedom of speech, which is protected by the Free Speech Clause of the First Amendment to the United States Constitution.
30. Further, Defendants’ actions violated the Administrative Procedures Act, 5 U.S.C. § 553, by adopting and imposing the Mandate without prior notice or public comment.
31. Plaintiffs are currently being impermissibly coerced to violate their religious beliefs. Plaintiffs’ will continue to be harmed unless this court provides them their request relief from Defendants’ illegal and unconstitutional actions.
Jurisdiction and Venue
32. This action arises under the Constitution and laws of the United States. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1361. This Court has jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 & 2202, 42 U.S.C. § 2000bb-1, and 5 U.S.C. § 702. This Court has jurisdiction to award reasonable attorney’s fees and costs under the Equal Justice Act, 28 U.S.C. § 2412, and 42 U.S.C. § 1988.
33. Venue is appropriate in this district pursuant to 28 U.S.C. § 1391(e)(1) because the Plaintiffs reside within this district.
The Parties
34. Plaintiff Stuart Lind is an individual and a citizen of the State of Minnesota and the United States. Lind is the owner of Plaintiff Annex Medical as well as its President and Chief Executive Officer.
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35. Plaintiff Annex Medical, Inc., a Minnesota corporation, is an original equipment manufacturer of medical devices. It is located at 6018 Blue Circle Drive, Minnetonka, Minnesota 55343. It is operated as a c-corporation by Plaintiff Stuart Lind.
36. Plaintiff Tom Janas is an individual and citizen of the State of Minnesota and the United States.
37. Plaintiff Storms, Inc. d/b/a Storms Welding & Manufacturing, a Minnesota corporation, is an agricultural metal fabricator. It is located at 513 Lake Street West, Cologne, Minnesota 55322. Storms is operated as an s-corporation and is owned exclusively by Plaintiff Tom Janas.
38. Defendant United States Department of Health and Human Services (“HHS”), is an agency of the United States, and is responsible for the administration and enforcement of the Mandate.
39. Defendant Sylvia Burwell is the Secretary of HHS. As Secretary, she is responsible for the operation and management of HHS. She is sued in her official capacity only.
40. Defendant United States Department of Labor (DOL) is an agency of the United States government and is responsible for the administration and enforcement of the Mandate.
41. Defendant Thomas E. Perez is the Secretary of DOL. As Secretary, she is responsible for the operation and management of DOL. She is sued in her official capacity only.
42. Defendant United States Department of the Treasury is an agency of the United States government and is responsible for the administration and enforcement of the Mandate.
43. Defendant Jacob J. Lew is the Secretary of the Treasury. As Secretary, he is responsible for the operation and management of the Treasury. He is sued in his official capacity only.
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Factual Allegations
Plaintiffs’ Religious Beliefs 44. Lind and Janas are devout Catholics who are steadfastly committed to following
the religious, ethical and moral teachings of the Catholic Church. 45. Lind and Janas strive to adhere to these teachings in all aspects of their lives,
including their operations of their businesses. 46. Lind and Janas sincerely believe that the Catholic faith does not permit them to
violate Catholic religious, ethical and moral teachings in the operations of their businesses. 47. The Catholic Church teaches and Lind and Janas believe that “[h]uman life must
be respected and protected absolutely from the moment of conception.” Catechism of the Catholic Church, § 2270.
48. In accordance with the Catechism and Pope Paul VI’s 1968 encyclical Humanae Vitae, Lind and Janas believe that “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation” is a grave sin.
49. The Catholic Church teaches that contraception, sterilization, abortion and use of abortifacient drugs are intrinsically evil and immoral because they are capable of preventing or destroying a human life.
50. Catholic leaders have publicly explained that compliance with the Mandate is a direct violation of the Catholic faith.
51. In an interview with Catholic Action for Faith and Family, Vatican Cardinal Raymond Burke agreed that Catholic employers who comply with the Mandate are “cooperating with the…sin of contraception.” Cardinal Burke explained,
It is not only a matter of what we call ‘material cooperation’ in the sense that the employer by giving this insurance benefit is
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materially providing for the contraception but it is also ‘formal cooperation’ because he is knowingly and deliberately doing this, making this available to people. There is no way to justify it. It is simply wrong.3 52. The Catholic Catechism teaches and Lind and Janas believe that “[f]ormal cooperation in an abortion constitutes a grave offense.” Catechism of the Catholic Church, § 2272. 53. Lind and Janas believe that their religious faith require them to adhere to Catholic teaching regarding contraception, sterilization, abortion and abortifacient drugs in all aspects of their lives, including in their operation of their businesses. 54. Lind and Janas believe that their religious faith requires them to refrain from materially or formally cooperating with contraception, sterilization, abortion and abortifacient drugs in all aspects of their lives, including in their operation of their businesses. 55. Consequently, Lind and Janas believe that it is immoral and sinful for them to intentionally participate in, pay for, facilitate access to, or otherwise support contraception, sterilization, abortifacient drugs, and related education and counseling through their inclusion in their businesses’ group health plans, as is required by the Defendants’ Mandate. 56. The Catholic Church teaches Life and physical health are precious gifts entrusted to us by God. We must take reasonable care of them, taking into account the needs of others and the common good. Concern for the health of its citizens requires that society help in the attainment of living-conditions that allow them to grow and reach maturity: food and clothing, housing, health care, basic education, employment, and social assistance.
3 Cardinal Burke Says Catholic Employers Cannot Conscientiously Comply with HHS Regulation, CNS News,http://cnsnews.com/video/national/cardinal-burke-says-catholicemployers-cannot-conscientiously-comply-hhs-regulation (video interview).
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Catechism of the Catholic Church, § 2288 (emphasis added).4 57. The Ethical and Religious Directives for Catholic Health Care Services (Fifth
Edition) provides Catholic health care ministry is rooted in a commitment to promote and defend human dignity; this is the foundation of its concern to respect the sacredness of every human life from the moment of conception until death. The first right of the human person, the right to life, entails a right to the means for the proper development of life, such as adequate health care.
Part One, Introduction (emphasis added). 58. Consistent with this teaching and directive, Lind and Janas sincerely believe they
have a duty, when possible, to provide for the needs of others, including their health care. 59. As part of their commitment to fulfilling this moral and religious duty, Lind’s and
Janas’s businesses have provided generous group health insurance plans for their employees and their families.
60. Prior to terminating its group health plan, Annex Medical provided health insurance to its employees through Blue Cross and Blue Shield of Minnesota (“Blue Cross”) since 1998.
61. Prior to purchasing Storms, each company with employees which Janas has owned has provided health insurance for its employees. Stuart Lind and Annex Medical
62. Annex Medical, Inc. was founded in 1988 in the basement of Plaintiff Stuart Lind’s residential home. Annex Medical initially developed medical instruments for
4 The Christian Bible instructs believers to “Heal the sick.” Matthew 10:8 (New International Version). “The [Catholic] Church has received this charge from the Lord and strives to carry it out by taking care of the sick as well as by accompanying them with her prayer of intercession.” Catechism of the Catholic Church, § 1509.
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cardiovascular and urology procedures. In 1990, it began manufacturing and selling heart biopsy and urology stone baskets. While Annex Medical currently produces a variety of products, its focus is on specialty retrieval devices for use with small diameter endoscopes.
63. Annex Medical currently employs 16 full-time employees and 2 part-time employees.
64. Annex Medical is organized and operated as a c-corporation. 65. Plaintiff Stuart Lind is Annex Medical’s current Director, President and Chief Executive Officer. 66. In 2001, Lind created a separate entity called Sacred Heart Medical, Inc. 67. Sacred Heart Medical is organized and operated as an s-corporation. 68. Lind is Sacred Heart Medical’s current Director, President and Chief Executive Officer. 69. Where Annex Medical focuses on making product for companies (who will then market those products under their own name), Sacred Heart Medical focuses on providing product directly to hospitals. 70. In addition to providing group health insurance, Lind strives to operate his Companies in accordance with the religious, ethical and moral teachings of the Catholic Church in other ways. 71. Annex Medical’s mission statement reads
The mission of Annex Medical, Inc. is to manufacture medical products of high quality and good value, while conducting business in a way that is pleasing to God and is faithful to Biblical principles and values. We will accomplish this mission from a
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Christian perspective that respects others who believe differently while sharing the joy we have received from Jesus Christ.5 Lind has adopted the same mission statement for Sacred Heart Medical.6 72. In 2001, Lind officially and publicly consecrated his Companies to the Sacred Heart Medical of Jesus. Consecration to the Sacred Heart of Jesus is a Roman Catholic ceremony recognizing the Kingship of Jesus Christ, in this case, over Lind’s business. Reverend Father Thomas Dufner, Lind’s pastor at the time, officiated the ceremony. Over 30 witnesses were present and a certificate of the ceremony bearing signatures of the pastor, president and vice president has been posted in the entrance of the company’s office ever since that date. This consecration is both a public profession of Lind’s faith and a formal commitment to operate Annex Medical and Sacred Heart Medical in accordance with the teaching of Jesus Christ. 73. Lind’s belief in the sanctity of life and his religious and moral objections to contraception, sterilization, abortion and cooperation with the same are also apparent in his Companies’ business relationships. 74. Distributors and sales representatives that contract with Sacred Heart Medical to purchase and market products manufactured by Annex Medical must represent that they will “at no time distribute or represent products that are labeled with indications for contraception, sterilization, abortion, pregnancy termination, or in vitro fertilization.” 75. In 1998, Lind made a very difficult and costly business decision based on his religious convictions. Annex Medical had developed and was successfully marketing a heart biopsy forceps. The forceps was used on patients who had received transplanted hearts. The heart
5 Mission Statement, Annex Medical Inc., http://www.annexmedical.com/About_Us.html (last visited Oct. 31, 2012). 6 Mission Statement, Sacred Heart Medical, http://www.sacredheartmedical.com/company.html (last visited Oct. 31, 2012).
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donors were declared “brain dead” under certain criteria determined by the medical community. However, Lind became informed that the harvesting procedure of “brain dead” donors actually begins while the donor’s heart is beating and there is normal blood pressure and circulation. Some within the medical profession have concluded that this invalidates the determination that a donor’s life has ended. Lind believes that life is a fundamental right received from our Creator and that it is morally unacceptable to end prematurely the life of a dying person. Accordingly, he discontinued this promising product line so as to not be complicit with this morally unacceptable act.
76. In 2001, Annex Medical ended its 7-year relationship with American Express, which Annex Medical was using to facilitate its employee retirement plans, upon learning that American Express contributes money to Planned Parenthood, a provider of abortion and abortion services.
77. Plaintiffs’ religious beliefs prohibit them from intentionally providing a group health plan that provides coverage for contraception, sterilizing, and abortifacient drugs and related education and counseling.
78. Shortly after renewing its prior group health plan, Lind became aware of the national controversy surrounding the Mandate, including the lawsuit filed by Hercules Industries, a Colorado corporation, against Defendants to enjoin enforcement of the Mandate. Newland v. Sebelius, No. 12-cv-01123, 2012 U.S. Dist. LEXIS 104835 (D. Colo. July 27, 2012) (order granting preliminary injunction), appeal docketed, No. 12-1380 (10th Cir. Sept. 26, 2012).
79. Lind then re-examined Annex Medical’s prior group health plan to verify it did not include coverage for drugs or services that do not accord with Plaintiffs’ religious beliefs. During this re-examination, Lind discovered that Annex Medical’s prior group health plan
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provided coverage for abortifacient drugs, sterilization and contraception supplies and prescription medications.7
80. Coverage for these drugs and services was not included knowingly as to do so would be contrary to Plaintiffs’ sincerely-held religious beliefs.
81. Upon learning that Annex Medical’s prior group health plan provided coverage in violation of Plaintiffs’ Catholic faith, Lind immediately contacted Blue Cross to request that Annex Medical’s group health plan be modified to exclude coverage for contraception, sterilization, abortifacient drugs and related education and counseling.
82. Blue Cross informed Lind that Blue Cross did not permit Annex Medical to modify its group health plan to omit such coverage because Blue Cross requires all group health plans issued to employers with fewer than 50 employees to include such coverage.
83. Lind then inquired with three other insurance issuers in Minnesota as to whether they could sell a group health plan to Annex Medical that excludes coverage for contraception, sterilization and abortifacient drugs.
84. None of the issuers was able to offer such a group plan because no such plan can exist as a result of the Mandate, for it requires all insurance issuers to provide Mandatecompliant coverage in all group health plans. 42 U.S.C. § 300gg-13; 45 CFR 147.130(a)(1)(iv).
85. The Mandate strips Annex Medical of any choice to select an insurance plan that does not cover and finance contraception, sterilization, and abortifacient drugs and related education and counseling.
7 During the examination of its group health plan, Plaintiffs also discovered it had included coverage for similar contraceptive and abortion-inducing drugs in prior group health plans. Coverage for these drugs was not included knowingly as to do so would be contrary to Plaintiffs’ sincerely-held religious beliefs.
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86. As a result of the Mandate, Annex Medical cannot currently offer a group health
plan to its employees that accords with and does not violate Plaintiffs’ sincerely-held religious
beliefs.
87. Lind believes he has a moral and religious duty to provide a group health plan for
Annex Medical employees; however, he cannot do so without violating their religious beliefs.
88. Despite both religious directives, Lind and Annex Medical determined they must
discontinue Annex Medical’s group health plan.
89. This decision to discontinue health care was not done willingly, but under the
coercive pressure of the Mandate, which has eliminated Annex Medical’s choice to purchase a
plan that accords with the Catholic faith.
90. On October 22, 2012, Lind held a company meeting at which he notified Annex
Medical employees of his decision to discontinue Annex Medical’s group health plan, effective
January 31, 2013. In a written letter he distributed during the meeting, Lind explained, in part,
I regret to announce that effective January 31, 2013, Annex Medical will be canceling its Blue Cross Blue Shield (BCBS) group health insurance plan. We are, at this time, working hard to find alternatives.
Recently, I discovered our BCBS plan includes abortion, abortifacient drugs, sterilization and contraceptives. The Roman Catholic Church, of which I am a strong adherent, teaches these to be innate evils and therefore sinful. I would be in material cooperation (assisting in another’s wrongdoing without approving it) if we continue to offer a health insurance plan that includes these services. As those who have worked here many years may know, I feel a strong obligation to run both Sacred Heart Medical and Annex Medical in line with my religious convictions. This difficult decision was made through several consultations and a meeting with my pastor, Fr. John Echert.
Lind’s pastor, Fr. John Echert, gave a presentation at the company meeting during which he
explained in detail why the Mandate was morally and religious problematic for Lind.
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91. By coercing them to discontinue their group health plan, the Mandate has illegally and unconstitutionally coerced Lind and Annex Medical to violate their Catholic conscience that compels them to provide for the physical health of others, including their health care.
92. Discontinuing insurance coverage threatens the health and economic stability of Annex Medical and its employees. It will also force Annex Medical to suffer competitive disadvantages, in that it will not be able to offer current and prospective employees the important benefit of health insurance, whereas other employers will be able to do so without violating their religious beliefs.
93. Lind and Annex Medical did not want to discontinue Annex Medical’s group health plan, but were coerced by the Mandate to do so under the threat of violating their religious beliefs.
94. If Lind and Annex Medical choose to provide an employee group health plan, Annex Medical will be forced to offer a Mandate-compliant group health plan.
95. If Annex Medical provides a group health plan that does not comply with the Mandate, Annex Medical is subject to substantial fines and penalties.
96. The Mandate illegally and unconstitutionally forces Lind and Annex Medical to choose between violating their sincerely-held religious beliefs and incurring substantial fines and penalties.
97. The Mandate illegally and unconstitutionally forces Lind and Annex Medical to violate their religious beliefs with respect to contraception, sterilization and abortifacient drugs in order to exercise their religiously-held duty to provide for the physical health of their employees.
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98. The Mandate illegally and unconstitutionally forces Lind and Annex Medical to choose between violating their religious beliefs with respect to contraception, sterilization and abortifacient drugs and facing significant competitive disadvantages in the marketplace.
99. In other words, the Mandate illegally and unconstitutionally forces Lind and Annex Medical to abandon the precepts of the Catholic faith in order to offer group health insurance.
100. Lind simply wishes to operate Annex Medical in accordance with his Catholic faith and would do so but for the Mandate and its fines, penalties and substantially burdensome coercive effects. Tom Janas
101. Tom Janas is a Minnesota entrepreneur and businessman. 102. Janas first became a business owner in 2004, when he acquired DQCI Services, LLC, a dairy testing laboratory located in Mounds View, Minnesota. 103. On December 29, 2009, Janas started DQCI Products, LLC, a small distribution company established to create a new dairy testing process. DQCI Products had no employees. 104. On October 31, 2011, Janas sold DQCI Services to Eurofins Scientific. 105. On February 29, 2008, Janas purchased Roffe Container, Inc. (“Roffe”), a manufacturer of blow-molded plastic bottles for the dairy industry. 106. Janas endeavors to operate his businesses in accordance with the religious, ethical and moral teachings of the Catholic Church. 107. Consistent with Janas’ religious beliefs, Janas has provided for the welfare of the employees of Roffe and DQCI Services in numerous ways, including offering his employees generous group health insurance plans.
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108. Janas’ personal religious beliefs were no secret to anyone employed at either Roffe or DQCI Services. As a reminder of Jesus’ redemptive sacrifice, Janas hung a Crucifix on the wall of his office. Janas would also consistently offer a prayer for his companies and their employees prior to business meetings. Further, during the last three to four years of Janas’s ownership, DQCI made charitable contributions in the amount of $6000 per month to a number of religiously-focused charities, including St Peter’s Catholic Church, the Heritage Foundation, Alliance Defending Freedom, Covenant House, and Relevant Radio, a Catholic radio station.
109. In April of 2012, Consolidated Container Company (“CCC”), a leading developer and manufacturer of plastic packaging, approached Janas about the possibility of purchasing Roffe.
110. Prior to being approached by CCC, Janas had become aware of the Mandate and the national controversy surrounding it. Janas concluded that if Roffe continued to offer a group health plan to Roffe employees, it would eventually be forced to include in its plan all the FDAapproved preventive care services required by the Mandate—contraception, sterilization and abortifacient drugs and related education and counseling. Janas realized he could not provide such coverage without violating his conscience and the religious, ethical and moral teaching of the Catholic Church.
111. Consequently, Janas began actively researching whether there were ways to avoid compliance with the Mandate while continuing to fulfill his religiously-held duty to provide health insurance coverage to Roffe employees. Janas concluded that the only way to avoid compliance with the Mandate was to discontinue his group health plan. He chose not to, however, for to do so would violate his religiously-held duty to provide for the physical health of his employees.
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112. Janas also understood that if he continued to offer a group health plan that did not comply with the Mandate as he preferred, he would be in breach of the law, and subject to fines and penalties.
113. In June 2012, CCC made an offer to acquire most of Roffe’s assets. Based on the market value at that time, CCC’s offer was below what Janas believed Roffe’s assets to be worth.
114. Yet to avoid the inevitable confrontation with the Mandate and its penalties for non-compliance, Janas accepted CCC’s offer to purchase Roffe’s assets.
115. In 2013, Janas purchased Storms, Inc. d/b/a Storms Welding & Manufacturing. 116. Janas operates Storms as an s-corporation. 117. Janas is the sole owner of Storms. 118. Storms employees 15 full-time employees. 119. Like his previous businesses, Janas strives to operate Storms in accordance with his sincerely-held religious beliefs. 120. Storms does not offer a group health plan because any group health plan is required by the Mandate to include coverage for contraception, sterilization, abortifacient drugs and related education and counseling. 121. The Mandate requires Janas to violate his religious beliefs in order to fulfill his religious duty to provide his employees with a group health plan. 122. The Mandate strips Janas of any choice to select a group health plan that does not cover and finance contraception, sterilization, and abortifacient drugs and related education and counseling. 123. The Mandate prevents Janas from offering a group health plan to its employees that accords with and does not violate Janas’s sincerely-held religious beliefs.
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124. . Because Storms cannot offer a group health plan, it faces significant competitive disadvantages in the marketplace, in that it is be unable to offer health insurance to current and prospective employees, where as its competitors will be able to do so without violating their consciences.
125. Janas wishes to offer a group health plan that accords with his Catholic faith and would do so but for the Mandate and its fines, penalties and substantially burdensome coercive effects. The ACA and the Mandate
126. The Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119, enacted in March 2010, requires group health plans to provide women with “preventive care and screenings” at no charge to the patient. See 42 U.S.C. § 300gg-13(a)(4).
127. Specifically, the ACA provides: A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for… (4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.
Id. 128. In July, 2010, Defendants issued regulations ordering HHS’s Health Resources
Services Administration (“HRSA”) to develop guidelines that would determine what preventative care and screenings would be mandated under the ACA. See 75 Fed. Reg. 41728 (July 19, 2010).
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129. HRSA commissioned and funded a committee at the Institute of Medicine (“IOM”) to recommend which drugs, procedures, and services should be covered by all health plans as preventive care for women.
130. IOM’s report8 to HRSA recommended that preventative care for women include “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.”
131. On August 1, 2011, without notice of rulemaking or opportunity for public comment, the HRSA adopted the IOM’s recommendations in full. See Health Resources and Services Administration, Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines (last visited Oct. 31, 2012) (“HRSA Guidelines”).
132. Contemporaneously, Defendants issued an “interim final rule” requiring “group health plan[s] and…health insurance issuer[s] offering group or individual insurance coverage [to] provide benefits for and prohibit the imposition of cost-sharing with respect to” the women’s preventive care and services included in the HRSA Guidelines for plan years beginning on or after August 1, 2012. 76 Fed. Reg. 46622, 46629 (issued on August 1, and published on August 3); 45 CFR 147.130(a)(1)(iv).
133. On February 15, 2012, Defendants issued final regulations—referred to herein as the Mandate—by adopting the August 1 interim final rule “without change.” 77 Fed. Reg. 872530 (Feb. 15, 2012).
8 INSTITUTE FOR MEDICINE, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS (2011), available at http://cnsnews.com/sites/default/files/documents/PREVENTIVE%20SERV ICESIOM%20REPORT.pdf.
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134. Among the FDA-approved “contraceptive methods” that all group health plans must provide at no cost are Plan B (the “morning after pill”) and Ella (the “week after pill”),9 drugs that are designed to destroy early human life shortly after conception.
135. Plan B and Ella can prevent the implantation of a human embryo in the wall of the uterus and can cause the death of an embryo. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus or to cause the death of an embryo each constitute an “abortion” as that term is used in federal law and Catholic teaching. Consequently, Plan B and Ella are abortifacients.
136. The ACA requires employers with more than 50 full-time employees (or full-time employee equivalents) to provide federal government-approved health insurance coverage or pay substantial fines and penalties. 26 U.S.C. § 4980H.
137. However, even employers with fewer than 50 full-time employees must comply with the Mandate, under threat of substantial fines, if they offer a group health plan because the Mandate applies to all non-exempt, non-grandfathered group health plans regardless of the employer’s size. 42 U.S.C. § 300gg-13(a)(4) (Mandate applies to all group health plans); 26 U.S.C § 4980D (imposing fines on “failure of a group health plan to meet the requirements” of the ACA).
138. Moreover, the ACA and the Mandate prevent all employers (and individuals) from selecting a group health plan that does not include coverage for contraceptives, sterilization, abortifacient drugs and related education and counseling because the ACA requires
9 FDA Office of Women’s Health, Birth Control Guide, available at www.fda.gov/downloads/ForConsumers/ByAudience/ForWomen/FreePublications/UCM282014 .pdf.
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all “health insurance issuers offering group or individual health insurance coverage” to provide Mandate-compliant coverage. 42 U.S.C. § 300gg-13(a)(4).
139. Therefore, Plaintiffs cannot avoid the Mandate by purchasing a group health plan that accommodates their conscience and religious beliefs because no such plan exists.
140. The Mandate does not apply to preexisting group health plans that are considered “grandfathered.” 76 Fed. Reg. 46623 & n.4; see also 42 U.S.C. § 18011(a)(3-4) (specifying those provisions of the ACA that apply to grandfathered health plans).
141. To remain “grandfathered,” a group health plan must now and in the future comply with regulations issued by Defendants. See 42 U.S.C. § 18011(a)(2); 45 CFR § 147.140; 75 Fed. Reg. 34538, 34545 (June 17, 2010); see also HealthReform.gov, “Fact Sheet: Keeping the Health Plan You Have: The Affordable Care Act and “Grandfathered” Health Plans,” http://www.healthreform.gov/newsroom/keeping_the_health_plan_you_have.html (last visited Oct. 31, 2010).
142. The ACA and the Mandate do not apply equally to members of certain religious groups.
143. Individual “member[s] of a recognized religious sect or division thereof” who are “conscientiously opposed to acceptance of the benefits of any private or public insurance” are exempted from complying with certain provisions of the ACA. 26 U.S.C. §§ 5000A(d)(2)(a)(i), 1402(g)(1).
144. The Mandate indicates that HRSA “may” exempt certain “religious employers” from complying with the Mandate. 45 C.F.R. § 147.130(a)(iv)(A); 76 Fed. Reg. at 46623.
145. Defendants have defined which employers are “religious” for purposes of this exemption. 45 C.F.R. § 147.130(a)(iv)(B).
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146. HRSA may grant exemptions for “religious employers” that “meet[] all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.130(a)(iv)(B)(1)-(4).
147. The sections of the Internal Revenue Code referenced in the fourth criterion refer to “churches, their integrated auxiliaries, and conventions or associations of churches” and “the exclusively religious activities of any religious order,” that are exempt from taxation under 26 U.S.C. § 501(a). 26 U.S.C. § 6033(a)(1), (a)(3)(A)(i), (a)(3)(A)(iii).
148. The Mandate does not place limits on HRSA’s discretion to establish an exemption for “religious employers,” or to grant such exemptions to organizations meeting the Defendants’ definition of “religious employer.”
149. The Mandate contains no exemptions for for-profit organizations, such as Plaintiff Annex Medical, even when those organizations have a sincere religious objection to the Mandate’s requirement that their group health plans provide coverage, at no cost, for contraception, sterilization, abortifacient drugs and related education and counseling.
150. Defendants stated that it based the exemption for “religious employers” on comments and feedback received on the July 19, 2010 interim final rule, see 76 Fed. Reg. at 46623, and the August 1, 2011 amendments to the interim final rule, see 77 Fed. Red. at 8726.
151. Defendants stated they received over 200,000 responses to the request for comments to the August 1, 2011 amendments to the interim final rule. 77 Fed. Reg. at 8726.
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152. Through these comments, Defendants were made aware of numerous objections to the Mandate, including, but not limited to, the following:
• “the religious employer exemption is too narrow”; • “the definition of religious employer [should] be broadened so that more
sponsors of group health plans would qualify for the exemption”; • “the exemption for religious employers will not allow them to continue their
current exclusion of contraceptive services from coverage under their group health plans”; • that for certain employers to “pay for [contraceptive] services…would be contrary to their religious beliefs”; and • “if the definition of religious employer is not broadened, [employers] could cease to offer health coverage to their employees in order to avoid having to offer coverage to which they object on religious grounds.” 77 Fed. Reg. at 8726-27. 153. Despite these, and other, known religious objections, Defendants did not expand the narrow exemption for organizations defined as “religious employers,” but finalized the interim final rule “without change.” 77 Fed. Reg. at 8730. 154. With full knowledge of the aforementioned objections, Defendants issued the Mandate, which substantially burdens the religious exercise of Plaintiffs and millions of other Americans. 155. Because the Mandate arbitrarily exempts certain plans and employers for a variety of secular reasons, but does not exempt similar plans and employers for religious reasons, the Mandate impermissibly targets religious conduct. 156. The Mandate was adopted without giving due weight to the tens of thousands of public comments submitted to HHS in opposition to the Mandate.
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157. The Mandate forces Plaintiffs and others to adopt and endorse Defendants’ moral view of contraception, sterilization, abortifacient drugs and related education and counseling.
158. On February 10, 2012, HHS issued a document entitled “Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing Under Section 2713 of the Public Health Service Act, Section 715(a)(1) of the Employee Retirement Income Security Act, and Section 9815(a)(1) of the Internal Revenue Code” (“Guidance”),10 which established a “temporary enforcement safe harbor.”
159. Under the “Guidance,” until “the first plan year that begins on or after August 1, 2013…[n]either employers, nor group health plans, nor group health insurance issuers will be subject to any enforcement action by the Departments for failing to cover recommended contraceptive services without cost sharing in non-exempted, non-grandfathered group health plans established or maintained by an organization…that meets all of the following criteria:
1. The organization is organized and operates as a non-profit entity. 2. From February 10, 2012 onward, contraceptive coverage has not been
provided at any point by the group health plan established or maintained by the organization, consistent with any applicable State law, because of the religious beliefs of the organization. 3. …the group health plan established or maintained by the organization (or another entity on behalf of the plan, such as a health insurance issuer or thirdparty administrator) must provide to participants the attached notice, as described below, which states that contraceptive coverage will not be provided under the plan for the first plan year beginning on or after August 1, 2012.
10 HHS, Guidance on the Temporary Enforcement Safe Harbor, http://cciio.cms.gov/resources /files/Files2/02102012/20120210-Preventive-Services-Bulletin.pdf (last visited Oct. 31, 2012).
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4. The organization self-certifies that it satisfies criteria 1-3 above, and documents its self-certification in accordance with the procedures detailed herein.”
HHS, Guidance on the Temporary Enforcement Safe Harbor, http://cciio.cms.gov/resources/files /Files2/02102012/20120210-Preventive-Services-Bulletin.pdf (last visited Oct. 31, 2012).11
160. On March 21, 2012, Defendants issued an Advanced Notice of Proposed Rulemaking” (“Advanced Notice”) stating their intentions to propose certain amendments to the Mandate. 77 Fed. Reg. 16501 (March 21, 2012).
161. In the Advanced Notice, Defendants stated an intention to “accommodate” some religious non-profit employers not defined as “religious employers” by Defendants by requiring compliance with the mandate by means of requiring those employers’ insurers to offer the employer’s employees the coverage required by the Mandate for at no cost. See 77 Fed. Reg. at 16503.
162. The Advanced Notice is neither a rule, a proposed rule, nor the specification of what a rule proposed in the future would actually contain. It in no way changes or alters the final status of the Mandate. It does not even create a legal requirement that Defendants change the Mandate at some time in the future.
163. The ACA creates a system of individualized exemptions. 164. The ACA grants HHS the authority to grant compliance waivers, which exempt certain entities from complying with certain provisions of the ACA, including the requirement that employers provide health care coverage.
11 On August 15, 2012, Defendants issued a revised Guidance, clarifying certain criteria with respect to the Temporary Enforcement Safe Harbor. HHS, Revised Guidance on the Temporary Enforcement Safe Harbor at 1 n.1, http://cciio.cms.gov/resources/files/prev-services-guidance08152012.pdf (last visited Oct. 16, 2012).
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165. Employers who are exempt from providing health care coverage are exempt from complying with the Mandate.
166. Upon information and belief, HHS has granted over 1,000 compliance waivers. 167. HHS has granted compliance waivers to for-profit businesses, unions and other organizations for purely secular reasons, but has not exempted Plaintiffs despite their sincere religious objections. 168. The ACA is not generally applicable because it provides numerous exemptions from its rules and applicability. 169. The ACA is not neutral because some organizations and individuals, both secular and religious, are exempt from complying with certain provisions it, including the Mandate. 170. The ACA is not neutral because some organizations and individuals, both secular and religious, have been granted compliance waivers, exempting them from complying with certain provisions of it, including the Mandate. Plaintiffs and the Mandate 171. The Mandate applies to any group health plan offered by the Plaintiffs. 172. 173. Plaintiffs do not qualify for any of the exemptions to the ACA. 174. Plaintiffs do not qualify for an individual exemption under 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) as Plaintiffs do not object to acceptance of public or private insurance funds in their totality. 175. Plaintiffs do not qualify as exempt “religious employers” under 45 CFR § 147.130(a)(1)(iv)(A)-(B).
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176. Plaintiffs are not “religious” enough under Defendants’ definition of “religious employer” in several respects, including but not limited to because they have purposes other than the “inculcation of religious values,” they do not primarily hire or serve Catholics, and because Plaintiffs current and future businesses are not churches, integrated auxiliaries of particular churches, convention or association of churches, or the exclusively religious activities of a religious order.
177. Because Plaintiffs do not qualify for the “religious employer” exemption, they are not permitted to take advantage of the “temporary enforcement safe-harbor” as set forth by the Defendants at 77 Fed. Register 8725 and the contemporaneously-issued Guidance.
178. The Mandate requires that Plaintiffs finance coverage for and facilitate access to contraception, sterilization, abortifacient drugs and related education and counseling against their conscience and in violation of their religious beliefs, in a manner that is contrary to law.
179. The Mandate constitutes government-imposed coercion on Plaintiffs to change or violate their sincerely held religious beliefs.
180. The Mandate exposes Plaintiffs to substantial fines for refusal to change or violate their religious beliefs.
181. Pursuant to the Mandate, all insurance issuers must provide coverage for contraception, sterilization, abortion and abortifacient drugs and related counseling services in all group health plans.
182. Defendants have stripped Plaintiffs of any choice to select a group health plan that excludes coverage for these drugs, devices, and services.
183. Plaintiffs are forced to select and pay for a group health plan that includes Mandate-compliant coverage in violation of their religious beliefs.
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184. 185. The Mandate places Plaintiffs at a competitive disadvantage in their efforts to recruit and retain employees, in that they are no longer permitted to offer a group health plan. 186. The Mandate makes it difficult for Plaintiffs to attract quality employees because of uncertainty about health insurance benefits. 187. The Mandate prevents Plaintiffs from receiving a tax credit available to small businesses who offer group health insurance plans. 26 U.S.C. § 45R. 188. The Mandate prevents Plaintiffs from exercising their religiously-held duty to provide for the health and welfare of their current and future employees by providing them a group health plan. 189. Plaintiffs have a sincere conscientious religious objection to funding coverage for and facilitating access to contraception, sterilization, abortifacient drugs and related education and counseling. 190. The Mandate directly punishes, with substantial fines and penalties, Plaintiffs’ exercise of their religious beliefs against providing insurance coverage for the above items. 191. The Mandate unconstitutionally coerces Plaintiffs to violate their deeply-held religious beliefs under threat of these fines and penalties. 192. The Mandate requires Plaintiffs to pay these fines and penalties or exit the insurance market entirely in order to exercise their religious beliefs. 193. The Mandate imposes substantial burdens on Plaintiffs’ exercise of their sincerely-held religious beliefs. 194. The Mandate also unconstitutionally forces Plaintiffs to fund government-dictated speech that directly contradicts their own speech and religious beliefs.
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195. The Mandate fails to protect the statutory and constitutional conscience rights of religious Americans like Plaintiffs even though those rights were repeatedly raised in the public comments submitted directly to Defendants.
196. Plaintiffs bring this action to enjoin Defendants’ violations of Plaintiffs statutory and constitutional rights and to permit Plaintiffs to operate their current and future businesses in a manner consistent with and not in violation of their sincerely-held religious beliefs.
197. Plaintiffs have no adequate remedy at law.
Claims for Relief
COUNT I Violation of the Religious Freedom Restoration Act
42 U.S.C. § 2000bb 198. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this complaint as though fully set forth herein. 199. Plaintiffs’ sincerely-held religious beliefs prohibit them from purchasing or providing coverage for contraception, sterilization, abortifacient drugs and related education and counseling in their employee group health plan. 200. When Plaintiffs adhere to Catholic teaching with regard to contraception, sterilization, abortion, abortifacient drugs and related education and counseling, they exercise religion within the meaning of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb (“RFRA”). 201. The Mandate coerces Plaintiffs to change or violate their sincerely-held religious beliefs. 202. The Mandate chills Plaintiffs’ religious exercise.
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203. The Mandate imposes substantial fines and penalties on Plaintiffs for exercising their religious beliefs.
204. Plaintiffs’ sincerely-held religious beliefs compel them to provide for the physical health of their employees.
205. When Plaintiffs offer of a group health plan to their employees it is an exercise of their religious beliefs within the meaning of RFRA.
206. The Mandate coerces Plaintiffs to violate their sincerely-held religious beliefs, in that the Mandate coerces Plaintiffs to terminate their employee group health plan.
207. The Mandate exposes Plaintiffs to significant competitive disadvantages, in that they will no longer be able to offer an employee group health plan.
208. The Mandate imposes a substantial burden on Plaintiffs’ exercise of their religion. 209. The Mandate furthers no compelling government interest. 210. The Mandate is not narrowly tailored to any compelling government interest. 211. The Mandate is not the least restrictive means of furthering Defendants’ alleged interests.
COUNT II Violation of the Free Exercise Clause of the First Amendment to the United States Constitution 212. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this complaint as though fully set forth herein. 213. Plaintiffs’ sincerely-held religious beliefs prohibit them from purchasing or providing coverage for contraception, sterilization, abortifacient drugs and related education and counseling in their employee group health plan.
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214. When Plaintiffs adhere to Catholic teaching with regard to contraception, sterilization, abortion, abortifacient drugs and related education and counseling, they exercise religion within the meaning of the Free Exercise of the First Amendment.
215. The Mandate is not neutral and is not generally applicable. 216. Defendants have created categorical and individualized exemptions to the Mandate. 217. The Mandate furthers no compelling governmental interest. 218. The Mandate is not the least restrictive means of furthering Defendants’ alleged interests. 219. The Mandate coerces Plaintiffs to change or violate their sincerely-held religious beliefs. 220. The Mandate chills Plaintiffs’ religious exercise. 221. The Mandate imposes substantial fines and penalties on Plaintiffs for exercising their religious beliefs. 222. Plaintiffs’ sincerely-held religious beliefs compel them to provide for the physical health of their employees. 223. When Plaintiffs offer a group health plan to their employees it is an exercise of their religious beliefs within the meaning of the Free Exercise Clause. 224. The Mandate coerces Plaintiffs to violate their sincerely-held religious beliefs, in that the Mandate coerces Plaintiffs to terminate their employee group health plan. 225. The Mandate exposes Plaintiffs to significant competitive disadvantages, in that they will no longer be able to offer an employee group health plan. 226. The Mandate imposes a substantial burden on Plaintiffs’ exercise of their religion.
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227. The Mandate is designed to apply to some religious Americans but not to others, which results in discrimination among religions.
228. The Mandate permits HRSA unlimited discretion to decide to exempt some, all, or no organizations meeting the Defendants’ definition of “religious employers.”
229. Defendants have created exemptions to the Mandate for some religious believers but not others based on characteristics of their beliefs and the manner in which they exercise them.
230. Despite having prior detailed knowledge of the kind of religious objections contained in this complaint, Defendants designed the Mandate and the religious exemption to the Mandate in a way that made it impossible for Plaintiffs and other similarly situation to comply with their religious beliefs.
231. Defendants promulgated both the Mandate and the religious exemptions thereto with the purpose and intent to suppress the religious exercise of Plaintiffs and others similarly situated.
232. The Mandate violates Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution.
COUNT III Violation of the Establishment Clause of the First Amendment to the United States Constitution 233. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this complaint as though fully set forth herein. 234. The First Amendment’s Establishment Clause prohibits the establishment of any religion as well as excessive government entanglement with religion. 235. The Establishment Clause requires government neutrality in matters of religion.
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236. The Mandate requires Defendants to examine the religious beliefs and teachings of Plaintiffs, and other like them, to determine whether religious persons or entities must comply with the Mandate or whether they are exempt from compliance.
237. Such examination requires continuous surveillance of the religious exercise of Plaintiffs and other similarly situated, leading to an impermissible degree of entanglement in violation of the Establishment Clause.
238. The Mandate discriminates among religions and among denominations, favoring some over others, and exhibits hostility to religious beliefs.
239. The Mandate establishes which individuals and entities are sufficiently religious to warrant exemption from the requirements of the ACA and the Mandate.
240. The Mandate adopts a particular theological view of what is acceptable moral complicity in provision of abortifacient, contraceptive and sterilization coverage and imposes it upon all religionists who must either conform their consciences or suffer penalty.
241. The Mandate violates Plaintiffs’ rights secured to them by the Establishment Clause of the First Amendment of the United States Constitution.
COUNT IV Violation of the Free Speech Clause of the First Amendment to the United States Constitution 242. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this complaint as though fully set forth herein. 243. A business’s conduct and speech relating to the provision of employee health insurance is “speech” protected by the Free Speech Clause. 244. The Mandate’s requirement that all group health plans provide coverage for education and counsel related to contraceptives, sterilization, and abortifacient drugs forces
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Plaintiffs’ to subsidize speech and expressive conduct that is directly contrary to their religious beliefs.
245. The Mandate furthers no compelling governmental interest. 246. The Mandate is not narrowly tailored to any compelling governmental interest 247. The Mandate violates Plaintiffs’ rights secured to them by the Free Speech Clause of the First Amendment of the United States Constitution.
COUNT V Violation of the Administrative Procedures Act 248. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this complaint as though fully set forth herein. 249. Because they did not give proper notice and an opportunity for public comment when they promulgated the “preventive care” guidelines, Defendants did not take into account the full implications of the regulations by completing a meaningful consideration of the relevant matter presented. 250. Defendants did not consider or respond to the voluminous comments they received in opposition to the August 1, 2102 interim final rule. 251. Therefore, Defendants have taken agency action not in accordance with procedures required by law, and Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(D). 252. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the Mandate on Plaintiffs and similar persons. 253. Defendants’ decision to not exempt Plaintiffs and similar organizations is contrary to the evidence submitted during the comment period.
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254. Defendants’ issuance of the Mandate was thus arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because Defendants failed to consider the full extent of the Mandate’s implications and they did not take into consideration the evidence against it.
255. The Mandate is also contrary to existing law and is thus in violation of the APA under 5 U.S.C. § 706(2)(A).
256. The Mandate violates RFRA and the First Amendment to the United States Constitution.
257. Some drugs included as “FDA-approved contraceptives,” under the Mandate, such as Ella, can cause abortions by causing the demise of human embryos before and/or after implantation. Therefore, the Mandate is contrary to Section 1303(b)(1)(A) of the ACA which provides that “nothing in this title” . . . “shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.” 42 U.S.C. § 18023(b)(1)(A)(i).
258. WHEREFORE, the Plaintiffs pray for the relief set forth below.
Prayer for Relief
Plaintiffs respectfully request the following relief: 1. Plaintiffs request a jury trial on the claims presented herein; 2. Declare that the Mandate and its application to Plaintiffs and other similarly situated violate the Religious Freedom Restoration Act; 3. Declare that the Mandate and its application to Plaintiffs and other similarly situated violate various Clauses of the First Amendment to the United States Constitution; 4. Declare that the Mandate and its application to Plaintiffs and other similarly situated violate the Administrative Procedures Act;
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5. Issue a permanent injunction prohibiting Defendants from enforcing the Mandate against
Plaintiffs and others with religious objections to providing group health insurance that
includes coverage for all FDA-approved contraceptive methods, sterilization procedures,
and patient education and counseling for the same.
6. Declare that an insurance issuer that offers a group plan to Plaintiffs and others similarly
situated that excludes the coverage required by the Mandate does not violate the ACA or
the Mandate.
7. Award Plaintiffs costs and reasonable attorney fees;
8. Award such other relief as the court deems just.
Respectfully submitted this 18th day of August, 2015.
Erick Kaardal (Minn. 229647) Mohrman Kaardal, and Erickson, P.A. 150 S. Fifth St., Ste. 3100 Minneapolis MN 55402 Telephone: (612) 341-1074 Facsimile: (612) 341-1076 kaardal@mklaw.com Lead Counsel for Plaintiffs
/s/ Kaylan L. Phillips Kaylan L. Phillips (Ind. 30405-84)* Noel H. Johnson (Wisc. 1068004)* Public Interest Legal Foundation 209 West Main Street Plainfield, Indiana 46168 Telephone (202) 683-9405 Facsimile (888) 815-5641 kphillips@publicinterestlegal.org njohnson@publicinterestlegal.org Counsel for Plaintiffs
*Pro Hac Vice applications granted
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 CLOSED,CV,PHV,STAYED
U.S. District Court U.S. District of Minnesota (DMN) CIVIL DOCKET FOR CASE #: 0:12−cv−02804−DSD−SER

Annex Medical, Inc. et al v. Solis et al Assigned to: Senior Judge David S. Doty Referred to: Magistrate Judge Steven E. Rau Case in other court: USCA 8th Circuit, 13−01118 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 11/02/2012 Date Terminated: 08/19/2015 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Annex Medical, Inc.

represented by Erick G Kaardal Mohrman, Kaardal & Erickson, P.A. 150 South Fifth Street Suite 3100 Mpls, MN 55402 612−465−0927 Fax: 612−341−1076 Email: kaardal@mklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kaylan L Phillips Public Interest Legal Foundation 209 West Main Street Plainfield, IN 46168 202−683−9405 Email: kphillips@publicinterestlegal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Noel H. Johnson ActRight Legal Foundation 209 West Main Street Plainfield, IN 46168 202−683−9405 Email: njohnson@actright.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Zac S. Kester ActRight Legal Foundation 209 West Main Street Plainfield, IN 46168 202−683−9405 Email: zkester@actright.com TERMINATED: 11/25/2013 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Stuart Lind

represented by Erick G Kaardal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kaylan L Phillips (See above for address) LEAD ATTORNEY

Plaintiff Tom Janas
Plaintiff Armor, Inc. also known as Storms Welding & Manufacturing
V. Defendant Kathleen Sebelius in her official capacity as Secretary of the United States Department of Health and Human Services TERMINATED: 08/18/2015

PRO HAC VICE ATTORNEY TO BE NOTICED
Noel H. Johnson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Zac S. Kester (See above for address) TERMINATED: 11/25/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Erick G Kaardal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaylan L Phillips (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Noel H. Johnson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Zac S. Kester (See above for address) TERMINATED: 11/25/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kaylan L Phillips (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Noel H. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ann M Bildtsen United States Attorney's Office 300 S 4th St Ste 600 Minneapolis, MN 55415 612−664−5615 Fax: 612−664−5788 Email: ann.bildtsen@usdoj.gov LEAD ATTORNEY

Defendant Hilda Solis in her official capacity as Secretary of the United States Department of Labor TERMINATED: 08/18/2015
Defendant Timothy Geithner in his official capacity as Secretary of the United States Department of Treasury TERMINATED: 08/18/2015

ATTORNEY TO BE NOTICED
Benjamin Leon Berwick United States Department of Justice 20 Massachusetts Ave., N.W. Washington, DC 20530 202−305−8573 Email: Benjamin.L.Berwick@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bradley Philip Humphreys United States Department of Justice 20 Massachusetts Avenue NW Washington, DC 20530 202−514−3367 Email: Bradley.p.humphreys@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Renee Bennett U.S. Dept. of Justice 20 Massachusetts Ave. N.W. Washington, DC 20530 202−305−8902 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ann M Bildtsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Leon Berwick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bradley Philip Humphreys (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Renee Bennett (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ann M Bildtsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Leon Berwick (See above for address)

Defendant United States Department of Health and Human Services
Defendant United States Department of Labor

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bradley Philip Humphreys (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Renee Bennett (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ann M Bildtsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Leon Berwick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bradley Philip Humphreys (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Renee Bennett (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ann M Bildtsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Leon Berwick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bradley Philip Humphreys (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Renee Bennett (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant United States Department of the Treasury
Defendant Sylvia Burwell in her official capacity as Secretary of the United Staes Department of Health and Human Services
Defendant Thomas E. Perez in his official capacity as Secretary of the United States Department of Labor

represented by Ann M Bildtsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Leon Berwick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bradley Philip Humphreys (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Renee Bennett (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ann M Bildtsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Leon Berwick 202−305−8573 Email: Benjamin.L.Berwick@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bradley Philip Humphreys (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Renee Bennett (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ann M Bildtsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Leon Berwick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bradley Philip Humphreys

Defendant Jacob J. Lew in his official capacity as Secretary of the Treasury
Amicus American Civil Liberties Union of Minnesota

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Renee Bennett (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ann M Bildtsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Leon Berwick (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bradley Philip Humphreys (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Renee Bennett (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Brigitte Amiri American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004 212−549−2633 Email: bamiri@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Haley N Schaffer Maslon LLP 90 S 7th St Ste 3300 Mpls, MN 55402 (612) 672−8391 Fax: (612) 642−8391 Email: haley.schaffer@maslon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Teresa J Nelson ACLU of Minnesota 2300 Myrtle Ave. Suite 180 St Paul, MN 55114 651−645−4097 ext 122 Fax: 651−647−5948 Email: tnelson@aclu−mn.org

Amicus American Civil Liberties Union

LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Z Pentelovitch Maslon LLP 90 S 7th St Ste 3300 Mpls, MN 55402 (612) 672−8200 Fax: (612) 642−8338 Email: bill.pentelovitch@maslon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brigitte Amiri (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Haley N Schaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Teresa J Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Z Pentelovitch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/02/2012
11/02/2012 11/12/2012 11/12/2012 11/12/2012 11/13/2012

# Docket Text
1 COMPLAINT against Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury ( Filing fee $ 350 receipt number 4068965.) assigned to Judge David S. Doty per Civil Rights Other referred to Magistrate Judge Steven E. Rau, filed by Stuart Lind, Annex Medical, Inc., Tom Janas. (Attachments: # 1 Civil Cover Sheet) (jz) (Entered: 11/02/2012)
Summons Issued as to Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, U.S. Attorney and U.S. Attorney General. (jz) (Entered: 11/05/2012)
2 MOTION for Admission Pro Hac Vice for Kaylan L. Phillips. Filing fee $ 100, receipt number 0864−3355330 by Annex Medical, Inc., Tom Janas, Stuart Lind. (Kaardal, Erick) (Entered: 11/12/2012)
3 MOTION for Admission Pro Hac Vice for Zac S. Kester. Filing fee $ 100, receipt number 0864−3355334 by Annex Medical, Inc., Tom Janas, Stuart Lind. (Kaardal, Erick) (Entered: 11/12/2012)
4 MOTION for Admission Pro Hac Vice for Noel H. Johnson. Filing fee $ 100, receipt number 0864−3355337 by Annex Medical, Inc., Tom Janas, Stuart Lind. (Kaardal, Erick) (Entered: 11/12/2012)
5 RULE 7.1 DISCLOSURE STATEMENT. There is no parent corporation, publicly held corporation or wholly−owned subsidiary to report for Plaintiffs Annex Medical, Inc., Tom Janas, Stuart Lind. (Kaardal, Erick) (Entered: 11/13/2012)

11/14/2012
11/15/2012 11/21/2012 11/21/2012 11/21/2012 11/21/2012 11/21/2012 11/21/2012 11/23/2012 11/27/2012 11/27/2012
12/10/2012
12/10/2012 12/12/2012 12/14/2012

TEXT ONLY ENTRY−ORDER granting 2 3 4 Motions for Admission Pro Hac Vice of Attorneys Kaylan L Phillips,Zac S. Kester,Noel H. Johnson for Annex Medical, Inc.,Tom Janas,Stuart Lind. Fees paid; receipt numbers 0864−3355330, 0864−3355334, 0864−3355337. Approved by Magistrate Judge Steven E. Rau on 11/14/2012. (MAP) (Entered: 11/14/2012)
6 ORDER In Re Dispositive−Motion Practice. Signed by Senior Judge David S. Doty on 11/15/2012. (CLB) (Entered: 11/15/2012)
7 MOTION for Preliminary Injunction by Annex Medical, Inc., Tom Janas, Stuart Lind. (Kaardal, Erick) (Entered: 11/21/2012)
8 NOTICE OF HEARING ON MOTION 7 MOTION for Preliminary Injunction : Motion Hearing set for 1/4/2013 09:00 AM in Courtroom 14W (MPLS) before Senior Judge David S. Doty. (Kaardal, Erick) (Entered: 11/21/2012)
9 MEMORANDUM in Support re 7 MOTION for Preliminary Injunction filed by Annex Medical, Inc., Tom Janas, Stuart Lind. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Kaardal, Erick) (Entered: 11/21/2012)
10 Declaration of Father John Echert in Support of 7 MOTION for Preliminary Injunction filed by Annex Medical, Inc., Tom Janas, Stuart Lind. (Kaardal, Erick) (Entered: 11/21/2012)
11 Declaration of Stuart Lind in Support of 7 MOTION for Preliminary Injunction filed by Annex Medical, Inc., Tom Janas, Stuart Lind. (Kaardal, Erick) (Entered: 11/21/2012)
12 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Annex Medical, Inc., Tom Janas, Stuart Lind re 7 MOTION for Preliminary Injunction (Kaardal, Erick) (Entered: 11/21/2012)
13 EXHIBITS A1−A2 re 11 Declaration in Support Stuart Lind Declaration Exhibits filed by All Plaintiffs. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D)(Kaardal, Erick) Modified text on 11/26/2012 (MMP). (Entered: 11/23/2012)
14 MOTION for Admission Pro Hac Vice for Bradley Philip Humphreys by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor. (Bildtsen, Ann) (Entered: 11/27/2012)
TEXT ONLY ENTRY−ORDER granting 14 Motion for Admission of U.S. Government Attorney Bradley Philip Humphreys for Timothy Geithner,Kathleen Sebelius, Hilda Solis,United States Department of Health and Human Services,United States Department of Labor. Fee waived. Approved by Magistrate Judge Steven E. Rau on 11/27/2012. (MAP) (Entered: 11/27/2012)
15 SUMMONS Returned Executed by Stuart Lind, Annex Medical, Inc., Tom Janas. Timothy Geithner served on 11/7/2012, answer due 01/07/2013; Kathleen Sebelius served on 11/7/2012, answer due 01/07/2013; Hilda Solis served on 11/7/2012, answer due 01/07/2013; United States Department of Health and Human Services served on 11/7/2012, answer due 01/07/2013; United States Department of Labor served on 11/7/2012, answer due 01/07/2013; United States Department of the Treasury served on 11/7/2012, answer due 01/07/2013. (Kaardal, Erick) Modified on 12/12/2012 (TSS). (Entered: 12/10/2012)
16 ORDER setting procedures and filing deadlines re parties seeking to file an amicus brief on the issue of whether the court should enter a preliminary injunction.(Written Opinion). Signed by Senior Judge David S. Doty on 12/10/2012. (PJM) (Entered: 12/10/2012)
17 RESPONSE in Opposition re 7 MOTION for Preliminary Injunction filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Humphreys, Bradley) (Entered: 12/12/2012)
18 NOTICE of Appearance by Haley N Schaffer on behalf of American Civil Liberties Union of Minnesota, American Civil Liberties Union. (Schaffer, Haley) (Entered: 12/14/2012)

12/14/2012 12/14/2012 12/14/2012 12/14/2012 12/14/2012
12/14/2012
12/14/2012 12/20/2012 12/21/2012 12/21/2012 12/21/2012 12/21/2012

19 NOTICE of Appearance by William Z Pentelovitch on behalf of American Civil Liberties Union, American Civil Liberties Union of Minnesota. (Pentelovitch, William) (Entered: 12/14/2012)
20 MOTION to Appear as Amicus Curiae , MOTION Leave to File Amicus Curiae Brief and Leave to Appear and Be Heard at Oral Argument by American Civil Liberties Union, American Civil Liberties Union of Minnesota. (Schaffer, Haley) (Entered: 12/14/2012)
21 NOTICE OF MOTION by American Civil Liberties Union, American Civil Liberties Union of Minnesota re 20 MOTION to Appear as Amicus Curiae MOTION Leave to File Amicus Curiae Brief and Leave to Appear and Be Heard at Oral Argument. Date and time of hearing to be determined. (Schaffer, Haley) Modified text on 12/17/2012 (MMP). (Entered: 12/14/2012)
22 MEMORANDUM in Support re 20 MOTION to Appear as Amicus Curiae MOTION Leave to File Amicus Curiae Brief and Leave to Appear and Be Heard at Oral Argument filed by American Civil Liberties Union, American Civil Liberties Union of Minnesota. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Schaffer, Haley) (Entered: 12/14/2012)
23 AFFIDAVIT of Haley N. Schaffer in SUPPORT OF 20 MOTION to Appear as Amicus Curiae MOTION Leave to File Amicus Curiae Brief and Leave to Appear and Be Heard at Oral Argument filed by American Civil Liberties Union, American Civil Liberties Union of Minnesota. (Attachments: # 1 Exhibit(s) A, (2) COMPLIANCE CERTIFICATE RELATING TO AMICUS CURIAE BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION AND THE AMERICAN CIVIL LIBERTIES UNION OF MINNESOTA IN OPPOSITION TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION(Schaffer, Haley) Modified text on 12/17/2012 (MMP). Modified text on 12/19/2012 (MMP). (Entered: 12/14/2012)
24 TEXT ONLY ENTRY: Notice re: Non−Admitted Attorney
We have received documents listing Brigitte Amiri as counsel of record. If he or she wishes to be listed as an attorney of record in this case, he or she must be admitted to the bar of the U.S. District Court of Minnesota in accordance with Local Rule 83.5 (a), (b) and (c) or temporarily admitted pro hac vice in accordance with Local Rule 83.5 (d) or (e).
For more admissions information and forms, please see the Attorney Forms Section of the courts website at href=http://www.mnd.uscourts.gov/FORMS/court_forms.shtml#attorneyforms. (MMP) (Entered: 12/14/2012)
25 MOTION for Admission Pro Hac Vice for Brigitte Amiri. Filing fee $ 100, receipt number 0864−3389140 by American Civil Liberties Union, American Civil Liberties Union of Minnesota. (Attachments: # 1 Certificate of Service)(Nelson, Teresa) (Entered: 12/14/2012)
TEXT ONLY ENTRY−ORDER granting 25 Motion for Admission Pro Hac Vice of Attorney Brigitte Amiri for American Civil Liberties Union,American Civil Liberties Union of Minnesota. Fee paid; receipt number 0864−3389140. Approved by Magistrate Judge Steven E. Rau on 12/20/2012. (MAP) (Entered: 12/20/2012)
26 REPLY re 7 MOTION for Preliminary Injunction Reply Memorandum in Support of Motion for Preliminary Injunction filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Kaardal, Erick) (Entered: 12/21/2012)
27 Supplemental Declaration of Stuart Lind in Support of 26 Reply filed by All Plaintiffs. (Kaardal, Erick) (Entered: 12/21/2012)
28 Declaration of Erick G. Kaardal in Support of 26 Reply filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) A)(Kaardal, Erick) (Entered: 12/21/2012)
29 MEMORANDUM in Opposition re 20 MOTION to Appear as Amicus Curiae MOTION Leave to File Amicus Curiae Brief and Leave to Appear and Be Heard at Oral Argument filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count

12/21/2012 12/27/2012 12/28/2012
01/04/2013
01/04/2013
01/04/2013 01/07/2013
01/08/2013 01/08/2013 01/11/2013 01/11/2013 01/11/2013 01/11/2013

Compliance Certificate)(Kaardal, Erick) (Entered: 12/21/2012)
30 DECLARATION of Erick G. Kaardal in Opposition to 20 MOTION to Appear as Amicus Curiae MOTION Leave to File Amicus Curiae Brief and Leave to Appear and Be Heard at Oral Argument filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B)(Kaardal, Erick) (Entered: 12/21/2012)
31 ORDER granting in part 20 Motion to Appear as Amicus Curiae (Written Opinion). Signed by Senior Judge David S. Doty on 12/27/2012. (PJM) (Entered: 12/27/2012)
32 NOTICE OF SUPPLEMENTAL AUTHORITY by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 7 MOTION for Preliminary Injunction of Supplemental Authority WITH ATTACHED CERTIFICATE OF SERVICE (Attachments: # 1 Exhibit(s) Hobby Lobby Stores, Inc. v. Sebelius − 10th Cir. Order, # 2 Exhibit(s) Hobby Lobby Stores, Inc. v. Sebelius − Justice Sotomayor In Chambers Decision, # 3 Exhibit(s) Autocam Corp. v. Sebelius − Opinion and Order Denying Mot. for Prelim. Inj., # 4 Exhibit(s) Grote Indus., Inc. v. Sebelius − Order Denying Mot. for Prelim. Inj.)(Humphreys, Bradley) Modified text on 12/28/2012 (MMP). Modified on 12/28/2012 (MMP). (Entered: 12/28/2012)
33 TEXT ONLY ENTRY − Minute Entry for proceedings held before Senior Judge David S. Doty: Appearances: Erick Kaardal for plaintiffs; Bradley Humphreys for Sebelius; William Pentelovitch for American Civil Liberties Union. Motion Hearing held on 1/4/2013 re 7 MOTION for Preliminary Injunction filed by Stuart Lind, Annex Medical, Inc. & Tom Janas − argued and taken under advisement. Order forthcoming. (Court Reporter Staci Heichert) (CLB) (Entered: 01/04/2013)
34 First MOTION for Extension of Time to File Answer re 1 Complaint, by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Attachment Filed in Error−LR7.1/LR72.2 Word Count Compliance Certificate, # 2 Attachment Filed in Error−Exhibit(s) Proposed Order)(Humphreys, Bradley) Modified text on 1/8/2013 (jz). (Entered: 01/04/2013)
35 NOTICE OF HEARING ON MOTION 34 First MOTION for Extension of Time to File Answer re 1 Complaint, : at date and time to be determined. (Humphreys, Bradley) (Entered: 01/04/2013)
36 MEET and CONFER STATEMENT re 34 Motion for Extension of Time to File Answer, filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Humphreys, Bradley) (Entered: 01/07/2013)
37 ORDER denying 7 Motion for Preliminary Injunction (Written Opinion). Signed by Senior Judge David S. Doty on 1/8/2013. (PJM) (Entered: 01/08/2013)
38 JUDGMENT (Attachments: # 1 Civil Notice − appeal)(jz) (Entered: 01/08/2013)
39 NOTICE OF APPEAL TO 8TH CIRCUIT as to 37 Order on Motion for Preliminary Injunction, 38 Judgment by Annex Medical, Inc., Tom Janas, Stuart Lind. Filing fee $ 455, receipt number 0864−3410911. (Kaardal, Erick) (Entered: 01/11/2013)
40 DOCUMENT FILED IN ERROR−Emergency MOTION for Preliminary Injunction Pending Appeal − Expedited Handling Requested by Annex Medical, Inc., Tom Janas, Stuart Lind. (Kaardal, Erick) Modified text on 1/11/2013 (jz). (Entered: 01/11/2013)
41 NOTICE OF HEARING ON MOTION 45 Emergency MOTION for Preliminary Injunction Pending Appeal − Expedited Handling Requested : at date and time to be determined. (Kaardal, Erick) Modified on 1/14/2013 (jz). (Entered: 01/11/2013)
42 MEMORANDUM in Support re 45 Emergency MOTION for Preliminary Injunction Pending Appeal − Expedited Handling Requested filed by Annex Medical, Inc., Tom Janas, Stuart Lind. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Kaardal, Erick) Modified on 1/14/2013 (jz). (Entered: 01/11/2013)

01/11/2013 01/14/2013 01/14/2013 01/14/2013 01/14/2013 01/15/2013
01/15/2013
01/16/2013 01/17/2013 01/24/2013
01/24/2013 01/25/2013 02/01/2013 02/08/2013 02/08/2013

43 Declaration of Erick G. Kaardal in Support of 45 Emergency MOTION for Preliminary Injunction Pending Appeal − Expedited Handling Requested filed by Annex Medical, Inc., Tom Janas, Stuart Lind. (Attachments: # 1 Exhibit(s) A)(Kaardal, Erick) Modified on 1/14/2013 (jz). (Entered: 01/11/2013)
44 TRANSMITTAL OF APPEAL LETTER TO U. S. COURT OF APPEALS, 8TH CIRCUIT, Re: Notice of Appeal to 8th Circuit 39 . (jz) (Entered: 01/14/2013)
45 MOTION for Preliminary Injunction Pending Appeal (title correction) − Expedited Handling Requested by Annex Medical, Inc., Tom Janas, Stuart Lind. (Kaardal, Erick) (Entered: 01/14/2013)
NOTICE to USCA of subsequent filing in a civil case, Re: Motion for Preliminary Injunction 45 . (jz) (Entered: 01/14/2013)
46 USCA Case Number 13−1118 for 39 Notice of Appeal to 8th Circuit filed by Stuart Lind, Annex Medical, Inc., Tom Janas. (akl) (Entered: 01/15/2013)
47 MEMORANDUM in Opposition re 45 MOTION for Preliminary Injunction Pending Appeal (title correction) − Expedited Handling Requested filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Humphreys, Bradley) (Entered: 01/15/2013)
48 Declaration of Bradley P. Humphreys in Support of 47 Memorandum in Opposition to Motion, filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Exhibit(s) Conestoga Wood Specialties, Corp. v. Sebelius)(Humphreys, Bradley) (Entered: 01/15/2013)
49 REPLY re 45 MOTION for Preliminary Injunction Pending Appeal (title correction) − Expedited Handling Requested filed by Annex Medical, Inc., Tom Janas, Stuart Lind. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Kaardal, Erick) (Entered: 01/16/2013)
50 ORDER denying 45 Motion for Preliminary Injunction pending appeal(Written Opinion). Signed by Senior Judge David S. Doty on 1/17/2013. (PJM) (Entered: 01/17/2013)
51 Joint MOTION to Stay District Court Proceedings Pending Appeal by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: DOCUMENT FILED IN ERROR− # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Humphreys, Bradley) Modified TEXT on 1/25/2013 (MMP). (Entered: 01/24/2013)
52 NOTICE OF HEARING ON MOTION 51 Joint MOTION to Stay District Court Proceedings Pending Appeal : at date and time to be determined. (Humphreys, Bradley) (Entered: 01/24/2013)
53 ORDER granting 51 Motion to Stay. Signed by Senior Judge David S. Doty on 1/25/2013. (PJM) (Entered: 01/25/2013)
54 ORDER of USCA as to 39 Notice of Appeal to 8th Circuit filed by Stuart Lind, Annex Medical, Inc., Tom Janas : the appellants motion for a preliminary injunction pending appeal is granted. (received electronically from COA) (jam) (Entered: 02/01/2013)
55 NOTICE of Filing of Official Transcript. A total of 1 transcripts are associated with this filing. (SH) (Entered: 02/08/2013)
56 TRANSCRIPT of Motions Hearing held on 1/4/2013 before Senior Judge David S. Doty. (47 pages). Court Reporter: Staci Heichert (E−mail: Staci_Heichert@mnd.uscourts.gov. Telephone: (612) 664−5105). Redaction Request due 3/1/2013. Redacted Transcript Deadline set for 3/11/2013. Release of Transcript Restriction set for 5/9/2013. For information on redaction procedures, please review Local Rule 5.5. (SH) (Entered: 02/08/2013)

03/04/2013 11/22/2013 09/05/2014 09/05/2014
10/06/2014 10/06/2014 10/06/2014
12/04/2014 03/20/2015 03/23/2015
08/10/2015 08/10/2015
08/10/2015

57 ORDER of USCA as to 39 Notice of Appeal to 8th Circuit: Appellees' motion to consolidate this appeal with appeal No. 12−3357 is denied. (received electronically from COA) (akl) (Entered: 03/04/2013)
58 NOTICE of Withdrawal as Attorney Zachary S. Kester (Johnson, Noel) (Entered: 11/22/2013)
59 VACATED per Order 61 // Opinion of USCA as to 39 Notice of Appeal to 8th Circuit filed by Stuart Lind, Annex Medical, Inc., Tom Janas. (LPH) Modified text on 10/9/2014 (LPH). (Entered: 09/05/2014)
60 VACATED per Order 61 // USCA JUDGMENT as to 39 Notice of Appeal to 8th Circuit filed by Stuart Lind, Annex Medical, Inc., Tom Janas. After consideration, it is hereby ordered and adjudged that the appeal of Tom Janas is dismissed. As to the remaining parties, the judgment of the district court in this cause is vacated and the cause is remanded to the district court for proceedings consistent with the opinion of this court. (received electronically from COA) (LPH) Modified text on 10/9/2014 (LPH). (Entered: 09/05/2014)
61 ORDER of USCA as to 39 Notice of Appeal to 8th Circuit filed by Stuart Lind, Annex Medical, Inc., Tom Janas. Appellants' petition for rehearing by the panel has been considered by the Court and is granted. The opinion and judgment of this Court filed on September 5, 2014, are vacated. (received electronically from COA) (LPH) (Entered: 10/08/2014)
62 Opinion of USCA as to 39 Notice of Appeal to 8th Circuit filed by Stuart Lind, Annex Medical, Inc., Tom Janas. (LPH) (Entered: 10/08/2014)
63 USCA JUDGMENT as to 39 Notice of Appeal to 8th Circuit filed by Stuart Lind, Annex Medical, Inc., Tom Janas. After consideration, it is hereby ordered and adjudged that the appeal of Tom Janas is dismissed. As to the remaining parties, the judgment of the district court in this cause is vacated and the cause is remanded to the district court for proceedings consistent with the opinion of this court. (received electronically from COA) (LPH) (Entered: 10/08/2014)
64 MANDATE of USCA as to 39 Notice of Appeal to 8th Circuit filed by Stuart Lind, Annex Medical, Inc., Tom Janas. (received electronically from COA) (LPH) (Entered: 12/08/2014)
65 MOTION for Admission Pro Hac Vice for U.S. Government Attorney Benjamin L. Berwick by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bildtsen, Ann) (Entered: 03/20/2015)
66 TEXT ONLY ENTRY: ORDER granting 65 Motion for Admission Pro Hac Vice of U.S. Government Attorney Benjamin Leon Berwick for Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, and for United States Department of the Treasury. Approved by Magistrate Judge Steven E. Rau on 3/23/2015. (JLW) (Entered: 03/23/2015)
67 MOTION for Admission Pro Hac Vice for U.S. Government Attorney Michelle Renee Bennett by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (JGK) (Entered: 08/10/2015)
68 TEXT ONLY ENTRY: ORDER granting 67 Motion for Admission Pro Hac Vice of U.S. Government Attorney Michelle Renee Bennett for Timothy Geithner, Kathleen Sebelius, Hilda Solis, The United States Department of Health and Human Services, The United States Department of Labor, and for The United States Department of the Treasury. Approved by Magistrate Judge Steven E. Rau on 8/10/2015. (JLW) (Entered: 08/10/2015)
69 NOTICE of Appearance by Michelle Renee Bennett on behalf of Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 08/10/2015)

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10/09/2015 10/09/2015 10/13/2015

70 STIPULATION to File Amended Complaint by Annex Medical, Inc., Tom Janas, Stuart Lind. Jointly Signed by Sylvia Burwell, Thomas E. Perez, Jacob J. Lew, United States Department of Health and Human Services, United States Department of Labor, and United States Department of the Treasury. (Attachments: # 1 Exhibit(s) Amended Complaint, # 2 Exhibit(s) Amended Complaint − Redlines, # 3 Certificate of Service)(Johnson, Noel) Modified text on 8/17/2015 (LEG). (Entered: 08/14/2015)
71 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Annex Medical, Inc., Tom Janas, Stuart Lind re 70 Stipulation, (Johnson, Noel) (Entered: 08/14/2015)
72 ORDER Granting Stipulation to File Amended Complaint. Signed by Magistrate Judge Steven E. Rau on 8/18/2015. (las) (Entered: 08/18/2015)
73 AMENDED COMPLAINT against All Defendants. Filed by Stuart Lind, Annex Medical, Inc., Tom Janas, Armor, Inc. d/b/a Storms Welding & Manufacturing. No summons requested. (Phillips, Kaylan) (Entered: 08/18/2015)
74 Joint MOTION for Permanent Injunction and Entry of Judgment by Annex Medical, Inc., Armor, Inc. d/b/a Storms Welding & Manufacturing, Tom Janas, Stuart Lind. (Phillips, Kaylan) (Entered: 08/18/2015)
75 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Annex Medical, Inc., Armor, Inc. d/b/a Storms Welding & Manufacturing, Tom Janas, Stuart Lind re 74 Joint MOTION for Permanent Injunction and Entry of Judgment (Phillips, Kaylan) (Entered: 08/18/2015)
76 INJUNCTION AND JUDGMENT. Order granting 74 Motion for Permanent Injunction. Signed by Senior Judge David S. Doty on 8/19/2015. (DLO) Modified docket text on 8/20/2015 (TSS). (Entered: 08/19/2015)
77 DOCUMENT FILED IN ERROR−INCORRECT CASE NUMBER−WILL REFILE. Joint MOTION for Extension of Time to File Motion for Attorney's Fees, Costs and Expenses by Annex Medical, Inc., Armor, Inc., Tom Janas, Stuart Lind. (Attachments: # 1 Certificate of Service). (Johnson, Noel) Modified text on 10/9/2015 (lmb). (Entered: 10/09/2015)
78 Joint MOTION for Extension of Time to File Motion for Attorney's Fees, Costs and Expenses by Annex Medical, Inc., Armor, Inc., Tom Janas, Stuart Lind. (Johnson, Noel) (Entered: 10/09/2015)
79 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Annex Medical, Inc., Armor, Inc., Tom Janas, Stuart Lind re 78 Joint MOTION for Extension of Time to File Motion for Attorney's Fees, Costs and Expenses (Johnson, Noel) (Entered: 10/09/2015)
80 ORDER granting 78 Motion for Extension of Time Signed by Senior Judge David S. Doty on 10/13/2015. (DLO) (Entered: 10/13/2015)