CASE 0:13-cv-03148-JNE-FLN Document 1 Filed 11/14/13 Page 1 of 52

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

DOBOSZENSKI & SONS, INC. and DOUGLAS DOBOSZENSKI,

Civil File No. ___________

Plaintiffs,

vs

KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services and her successor; and the UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES;

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
JURY TRIAL DEMANDED

SETH D. HARRIS, in his official capacity as Acting Secretary of the United States Department of Labor and his successor; and the UNITED STATES DEPARTMENT OF LABOR;

JACOB LEW, in his official capacity as U.S. Secretary of the Treasury and his successor; and the UNITED STATES DEPARTMENT OF THE TREASURY, and

DANIEL I. WERFEL, in this official capacity as Acting Commissioner of Internal Revenue and his successor; and the INTERNAL REVENUE SERVICE,

Defendants.

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Verified Complaint for Declaratory and Injunctive Relief Plaintiff Douglas Doboszenski, (“Doboszenski”) and his company, Doboszenski & Sons, Inc. (“Company”), through their counsel, complain against the above-named Defendants (collectively “HHS”) as follows:
Introduction 1. In this action, Doboszenski and his privately-held Company challenge certain regulations adopted under the 2010 Patient Protection and Affordable Care Act (“Affordable Care Act”), Pub. L. No. 111-148, 124 Stat. 119. The regulations force certain religious persons who own and/or operate for-profit companies to include in their group health plans coverage for products and services that violate their religious beliefs under threat of substantial monetary fines and penalties. 2. Specifically, Doboszenski and his Company seek declaratory and injunctive relief from the operation of the final rules promulgated by the HHS, mandating that all group health plans, inclusive of self-insured 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 HHS Mandate”), see 45 CFR § 147.130 (a)(1)(iv), as confirmed at 77 Fed. Reg. 8725 (Feb. 15, 2012), adopting and quoting Health
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Resources and Services Administration Guidelines found at http://www.Health Resources Services.gov/womensguidelines.
3. Doboszenski owns 70% of the shares of the Company. Doboszenski is Roman Catholic. Doboszenski holds sincere religious beliefs based on the Roman Catholic Catechism which states “abortion willed as an end or as a means, is a ‘criminal’ practice” and which states “direct sterilization” and “contraception” are morally unacceptable. The Catechism also instructs that a person who deviates from its teachings is involved in a “public scandal.” As Catholic laypersons, Doboszenski must avoid public scandal.
4. The HHS Mandate to Doboszenski is sinful and immoral. Yet, the Mandate is coercing him and his Company to violate their religious beliefs and expose him or his Company or both to governmental imposition of substantial fines and penalties. As the deadline for the renewal of the Company’s group health plan arrives on December 1, 2013 (pending approval by Medica), Doboszenski, knows that he has a religious obligation to provide for his employees through health care plans, must now confront the federal coercion imposed upon him and violate the HHS Mandate.
5. As it presently stands, the HHS Mandate violates Doboszenski’s constitutionally protected rights of freedom of speech, freedom of religion, due process and equal protection. The Mandate further violates the Religious Freedom
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Restoration Act and the Administrative Procedures Act. Injunctive relief will, in the first instance, allow Doboszenski and his Company to continue providing for their employees with group health insurance without an HHS Mandate, avoid public scandal, and free him and the Company from governmental constitutional burdens that interfere with their religious beliefs. The injunction will permit Doboszenski and the Company to operate their current and future businesses in a manner consistent with and not in violation of their sincerely-held religious beliefs. Likewise, if Doboszenski and the Company fail to provide health coverage to his employees, the Internal Revenue Service may impose significant penalties upon the employees. Similarly, without health insurance coverage, the government places Doboszenski and the Company in a difficult position by causing him to harm his employees who have relied upon the Company’s insurance benefits because the employees in turn may be exposed to possible significant IRS penalties as well.
6. HHS’ actions violate Doboszenski’s and the Company’s right to freely exercise their religion, which are protected by the First Amendment and the Fifth Amendment of the United States Constitution and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”).
7. HHS’ actions in providing an exemption to religious non-profit employers, but not to for-profit business owners with the same religious objections,
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violate the Establishment Clause of the First Amendment to United States Constitution.
8. HHS’ actions also violate Doboszenski’ and the Company’s rights to freedom of speech, which are protected by the Free Speech Clause of the First Amendment to the United States Constitution.
9. Further, HHS’ actions violated the Administrative Procedures Act, 5 U.S.C. § 553, by adopting and imposing the HHS Mandate without prior notice or public comment.
10. Doboszenski and Company are currently being impermissibly coerced by the HHS Mandate and its substantial fines and penalties to violate their religious beliefs.
11. Doboszenski and Company will continue to be harmed unless this Court provides them their requested injunctive relief from HHS’s illegal and unconstitutional actions. This injunctive relief must include barring the IRS and all agencies from the imposition of fines and penalties against the Company, Doboszenski, and his employees.
Jurisdiction and Venue 12. 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, 1361 and 42 U.S.C. § 1983. This Court has jurisdiction to render declaratory and
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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.
13. Venue is appropriate in this district pursuant to 28 U.S.C. § 1391(e)(1) because the Plaintiffs reside within this district.
The Parties 14. Plaintiff Douglas Doboszenski is an individual and a citizen of the State of Minnesota. He is 70% owner of the Company and is President of the Company. He is a member of the parish of St. Peter and Paul in Loretto, Minnesota, and attends religious services there. 15. Plaintiff Doboszenski & Sons, Inc. (“Company”) is a Minnesota corporation owned by Doboszenski. The address of the Company’s corporate headquarters is 9520 County Road 19, Loretto, MN 55357. The Company is privately held. The Company is a construction company. 16. Defendant United States Department of Health and Human Services (“HHS”) is an agency of the United States. HHS is responsible for the administration and enforcement of the HHS Mandate. 17. Defendant Kathleen Sebelius is the Secretary of Health and Human Services. As Secretary. She is responsible for the operation and management of the HHS. She is sued in her official capacity only.
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18. Defendant United States Department of Labor is an agency of the United States government. The Department of Labor is responsible for the administration and enforcement of the HHS Mandate.
19. Defendant Seth D. Harris is the Acting Secretary of the United States. Department of Labor. As Acting Secretary, he is responsible for the operation and management of the Department. He is sued in his official capacity only.
20. Defendant United States Department of the Treasury is an agency of the United States government. The Department of the Treasury is responsible for the administration and enforcement of the Mandate.
21. Defendant Jacob Lew in his official capacity as U.S. Secretary of the Department of the Treasury is responsible for the operation and management of the United States Department of the Treasury. He is sued in his official capacity only.
22. Defendant Internal Revenue Service is an agency of the United States government. The IRS is responsible for the administration and enforcement of the Affordable Care Act.
23. Defendant Daniel I. Werfel in his official capacity as Acting Commissioner of Internal Revenue. The Internal Revenue Service is responsible for the operation, administration and enforcement of the ACA. He is sued in his official capacity only.
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Factual Allegations Doboszenski holds sincere religious beliefs
which conflict with the HHS Mandate. 24. Doboszenski is Roman Catholic and holds sincere religious beliefs based on Catholic teaching. 25. Doboszenski, as owner and officer of the Company, is responsible for the Company’s day-to-day operations and overall well-being. The Company reflects Doboszenski’s business and personal belief philosophies. In addition, his positions and ownership in the Company are the source of support for his family. 26. Doboszenski is a practicing, orthodox Roman Catholic. He believes in the doctrine of the Catholic Church, with which he has become intimately familiar through personal study, practice, and catechesis. Doboszenski observes his religious views as a practicing Catholic through prayer, observance of Holy Days, and daily Mass, among other faith-based activities. 27. Doboszenski sees his role as President and owner of the Company as his personal vocation that requires from him a daily commitment to excellently serve the Lord Jesus Christ according to the teachings of the Catechism. He asserts that the Company is the place he goes daily to “live out” his Christian beliefs in work and provision for his family and others. He also lives out his Christian beliefs through his position as a trustee of the Parish of Sts. Peter and Paul. It is Doboszenski’s religious beliefs that have established in his mind the value of work
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as a gift from God, and that every Christian and Roman Catholic must wisely use the “talents” that have been entrusted them by God. Doboszenski exercises his religion throughout the day at work—in his work ethic; in his openness about his Catholic faith with anyone and everyone; in his respect for the dignity of each of his employees as human beings and children of an Almighty God. Doboszenski firmly believes that he is a Catholic regardless of where he goes and what he does, and the workplace is no exception.
28. As a member of the Roman Catholic Church, Doboszenski adheres to the Catechism of the Catholic Church (“Catechism”) on abortion and contraception. See, e.g., Code of Canon Law § 757. Doboszenski came to believe what he believes through personal study and through significant learning in Catholic schools and frequent Mass.
29. The Catechism § 2322 states abortion is a criminal practice under religious law:
2322 From its conception, the child has the right to life. Direct abortion, that is, abortion willed as an end or as a means, is a "criminal" practice (GS 27 § 3), gravely contrary to the moral law. The Church imposes the canonical penalty of excommunication for this crime against human life. 30. The Catechism §§ 2367-2372, 2399 state that “direct sterilization and contraception” are “morally unacceptable” under Catholic religious law.
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31. Thus, Doboszenski is required to adhere to the religious teaching that
contraception and abortion are sinful and morally unacceptable under Catholic
religious law and sincerely hold and exercise those beliefs.
32. Doboszenski is required to follow this religious teaching in his life,
even if it relates to his Company and requires action through his Company.
33. In fact, the Catholic Church considers it a “public scandal”, according
to its own meaning of the term, if Doboszenski were to materially deviate from the
Catechism in his life. Catechism §§ 2284-2287.
34. Catechism § 2285 states:
Scandal takes on a particular gravity by reason of the authority of those who cause it or the weakness of those who are scandalized. It prompted our Lord to utter this curse: "Whoever causes one of these little ones who believe in me to sin, it would be better for him to have a great millstone fastened round his neck and to be drowned in the depth of the sea." Scandal is grave when given by those who by nature or office are obliged to teach and educate others. Jesus reproaches the scribes and Pharisees on this account: he likens them to wolves in sheep's clothing.
(Footnotes omitted).
35. Accordingly, Doboszenski, as a Catholic layperson, is very careful to
avoid public scandal.
36. Thus, with respect to the Company, Doboszenski operates his
Company in ways that adhere to and are not violative of the Catechism.
Doboszenski and his Company strive to support life and avoid public scandal.
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37. Doboszenski, as a member of a parish, is very concerned about violating Catholic teaching and the public scandal which would accompany those violations.
38. The Catechism also compels Doboszenski to provide for the physical health of his employees. Moreover, Doboszenski believes that the Catholic faith proposes that he ought to do the best he can for his employees. He exercises his religious beliefs by offering group health plans for his employees consistent with the Catechism.
39. The HHS Mandate requires that the Company’s group health plan provide and pay for coverage for contraception, sterilization, abortifacient drugs, and related education and counseling. Among the products the HHS Mandate requires Company’s group plan 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.
40. Doboszenski believes that paying for a group health plan that complies with the HHS Mandate is sinful and immoral because it requires Doboszenski, through his Company, to pay for contraception, sterilization, abortifacient drugs and related education and counseling violating the Catechism.
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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41. Doboszenski desires to continue offering a group health plan to Company employees, but wish to exclude coverage for products and services that violate their religious beliefs, such as those required by the HHS Mandate.
42. HHS will not allow Doboszenski to exclude these Mandate coverages when the Company plans to renew its group health plan coverage.
43. In short, the HHS Mandate will not permit Doboszenski to operate his business in accordance with the Catechism and his sincerely held religious beliefs.
44. In order for Doboszenski to avoid involvement in a public scandal, as defined by the Catechism and Code of Canon Law, Doboszenski and his Company would have to obtain a group health plan that does not comply with the HHS Mandate. Instead, HHS is coercing Doboszenski and his Company to violate the HHS Mandate, exposing him and his Company to substantial fines and penalties. 26 U.S.C. § 4980D.
45. If Doboszenski and his Company must choose to exercise his religious beliefs by offering a group health plan that does not comply with the HHS Mandate, he subjects himself to substantial fines and penalties. 26 U.S.C. § 4980D.
46. The Company will not be compliant with the HHS Mandate when it chooses to discontinue a legally-compliant group health plan, subjecting it to substantial fines and penalties, unless it receives relief from this Court.
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47. Doboszenski’s and his Company’s decision to discontinue a legallyrequired health plan because of the HHS Mandate will not be done willingly, but under the coercive pressure of the HHS Mandate and the public scandal it would create for Doboszenski if he were to comply with the HHS Mandate.
48. The HHS has exempted certain non-profit employers from complying with the requirements of the HHS 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 the same sincere religious objections, the Company does not, and cannot, meet the HHS’s narrow qualifications for such an exemption.
The Company reflects the religious beliefs of its owners. 49. The Company currently employs approximately 30 full-time and 2 part-time employees. Thus, the Company currently employs fewer than 49 full-time employees and full-time equivalents. 50. Doboszenski owns 70% share of the Company. 51. Doboszenski, personally, and consistent with his membership in the Roman Catholic Church, strives to operate his Company in accordance with the religious, ethical, and moral teachings of the Catholic Church. 52. The Company currently has a group health plan.
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53. According to HHS regulations, 77 Fed. Reg. at 8725, the Company’s group health plan is subject to the HHS Mandate.
54. Doboszenski’s religious beliefs prohibit the Company from intentionally providing a group health plan that provides coverage for contraception, sterilization, abortion and abortifacient drugs and related education and counseling. He believes that doing so would be acting as an accomplice to sin, which is still a sin in and of itself.
55. Doboszenski is aware of the national controversy surrounding the HHS Mandate and the many lawsuits filed by Catholics and others around the country who own businesses and have the same religious objections to the HHS Mandate.
56. The HHS Mandate denies Doboszenski and his Company 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.
57. As a result of the HHS Mandate, Doboszenski and the Company cannot offer a group health plan to its employees that accords with and does not violate Doboszenski’s sincerely-held religious beliefs.
58. Doboszenski believes he has a moral and religious duty to provide the best he can for his employees, which, until the enactment of the HHS Mandate, he has accomplished by providing a group health plan for the Company employees;
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however, he cannot continue to do so without violating their religious beliefs because of the HHS Mandate.
59. If the Company provides a group health plan that does not comply with the HHS Mandate, the Company is subject to the imposition of substantial fines and penalties.
The ACA and the HHS Mandate 60. 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). 61. 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. 62. In July, 2010, HHS issued regulations ordering HHS’s Health Resources Services Administration (“Health Resources Services”) to develop
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guidelines that would determine what preventative care and screenings would be mandated under the ACA. See 75 Fed. Reg. 41728 (July 19, 2010).
63. Health Resources Services commissioned and funded a committee at the Institute of Medicine to recommend which drugs, procedures, and services should be covered by all health plans as preventive care for women.
64. The Institute of Medicine’s report2 to Health Resources Services 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.”
65. On August 1, 2011, without notice of rulemaking or opportunity for public comment, the Health Resources Services adopted the Institute of Medicine’s recommendations in full. See Health Resources and Services Administration, Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.Health Resources Services.gov/womensguidelines (last visited Oct. 31, 2012) (“Health Resources Services Guidelines”).
66. Contemporaneously, HHS issued an “interim final rule” requiring “group health plan[s] and … health insurance issuer[s] offering group or individual 2 INSTITUTE FOR MEDICINE, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS (2011), available at http://cnsnews.com/sites/default/files/documents/PREVENTIVE%20SERV ICESINSTITUTE OF MEDICINE%20REPORT.pdf.
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insurance coverage [to] provide benefits for and prohibit the imposition of costsharing with respect to” the women’s preventive care and services included in the Health Resources Services 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).
67. On February 15, 2012, HHS issued final regulations—the HHS Mandate—by adopting the August 1 interim final rule “without change.” 77 Fed. Reg. 8725-30 (Feb. 15, 2012).
68. On July 2, 2013, HHS finalized its regulations related to the exemptions for “religious employers” and nonprofit religious organizations which establish, maintain, or arrange health coverage. 78 Fed. Reg. 39870 et seq. The final regulations became effective August 1, 2013. Id. However, the final regulations did not affect the then-existing regulations governing “for-profit employers with religious objections to contraceptive coverage” because HHS specifically “decline[d] to adopt . . . suggestions” that would have made accommodations for these religious objectors. 78 Fed. Reg. 39874-75.
69. Among the Federal Drug Administration approved “contraceptive methods” that all group health plans must provide at no cost are Plan B (the
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“morning after pill”) and Ella (the “week after pill”),3 drugs that are designed to destroy early human life shortly after conception.
70. 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.
71. The ACA, under 26 U.S.C. § 4980H, 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.
72. Employers with fewer than 50 full-time employees must comply with the HHS 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)
3 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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(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).4
73. Moreover, the ACA and the HHS Mandate prevents 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 all “health insurance issuers offering group or individual health insurance coverage” to provide Mandate-compliant coverage. 42 U.S.C. § 300gg-13(a)(4).
74. Therefore, Doboszenski and the Company cannot avoid the HHS Mandate by purchasing a group health plan that accommodates their conscience and religious beliefs because no such plan exists.
75. The HHS 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).
4 Although the Obama Administration claimed to push back the application of the requirement, under 26 U.S.C. § 4980H, that “large employers” offer group health care to their employees by one year, until 2015, this “push-back,” the constitutionality of which has been questioned, does not affect the penalties assessed under 26 U.S.C. § 4980D. See Mark J. Mazur, Treasury Notes, “Continuing to Implement the ACA in a Careful, Thoughtful Manner,” available at http://www.treasury.gov/connect/blog/Pages/Continuing-to-Implement-the-ACAin-a-Careful-Thoughtful-Manner-.aspx, July 2, 2013.
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76. To remain “grandfathered,” a group health plan must now and in the future comply with regulations issued by the HHS. 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).
77. The ACA and the HHS Mandate do not apply equally to members of certain religious groups.
78. 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).
79. The HHS Mandate indicates that Heath Resources Services “may” exempt certain “religious employers” from complying with the HHS Mandate. 45 C.F.R. § 147.130(a)(iv)(A); 76 Fed. Reg. at 46623; 78 Fed. Reg. 39870 et seq.
80. The HHS has defined which employers are “religious” for purposes of this exemption. 45 C.F.R. § 147.130(a)(iv)(B); 78 Fed. Reg. 39870 et seq.
81. Health Resources Services may grant exemptions for “religious employers” that “meet[] all of the following criteria: (1) The inculcation of
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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).
82. However, under amended guidelines issued July 2, 2013 and effective as of August 1, 2013, the HRSA states: “a religious employer is defined as an employer that is organized and operates as a non-profit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.” http://www.hrsa.gov/womensguidelines/; 78 Fed. Reg. 39870 et seq.5
83. 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).
84. The HHS Mandate does not place limits on Health Resource Services’ discretion to establish an exemption for “religious employers,” or to grant such 5 Although the CFR definition of “religious employer” itself has not been modified as of September 11, 2013, the Federal Register and the HRSA have announced this interpretation of “religious employer.” The change does not affect for-profit companies.
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exemptions to organizations meeting the Defendants’ definition of “religious employer.”
85. The HHS Mandate contains no exemptions for for-profit organizations, such as plaintiff Company, even when those organizations have a sincere religious objection to the HHS Mandate’s requirement that their group health plans provide coverage, at no cost, for contraception, sterilization, abortifacient drugs and related education and counseling.
86. The HHS 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, the August 1, 2011 amendments to the interim final rule, see 77 Fed. Reg. at 8726, and in amended guidelines adopted July 2, 2013 and effective August 1, 2013, see 78 Fed. Reg. 39874 and http://www.hrsa.gov/womensguidelines/.
87. The HHS 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.
88. Through these comments, the HHS was made aware of numerous objections to the HHS Mandate, including, but not limited to, the following:
• “the religious employer exemption is too narrow”;
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• “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. 89. Despite these, and other, known religious objections, the HHS 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.
90. With full knowledge of the aforementioned objections, the HHS issued the HHS Mandate, which substantially burdens the religious exercise of Doboszenski, Company and millions of other Americans.
91. Because the HHS 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 HHS Mandate impermissibly targets religious conduct.
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92. The HHS Mandate was adopted without giving due weight to the tens of thousands of public comments submitted to HHS in opposition to the HHS Mandate.
93. The HHS Mandate forces Doboszenski and the Company and others to adopt and endorse the HHS moral view of contraception, sterilization, abortifacient drugs and related education and counseling.
94. 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”),6 which established a “temporary enforcement safe harbor.”
95. 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-
6 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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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.”
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).7
7 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-guidance-08152012.pdf (last visited Oct. 16, 2012).
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96. On March 21, 2012, the HHS 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).
97. In the Advanced Notice, the HHS stated an intention to “accommodate” some religious non-profit employers not defined as “religious employers” by HHS by requiring compliance with the mandate by means of requiring those employers’ insurers to offer the employer’s employees the coverage required by the HHS Mandate at no cost. See 77 Fed. Reg. at 16503.
98. 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 HHS Mandate. It does not even create a legal requirement that HHS change the HHS Mandate at some time in the future.
99. On February 6, 2013, the Departments of HHS, Treasury, and Labor proposed to eliminate the first three prongs of the test for what constitutes a “religious employer” as described in paragraph 79, supra. 78 Fed. Reg. 8461.
100. On July 2, 2013, HHS finalized without change the proposed regulations described in paragraph 97, supra, so that, as of August 1, 2013, the definition of “religious employer” had become only the fourth prong of the prior test: “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
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1986, as amended.” 78 Fed. Reg. 39874; see also http://www.hrsa.gov/womensguidelines/. However, HHS specifically “decline[d] to adopt . . . suggestions” that would have made accommodations for for-profit companies and their owners with religious objections to the HHS Mandate. 78 Fed. Reg. 39874-75. In other words, for-profit employers with religious objections remain subject to the HHS Mandate’s contraception coverage requirements. See id.
101. The ACA creates a system of individualized exemptions. 102. 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. 103. Employers who are exempt from providing health care coverage are exempt from complying with the HHS Mandate. 104. Upon information and belief, HHS has granted over 1,000 compliance waivers. 105. HHS has granted compliance waivers to for-profit businesses, unions, and other organizations for purely secular reasons, but has not exempted Company despite Doboszenski’s sincere religious objections. 106. The ACA is not generally applicable because it provides numerous exemptions from its rules and applicability.
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107. The ACA is not neutral because some organizations and individuals, both secular and religious, are exempt from complying with certain provisions it, including the HHS Mandate.
108. 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 HHS Mandate.
Doboszenski, his Company and the HHS Mandate 109. The HHS Mandate applied to the Company’s first group health plan year after August 1, 2012. 110. The plan year for the Company’s current group health plan is through December 1, 2013 (pending approval from Medica). 111. The HHS Mandate applies to any group health plan provided by the Company. 112. The Company does not qualify for any of the exemptions to the ACA. 113. The Company does not qualify for an individual exemption under 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) as the Company does not object to acceptance of public or private insurance funds in their totality -- a requirement for the exemption. 114. The Company’s current group health plan also does not qualify as a “grandfathered” group health plan.
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115. Upon information and belief, the Company’s current group health plan does not qualify as a “grandfathered” group health plan because Medica, the insurer for the Company’s group health plan, along with all the other Minnesota group health insurance carriers, decided not to keep their small group plans—a form of which the Company offers to its employees—grandfathered. Upon information and belief, Medica made significant enough plan changes to the Company’s small group plan that resulted in loss of grandfathered status.
116. Even if this were not so, the Company could not qualify for grandfather status because the Company 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).
117. The Company does not qualify as exempt “religious employers” under 45 CFR § 147.130(a)(1)(iv)(A)-(B) or under the guidelines set forth by the HRSA and effective August 1, 2013, available at http://www.hrsa.gov/womensguidelines/.
118. The Company is not “religious” enough under the HHS’s definition of “religious employer” in several respects because, including but not limited to, the Company has purposes other than the “inculcation of religious values,” it does not primarily hire or serve Catholics, and because Doboszenski’s current 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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119. Because the Company does not qualify for the “religious employer” exemption, it is not permitted to take advantage of the “temporary enforcement safe-harbor” as set forth by the Defendants at 77 Fed. Reg. 8725 and the contemporaneously-issued Guidance.
120. The HHS Mandate requires that the Company finance coverage for and facilitate access to contraception, sterilization, abortifacient drugs and related education and counseling against the Plaintiffs’ conscience and in violation of their religious beliefs, in a manner that is contrary to law.
121. The HHS Mandate constitutes government-imposed coercion on Doboszenski and Company to change or violate Doboszenski’s sincerely held religious beliefs.
122. The HHS Mandate exposes the Company and Doboszenski to the imposition of substantial fines and penalties for refusing to change or violate their religious beliefs.
123. Pursuant to the HHS 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.
124. HHS has deprived Doboszenski and the Company of any choice to select a group health plan that excludes coverage for these drugs, devices, and services.
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125. Doboszenski and the Company are forced to select and pay for a group health plan that includes the HHS Mandate-compliant coverage in violation of their religious beliefs.
Protecting employees is also a sincere religious based belief and the offer of health insurance meets that obligation.
126. The HHS Mandate will prevent Doboszenski from exercising his religiously-held duty to provide for the health and welfare of his current and future employees by providing them a group health plan without the objectionable HHS Mandate-compliant coverage.
127. Doboszenski has a sincere conscientious religious objection to funding coverage for and facilitating access to contraception, sterilization, abortifacient drugs and related education and counseling.
128. The HHS Mandate directly punishes, with substantial fines and penalties, Doboszenski’s exercise of his religious beliefs.
129. The HHS Mandate imposes substantial burdens on Doboszenski’s exercise of his sincerely-held religious beliefs through the Company.
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The Plaintiffs are exposed to substantial tax penalties and interest. 130. The Defendant IRS is the responsible governmental agency for the application and enforcement of fines or monetary tax penalties through IRS rules and regulations. Failure to abide by those rules and regulations will result in substantial penalties for both employers and employees. 131. Violations of the Affordable Care Act coverage mandates are subject to tax under Internal Revenue Code section 4980D and the employer must pay an excise tax of $100 per day during the noncompliance period with respect to each individual to whom the violation relates. This tax must be self-reported annually to the Internal Revenue Service on Form 8928 under Chapter 43 of the Internal Revenue Code no later than the deadline for the filing of the entity’s federal income tax return. Payment of the excise tax is due upon the filing of Form 8928. 132. Interest is charged on taxes not paid by the due date even if an extension of time to file is granted regarding Form 8928. The interest rate is determined under Internal Revenue Code § 6621. There is a penalty for a late filing of the Form 8928 return, including extensions. The payment may include a penalty of up to 5% of the unpaid tax for each month or part of the month the unpaid tax return is late, up to a maximum of 25% of the unpaid tax. Failure to pay any excise tax with the filing of Form 8928 will also result in an additional penalty of ½ of
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1% of the unpaid tax for each month or part of a month the tax is not paid, up to a maximum of 25% of the unpaid tax.
133. The implementation of the self-reporting obligation of the excise tax began for health insurance plan years beginning on or after January 1, 2010. Doboszenski’s and the Company’s group health insurance plan renewal period will begin on December 1, 2013 (pending approval by Medica). Doboszenski and the Company will have to file Form 8928, return of certain excise taxes under Chapter 43 of the Internal Revenue Code, when they fail to meet the requirements under section 4980D.
134. In addition, under section 4980H of the Affordable Care Act, large employers, who employ 50 or more full-time employees, including full-time equivalents, may be subject to a penalty if they do not offer health coverage, or if they offer coverage, that is unaffordable or does not provide minimum value.
135. Under section 4980H(a) of the Internal Revenue Code, if an employer fails to offer health coverage to its full-time employees and their dependents, and at least one full-time employee obtains subsidized coverage in a state health insurance Exchange, the 4980H(a) annual tax penalty is $2,000 times the total number of full-time employees employed by the employer. For purposes of calculating the 4980H(a) penalty, the number of full-time employees is reduced by 30.
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136. The State of Minnesota has an American Health Benefit Exchange as one avenue individuals may purchase insured coverage. (See, ACA § 1311(b)). Individual health insurance coverage is also available outside of the Exchange depending upon the individual’s determination of what is the best value for him or her.
137. Doboszenski and the Company employ Minnesota residents. At least one employee, upon information and belief, will seek insurance through the Minnesota Exchange.
138. Under the present proposed rules and regulations, Doboszenski and the Company do not employ over 50 full-time employees, and are not considered a large employer under 26 U.S.C. § 4890H. However, there exists the possibility that the Company could employ over 50 employees for ACA counting purposes at some point in the future, which would subject them to substantial tax penalties if the Company fails to meet certain requirements for health insurance coverage to their employees.
139. Likewise, individuals such as Doboszenski and the Company’s employees who fail to obtain compliant health insurance will be subject to substantial IRS tax penalties collectable through the withholding of federal tax refunds.
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140. Doboszenski and the Company, based on their religious beliefs, consider it a moral obligation to offer their employees the benefit of health insurance to protect their employees’ well-being and that of their family members.
141. Doboszenski and the Company’s employees have and continue to rely upon offered health insurance to protect themselves and family members.
142. The Affordable Care Act is coercing Doboszenski and the Company to forego their religious beliefs and refuse to offer health insurance to employees. As a consequence, Doboszenski and the Company will face substantial tax penalties as imposed through the Defendant IRS.
143. Doboszenski and the Company bring this action to enjoin HHS’s violations of Doboszenski’s and the Company’s statutory and constitutional rights and to permit Doboszenski and the Company to operate their current and future businesses in a manner consistent with and not in violation of their sincerely-held religious beliefs.
144. Doboszenski and Company have no adequate remedy at law. Claims for Relief COUNT I
Violation of the Religious Freedom Restoration Act 42 U.S.C. § 2000bb
145. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this complaint as though fully set forth herein.
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146. Doboszenski’s sincerely-held religious beliefs prohibit him, through the Company, from purchasing or providing coverage for contraception, sterilization, abortifacient drugs and related education and counseling in Company’s group health plan.
147. Doboszenski, as a member of the Catholic Church, adheres to Catholic teachings with regard to contraception, sterilization, abortion, abortifacient drugs and related education and counseling. He exercises religion with respect to those teachings within the meaning of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb (“RFRA”).
148. The HHS Mandate coerces Doboszenski to change or violate his sincerely-held religious beliefs by requiring the Company to provide group health plans compliant with the HHS Mandate or be charged with substantial fines and penalties.
149. According to Roman Catholic religious law, it would be public scandal for Doboszenski to knowingly continue owning a business that provides health care coverage for contraception, sterilization, abortion, abortifacient drugs and related education and counseling.
150. The HHS Mandate coerces Doboszenski through the Company to violate his sincerely-held religious beliefs.
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151. The HHS Mandate forces Doboszenski to choose between violating his religious exercise by complying with the HHS Mandate or paying substantial fines and penalties for not complying with the HHS Mandate.
152. The HHS Mandate imposes a substantial burden on Doboszenski’s and the Company’s exercise of religion.
153. The HHS Mandate furthers no compelling government interest. 154. The HHS Mandate is not narrowly tailored to any compelling government interest. 155. The HHS Mandate is not the least restrictive means of furthering Defendants’ alleged interests. 156. The HHS Mandate, as implemented, is facially invalid under the Religious Freedom Restoration Act. 157. The HHS Mandate, as implemented, is invalid as applied under the Religious Freedom Restoration Act. 158. Because of the direct harm the HHS Mandate imposes upon Doboszenski and the Company in violation of the Religious Freedom Restoration Act, immediate injunctive relief is necessary to prevent governmental intrusion and punishment of the Plaintiffs for exercising their sincerely-held religious beliefs.
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COUNT II Violation of the Free Exercise Clause of the First Amendment to the United States Constitution 159. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this complaint as though fully set forth herein. 160. The First Amendment of the United States Constitution protects the free exercise of religion. 161. Doboszenski’s sincerely-held religious beliefs prohibit him from purchasing or providing coverage for contraception, sterilization, abortifacient drugs and related education and counseling in the Company’s employee group health plan. 162. When Doboszenski adheres to Catholic teaching with regard to contraception, sterilization, abortion, abortifacient drugs and related education and counseling, he is exercising religion within the meaning of the Free Exercise of the First Amendment. 163. The HHS Mandate is not neutral and is not generally applicable. 164. HHS has created categorical and individualized exemptions to the HHS Mandate. 165. The HHS Mandate coerces Doboszenski and the Company to change or violate sincerely-held religious beliefs.
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166. The HHS Mandate coerces Doboszenski to change or violate his sincerely-held religious beliefs by requiring the Company to purchase group health plans compliant with the HHS Mandate or be charged with substantial fines and penalties.
167. The HHS Mandate prevents Doboszenski’s religious exercise. 168. According to Roman Catholic religious law, it would be public scandal for Doboszenski to knowingly continue owning a business that provides health care coverage for contraception, sterilization, abortion, abortifacient drugs and related education and counseling. 169. The HHS Mandate imposes a substantial burden on Doboszenski’s exercise of his religion. 170. The HHS Mandate is designed to apply to some religious American citizens but not to others, which results in discrimination among religions. 171. The HHS Mandate permits Health Resources Services unlimited discretion to decide to exempt some, all, or no organizations meeting the HHS’s definition of “religious employers.” 172. HHS has created exemptions to the HHS Mandate for some religious believers but not others based on characteristics of their beliefs, the types of organizations, and the manner in which they exercise those beliefs.
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173. Despite having prior detailed knowledge of the kind of religious objections contained in this complaint, HHS designed the HHS Mandate and the religious exemption to the HHS Mandate in a way that made it impossible for Doboszenski, through his Company and others similarly situated, to comply with their religious beliefs.
174. HHS promulgated both the HHS Mandate and the religious exemptions thereto with the purpose and intent to suppress the religious exercise of owners of for-profit companies like the Plaintiffs.
175. The HHS Mandate furthers no compelling governmental interest. 176. The HHS Mandate is not the least restrictive means of furthering HHS’ alleged interests. 177. As a result of HHS’ violations of the First Amendment’s Free Exercise Clause as described above, the HHS Mandate is facially invalid. 178. As a result of HHS’ violations of the First Amendment’s Free Exercise Clause as described above, the HHS Mandate is invalid as applied. 179. The HHS Mandate violates Doboszenski’s right secured to him by the Free Exercise Clause of the First Amendment of the United States Constitution. Because of the direct harm the HHS Mandate imposes upon Doboszenski and the Company in violation of their constitutional right to freedom of religion, immediate injunctive relief is necessary to prevent governmental intrusion and
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punishment of the Plaintiffs for exercising their sincerely-held religious beliefs as protected under the First Amendment.
COUNT III Violation of the Establishment Clause of
the United States Constitution 180. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this complaint as though fully set forth herein. 181. The First Amendment’s Establishment Clause prohibits the establishment of any religion as well as excessive government entanglement with religion. 182. The Establishment Clause requires government neutrality in matters of religion and in matters of religious organization. 183. The HHS Mandate discriminates among religious organizations, favoring some over others, and exhibits hostility to religious beliefs. 184. The HHS Mandate establishes which individuals and entities are “sufficiently religious” to warrant exemption from the requirements of the ACA and the HHS Mandate. 185. Owners of for-profit companies, no matter how religious, are not included in the exemption from the requirements of the ACA and the HHS Mandate.
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186. The exemptions from the HHS Mandate do exclude Bishops and their church organizations, but do not exclude lay people who own for-profit businesses and have the same religious objections to the HHS Mandate as the Bishops and their church organizations.
187. Thus, the exemption from the HHS Mandate unconstitutionally discriminates in favor of the Bishop (the Shepherd) and against the lay people (the Flock).
188. Additionally, by enforcing the HHS Mandate, HHS adopts a particular theological view of what is acceptable moral complicity in provision of abortifacients, contraceptives and sterilization coverage and imposes it upon all religionists who must either conform their consciences or suffer fines and penalties.
189. The government’s use of the political tactic of dividing the Shepherd from the Flock is a violation of the Establishment Clause’s neutrality requirement. In using this political tactic, the government is unconstitutionally favoring religious objectors who are Bishops or those who are organized as church organizations over religious objectors who are individuals who own for-profit businesses.
190. As a result of the HHS violations under the First Amendment’s Establishment Clause as described above, the HHS Mandate is facially invalid.
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191. As a result of the HHS violations under the First Amendment’s Establishment Clause as described above, the HHS Mandate is invalid as applied.
192. The HHS Mandate violates Doboszenski’s and the Company’s rights secured to them by the Fifth Amendment of the United States Constitution. Because of the direct harm the HHS Mandate imposes upon Doboszenski and the Company in violation of their constitutional rights of due process, equal protection and neutrality, immediate injunctive relief is necessary to prevent governmental intrusion of the Plaintiffs protected constitutional rights.
COUNT IV Violation of the Fifth Amendment of the United States Constitution 193. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this complaint as though fully set forth herein. 194. The Fifth Amendment of the United States Constitution has an explicit requirement that the federal government not deprive individuals of "life, liberty, or property" without due process of the law and an implicit guarantee that each person receive equal protection of the laws. 195. The Fifth Amendment requires government neutrality in matters of religion and in matters of religious organization. 196. The HHS Mandate discriminates among religious organizations, favoring some over others, and exhibits hostility to religious beliefs.
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197. The HHS Mandate establishes which individuals and entities are sufficiently religious to warrant exemption from the requirements of the ACA and the HHS Mandate.
198. Owners of for-profit companies, no matter how religious, are not included in the exemption from the requirements of the ACA and the HHS Mandate.
199. The exemptions from the HHS Mandate do exclude Bishops and their church organizations, but do not exclude lay people who own for-profit businesses and have the same religious objections to the HHS Mandate.
200. Thus, the exemption from the HHS Mandate unconstitutionally discriminates in favor of the Bishop (the Shepherd) and against the lay people (the Flock).
201. The government’s use of the political tactic of dividing the Shepherd from the Flock is a violation of the Fifth Amendment’s due process, equal protection and neutrality requirements. The HHS Mandate’s exemption does not treat each similarly-situated religious objector equally under the law. In using this political tactic, the government is unconstitutionally favoring religious objectors who are Bishops or organized as church organizations over religious objectors who are individuals who own for-profit businesses.
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202. As a result of the HHS violations under the Fifth Amendment as described above, the HHS Mandate is facially invalid.
203. As a result of the HHS violations under the Fifth Amendment as described above, the HHS Mandate is invalid as applied.
204. The HHS Mandate violates Doboszenski’s rights secured to him by the Fifth Amendment of the United States Constitution. Because of the direct harm the HHS Mandate imposes upon Doboszenski’s and the Company in violation of their constitutional right of due process and equal protection, immediate injunctive relief is necessary to prevent governmental intrusion of the Plaintiffs protected constitutional rights under the Fourteenth Amendment.
COUNT V Violation of the Free Speech Clause of the First Amendment to the United States Constitution 205. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this complaint as though fully set forth herein. 206. A business’ conduct and speech relating to the provision of employee health insurance is “speech” protected by the Free Speech Clause. 207. The HHS Mandate’s requirement that all group health plans provide coverage for education and counsel related to contraceptives, sterilization, and abortifacient drugs forces Doboszenski, through the Company, to subsidize speech and expressive conduct that is directly contrary to Doboszenski’s religious beliefs.
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208. The HHS Mandate furthers no compelling governmental interest. 209. The HHS Mandate is not narrowly tailored to any compelling governmental interest. 210. As a result of the HHS violations under the First Amendment’s protection of free speech as described above, the HHS Mandate is facially invalid. 211. As a result of the HHS violations under the First Amendment’s protection of free speech as described above, the HHS Mandate is invalid as applied. 212. The HHS Mandate violates Plaintiffs’ rights secured to them by the Free Speech Clause of the First Amendment of the United States Constitution. Because of the direct harm the HHS Mandate imposes upon Doboszenski and the Company in violation of their constitutional right of free speech, immediate injunctive relief is necessary to prevent governmental intrusion of the Plaintiffs protected constitutional rights under the First Amendment.
COUNT VI Violation of the Administrative Procedures Act 213. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this complaint as though fully set forth herein. 214. Because HHS did not give proper notice and an opportunity for public comment when they promulgated the “preventive care” guidelines, HHS did not
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take into account the full implications of the regulations by completing a meaningful consideration of the relevant matter presented.
215. HHS did not consider or respond to the voluminous comments they received in opposition to the August 1, 2012 interim final rule.
216. HHS did not consider or respond to the voluminous comments they received in opposition to the proposed final regulations adopted on July 2, 2013.
217. Therefore, HHS have taken agency action not in accordance with procedures required by law, and Doboszenski and the Company are entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
218. In promulgating the HHS Mandate, HHS failed to consider the constitutional and statutory implications of the HHS Mandate on Doboszenski and the Company and similar persons.
219. HHS’s decision to not exempt the Company and similar organizations is contrary to the evidence submitted during the comment period.
220. HHS’s issuance of the HHS Mandate was thus arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because HHS failed to consider the full extent of the HHS Mandate’s implications and they did not take into consideration the evidence against it.
221. The HHS Mandate is also contrary to existing law and is thus in violation of the APA under 5 U.S.C. § 706(2)(A).
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222. As a result of the HHS violations under the APA as described above, the HHS Mandate is facially invalid.
223. As a result of the HHS violations under the APA as described above, the HHS Mandate is invalid as applied.
224. As a result of HHS violating the APA, the Plaintiffs have been directly harmed with the government’s intrusive efforts to violate protections afforded to Doboszenski and the Company under the federal Constitution and under RFRA.
Jury Trial Demanded 225. Plaintiffs demand on any issue triable of right by a jury, a jury trial as protected under the United States Constitution, amend. VII, and as provided under Rule 38 of the Federal Rules of Civil Procedure.
Prayer for Relief WHEREFORE, the above-named Plaintiffs respectfully request the following relief: 1. Enter a declaratory judgment that the HHS Mandate, which requires employee health insurance coverage 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
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(“the HHS Mandate”), see 45 CFR § 147.130 (a)(1)(iv), and its application to the Company and Doboszenski violates the Religious Freedom Restoration Act (RFRA); 2. Enter a declaratory judgment that the HHS Mandate and its application to the Company and Doboszenski violate the Free Exercise Clause of the First Amendment of the United States Constitution; 3. Enter a declaratory judgment that the HHS Mandate and its application to the Company and Doboszenski violate the Establishment Clause of the First Amendment of the United States Constitution; 4. Enter a declaratory judgment that the HHS Mandate and its application to the Company and Doboszenski violate the Free Speech Clause of the First Amendment of the United States Constitution; 5. Enter a declaratory judgment that the HHS Mandate and its application to the Company and Doboszenski violate the Fifth Amendment of the United States Constitution; 6. Enter a declaratory judgment that the HHS Mandate and its application to the Company and Doboszenski violate the Administrative Procedures Act; 7. Enter a declaratory judgment that the HHS Mandate is facially invalid because it violates the United States Constitution, the Religious Freedom Restoration Act and the Administrative Procedures Act;
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8. Enter a declaratory judgment that the HHS Mandate is invalid as applied because it violates the United States Constitution, the Religious Freedom Restoration Act and the Administrative Procedures Act;
9. Enter a preliminary and permanent injunction prohibiting the Defendants Kathleen Sebelius as U.S. Secretary of Health and Human Services and the United States Department of Health and Human Services; Jacob Lew as U.S. Secretary of the Treasury and the United States Department of the Treasury; and Daniel I. Werfel as Acting Commissioner of Internal Revenue and the Internal Revenue Service from enforcing the HHS Mandate against the Company and Doboszenski;
10. Enter a preliminary and permanent injunction prohibiting the Internal Revenue Service from the application and/or enforcement of IRS rules or regulations that would result in imposing tax penalties against the Company and Doboszenski, including but not limited to, the requiring filing of Form 8980 regarding the return of certain excise taxes under Chapter 43 of the Internal Revenue Code (or similar form) and the payment of any excise tax or interest penalty;
11. Enter a preliminary and permanent injunction prohibiting the Internal Revenue Service from the application and/or enforcement of IRS rules or
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regulations that would result in any other type of tax penalty, including

interest, against the Company and Doboszenski;

12. Enter a preliminary and permanent injunction prohibiting the Internal

Revenue Service from the application and/or enforcement of IRS rules or

regulations that would result in imposing penalties against any of the

Company’s and Doboszenski’s employees;

13. Enter a declaratory judgment that an insurance issuer or administrator that

offers a group health plan to Company excluding the coverage required by

the HHS Mandate does not violate the Patient Protection and Affordable

Care Act or the HHS Mandate;

14. Award the Company and Doboszenski costs and reasonable attorney fees

under 42 U.S.C. § 1988; and

15. Award such other relief as the court deems just.

Dated: November 14, 2013.

MOHRMAN & KAARDAL, P.A.

/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 Counsel for Plaintiffs

51

CASE 0:13-cv-03148-JNE-FLN Document 1 Filed 11/14/13 Page 52 of 52

JS 44 (Rev. 09/11)

CASE 0:13-cv-03148-JNEC-FIVLNILDCoOcuVmEeRnt S1H-1EEFiTled 11/14/13 Page C1Mo/Ef C1F Requirements

The JS 44 civil coversheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States inSeptember 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DOBOSZENSKI & SONS, INC. and DOUGLAS DOBOSZENSKI

DEFENDANTS KATHLEEN SEBELIUS, et al.

(b) County of Residence of First Listed Plaintiff Hennepin
(EXCEPT IN U.S. PLAINTIFF CASES)

County of Residence of First Listed Defendant

(IN U.S. PLAINTIFF CASES ONLY)

NOTE:

IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Erick G. Kaardal, James V. F. Dickey - Mohrman & Kaardal, P.A.

Attorneys (If Known)

33 South Sixth Street, Suite 4100

Minneapolis, MN 55402 / Telephone: 612-341-1074

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff)

’ 1 U.S. Government Plaintiff

’ 3 Federal Question (U.S. Government Not a Party)

(For Diversity Cases Only)

PTF

Citizen of This State

’1

DEF ’1

and One Box for Defendant)

PTF DEF

Incorporated or Principal Place

’ 4 ’4

of Business In This State

’ 2 U.S. Government Defendant

’ 4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

’ 2 ’ 2 Incorporated and Principal Place of Business In Another State

’ 5 ’5

Citizen or Subject of a Foreign Country

’ 3 ’ 3 Foreign Nation

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

TORTS

FORFEITURE/PENALTY

BANKRUPTCY

’ 110 Insurance

PERSONAL INJURY

’ 120 Marine

’ 310 Airplane

’ 130 Miller Act

’ 315 Airplane Product

’ 140 Negotiable Instrument

Liability

’ 150 Recovery of Overpayment ’ 320 Assault, Libel &

& Enforcement of Judgment

Slander

’ 151 Medicare Act

’ 330 Federal Employers’

’ 152 Recovery of Defaulted

Liability

Student Loans

’ 340 Marine

(Excl. Veterans)

’ 345 Marine Product

’ 153 Recovery of Overpayment

Liability

of Veteran’s Benefits

’ 350 Motor Vehicle

’ 160 Stockholders’ Suits

’ 355 Motor Vehicle

’ 190 Other Contract

Product Liability

’ 195 Contract Product Liability ’ 360 Other Personal

’ 196 Franchise

Injury

’ 362 Personal Injury -

Med. Malpractice

REAL PROPERTY

CIVIL RIGHTS

’ 210 Land Condemnation

’ 440 Other Civil Rights

’ 220 Foreclosure

’ 441 Voting

’ 230 Rent Lease & Ejectment ’ 442 Employment

’ 240 Torts to Land

’ 443 Housing/

’ 245 Tort Product Liability

Accommodations

’ 290 All Other Real Property ’ 445 Amer. w/Disabilities -

Employment

’ 446 Amer. w/Disabilities -

Other

’ 448 Education

PERSONAL INJURY ’ 625 Drug Related Seizure

’ 422 Appeal 28 USC 158

’ 365 Personal Injury -

of Property 21 USC 881 ’ 423 Withdrawal

Product Liability ’ 690 Other

28 USC 157

’ 367 Health Care/

Pharmaceutical

PROPERTY RIGHTS

Personal Injury

’ 820 Copyrights

Product Liability

’ 830 Patent

’ 368 Asbestos Personal

’ 840 Trademark

Injury Product

Liability

LABOR

SOCIAL SECURITY

PERSONAL PROPERTY ’ 710 Fair Labor Standards

’ 861 HIA (1395ff)

’ 370 Other Fraud

Act

’ 862 Black Lung (923)

’ 371 Truth in Lending ’ 720 Labor/Mgmt. Relations ’ 863 DIWC/DIWW (405(g))

’ 380 Other Personal

’ 740 Railway Labor Act

’ 864 SSID Title XVI

Property Damage ’ 751 Family and Medical

’ 865 RSI (405(g))

’ 385 Property Damage

Leave Act

Product Liability

’ 790 Other Labor Litigation

’ 791 Empl. Ret. Inc.

PRISONER PETITIONS

Security Act

FEDERAL TAX SUITS

’ 510 Motions to Vacate

’ 870 Taxes (U.S. Plaintiff

Sentence

or Defendant)

Habeas Corpus:

’ 871 IRS—Third Party

’ 530 General

26 USC 7609

’ 535 Death Penalty

IMMIGRATION

’ 540 Mandamus & Other ’ 462 Naturalization Application

’ 550 Civil Rights

’ 463 Habeas Corpus -

’ 555 Prison Condition

Alien Detainee

’ 560 Civil Detainee -

(Prisoner Petition)

Conditions of

’ 465 Other Immigration

Confinement

Actions

’ 6 ’6
OTHER STATUTES
’ 375 False Claims Act ’ 400 State Reapportionment ’ 410 Antitrust ’ 430 Banks and Banking ’ 450 Commerce ’ 460 Deportation ’ 470 Racketeer Influenced and
Corrupt Organizations ’ 480 Consumer Credit ’ 490 Cable/Sat TV ’ 850 Securities/Commodities/
Exchange ’ 890 Other Statutory Actions ’ 891 Agricultural Acts ’ 893 Environmental Matters ’ 895 Freedom of Information
Act ’ 896 Arbitration ’ 899 Administrative Procedure
Act/Review or Appeal of Agency Decision ’ 950 Constitutionality of State Statutes

V. ORIGIN
’ 1 Original Proceeding

(Place an “X” in One Box Only)

’ 2 Removed from

’ 3 Remanded from

State Court

Appellate Court

’ 4 Reinstated or Reopened

’

5

Transferred from another district

(specify)

’ 6 Multidistrict Litigation

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
42 U.S.C. § 2000bb; 28 U.S.C. §2201, 2202; 5 U.S.C. §702 VI. CAUSE OF ACTION Brief description of cause:
Following Affordable Care Act violates freedom of religion, etc.

VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION

DEMAND $

CHECK YES only if demanded in complaint:

COMPLAINT:

UNDER F.R.C.P. 23

JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S)

IF ANY

(See instructions): JUDGE

DOCKET NUMBER

DATE
11/14/2013
FOR OFFICE USE ONLY

SIGNATURE OF ATTORNEY OF RECORD
/s/Erick G. Kaardal

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

Print

Save As...

Reset

 
 CASE 0:13-cv-03148-JNE-FLN Document 7 Filed 11/22/13 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

DOBOSZENSKI & SONS, INC. and DOUGLAS DOBOSZENSKI,

Civil File No. 13-CV-03148 JNE/FLN

Plaintiffs,

vs
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services and her successor; and the UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES;

MOTION FOR PRELIMINARY INJUNCTION AND STAY

SETH D. HARRIS, in his official capacity as Acting Secretary of the United States Department of Labor and his successor; and the UNITED STATES DEPARTMENT OF LABOR;

JACOB LEW, in his official capacity as U.S. Secretary of the Treasury and his successor; and the UNITED STATES DEPARTMENT OF THE TREASURY, and

DANIEL I. WERFEL, in this official capacity as Acting Commissioner of Internal Revenue and his successor; and the INTERNAL REVENUE SERVICE,

Defendants.

CASE 0:13-cv-03148-JNE-FLN Document 7 Filed 11/22/13 Page 2 of 3
MOTION FOR PRELIMINARY INJUNCTION AND STAY Plaintiffs Doboszenski & Sons, Inc. and Douglas Doboszenski, by and through their attorneys, move the Court for the following relief: 1. A preliminary injunction, in the form proposed in the accompanying proposed order -- which includes a stay of proceedings until thirty days after the mandate issues from the Eighth Circuit in O’Brien v. U.S. Dep’t of Health & Human Servs., No. 12-3357, or Annex Medical, Inc. v. Sebelius, No. 13-1118, or until the Supreme Court issues a ruling in a substantially similar case, whichever occurs first -- against the enforcement of 42 U.S.C. § 300gg-13(a)(4) (the “Mandate”) and each and every one of its implementing regulations, published at 76 Fed. Reg. 46621-46626 (August 3, 2011) (interim final rules with request for comments) and 77 Fed. Reg. 8725-8730 (Feb. 15, 2012) (final rules), against:
a. these Plaintiffs; b. any health insurance issuer offering group health insurance to these
Plaintiffs, which health insurance does not provide coverage for “All Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity”; and c. any third-party administrator implementing any self-insured plan in favor of these Plaintiffs under the Employee Retirement Income Security Act of 1974 (ERISA) to which the Mandate and its implementing regulations would otherwise apply, which self-insured
2

CASE 0:13-cv-03148-JNE-FLN Document 7 Filed 11/22/13 Page 3 of 3

plan does not cover “All Food and Drug Administration approved

contraceptive methods, sterilization procedures, and patient education

and counseling for all women with reproductive capacity.”

It is not expected that this Motion will be opposed. In the event this Motion is

opposed, the grounds for granting this Motion will be set forth in a memorandum of law

and in arguments of counsel.

MOHRMAN & KAARDAL, P.A.

Dated: November 22, 2013.

/s/Erick G. Kaardal Erick G. Kaardal, 229647 33 South Sixth Street, Suite 4100 Minneapolis, Minnesota 55402 Telephone: 612-341-1074

ATTORNEYS FOR PLAINTIFFS

3

 
 CASE 0:13-cv-03148-JNE-FLN Document 12 Filed 11/25/13 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MINNESOTA

____________________________________

)

DOBOSZENSKI & SONS, INC.; and

)

Case No. 0:13-cv-03148-JNE-FLN

DOUGLAS DOBOSZENSKI,

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al.,

)

)

Defendants.

)

____________________________________)

DEFENDANTS’ NOTICE OF NON-OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND STAY OF PROCEEDINGS

In light of the rulings of m otions panels of the Eighth Circuit in O’Brien v. United States

Department of Health and Human Services , No. 12-3357, Order (8th Cir. Nov. 28, 2012), and

Annex Medical, Inc. v. Sebelius, No. 13-1118, Order (8th Cir. Feb. 1, 2012), granting injunctions

pending appeal in cases sim ilar to this one ch allenging the contraceptive coverage regulations,

defendants write to inform the Court that they do not oppose plaintiffs’ Motion for Prelim inary

Injunction/Stay, ECF No. 7, until s uch time as the appeal in O’Brien or Annex Medical, is

resolved, or until th e Supreme Court issues a ru ling in a substantially similar case, whichever

occurs first.

For the reasons stated in defendants’ oppositio ns to plaintiffs’ m otions for prelim inary

injunction in O’Brien and Annex Medical, see Defs.’ Me m. of La w in Opp’n to Pls.’ Mot. for

Prelim. Inj., O’Brien v. U.S. Dep’t of Health & Human Servs. , No. 4:12-cv-00476-CEJ (E.D.

Mo. Sept. 14, 2012), ECF No. 47; Defs.’ Mem. of La w in Opp’n to Pls.’ Mot. for Prelim . Inj.,

Annex Medical v. Sebelius, No. 12-cv-02804-DSD-SER (D. Minn. Dec. 12, 2012), ECF No. 17,

as well as the district courts’ decisions denying preliminary relief in tho se cases, see O’Brien v.

CASE 0:13-cv-03148-JNE-FLN Document 12 Filed 11/25/13 Page 2 of 5
U.S. Dep’t of Health & Human Ser vs., 894 F. Supp. 2d 1149 (E.D. Mo. 2012); Annex Medical, Inc. v. Seb elius, No. 12-cv-02804-DSD-SER, 2013 WL 203526 (D. Minn. Jan. 17, 2013), defendants do not believe that plaintiffs are likely to succeed on the merits of any of their claims, and believe that th e decisions of the m otions panels in O’Brien and Annex Medical were incorrect. Furthermore, the decisi ons of the m otions panels in O’Brien and Annex Medical are not binding on this Court. See In re Rodriquez , 258 F.3d 757, 759 (8th Cir. 2001); see also United States v. Henderson , 536 F.3d 776, 778 (7th Cir. 2008); Lambert v. Blackwell, 134 F.3d 506, 513 n.17 (3d Cir. 1997).1 Nonetheless, defendants acknowledge that, even if this Court were to agree with defendants and deny plaintiffs’ re quest for a prelim inary injunction, plaintiffs would likely then seek an inj unction pending appeal, which woul d likely be granted for the reasons already articulated by the motions panel in Annex Medical. See Annex Medical, No. 131118, Order at 5-6 (8th Cir. Fe b. 1, 2013) (granting plaintiffs’ motion for an injunction pending appeal, “consistent with the O’Brien order,” because “there is a si gnificant interest in uniform treatment of comparable requests for interim relief within this circuit”). Therefore, defendants do not oppose the entry of prelim inary injunctive re lief in favor of plaintiffs based on their Religious Freedom Restoration Act (“RFRA”) claim at this time, to last until one of the pending Eighth Circuit appeals is resolved o r until the S upreme Court issues a ruling in a substantially similar case.2 Defendants would suggest that th e preliminary injunction remain in effect until
1 In addition, the Third Circuit and the Sixth Circuit have reached different conclusions than the m otions panels in O’Brien and Annex Medical. See Conestoga Wood Specialties Corp. v. S ebelius, 724 F.3d 377 (3d Cir. 2013), petition for cert. pending; Autocam Corp. v. Sebelius, 730 F.3d 618 (6th Cir. 2013), petition for cert. pending.
2 Defendants note that there are fact ors in this case t hat may distinguish it from O’Brien and Annex Medical. Among other things, the individual plaintiff does not wholly own the company plaintiff. See Compl. ¶¶ 3, 50, ECF No. 1. Instead, there is at least one other shareholder who is not a plaintiff in this case. Id. Defendants nevertheless believe it would be prudent for the Court to await the Eighth Circuit’s views on the general legal issues presented in O’Brien, Annex Medical, before assessing the import of these differences, and others, in this case.
2

CASE 0:13-cv-03148-JNE-FLN Document 12 Filed 11/25/13 Page 3 of 5
thirty days after the first of these events occurs, to give the Court and the parties sufficient time to assess the impact of the Eighth Circuit’s or Supreme Court’s ruling on this case.
Defendants also respectfully ask this Court to stay all proceedings in this case pending the resolution of the ap peal in O’Brien or Annex Medical, or unless and until Suprem e Court issues a ruling in a sub stantially similar case, whichever o ccurs first.3 “[T]he power to s tay proceedings is incid ental to the pow er inherent in every cou rt to con trol the d isposition of the causes of its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgm ent, which must weigh competing interests and maintain an even balance. ” Landis v. N. Am. Co. , 299 U.S. 248, 254-55 (1936). In the O’Brien and Annex Medical appeals, the Eighth Circuit will be addressing legal issues that are substantially similar to those presented in this case, involving facts that are analogous to those in this case, challenging the sam e regulations that are challenged in this case, and raising claim s that are also largely indistinguishable from those in this case brought against the same defendants as those in this case. A mong the questions that the Eighth Circuit m ay very well decide are: (1) whether a for-profit, secular corporation can exercise religion under RFRA; (2) whether an obligation imposed on a corporat ion can be a substantial burde n on the corporation’s owners under RFRA; (3) whether any burden im posed on the corporation or its owners under the challenged regulations is too attenuated to qualify as “substantial” under RFRA; and (4) whether the challenged regulations are narrowly tailored to serve co mpelling governmental interests. Thus, even if the Eighth Circuit’s or the Suprem e Court’s ruling does not entirely dispose of this
3 Defendants note that the Eighth Circuit heard oral argument in O’Brien for October 24, 2013. Moreover, on September 19, 2013, the government filed a petition for a writ of certio rari from the en banc Tenth Circuit’s decision in Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013), another case in which the plaintiffs challenge the contraceptive co verage requirement as applied t o for-profit corporations and their owners. Petitions for certiorari are also pending in Conestoga and Autocam, Gilardi v. U.S. Dep’t of Health & Human Servs., --- F.3d ----, 2013 WL 5854246 (D.C. Cir. Nov. 1, 2013), and Eden Foods, Inc. v. Sebelius, 733 F.3d 626 (6th Cir. 2013), all of which raise issues similar to those presented here.
3

CASE 0:13-cv-03148-JNE-FLN Document 12 Filed 11/25/13 Page 4 of 5

case, the outcome of the appeals is likely to substantially affect the outcome of this litigation, and

the Court and the parties will undoubtedly benefit from Eighth Circuit’s or the Supreme Court’s

views.

If this case is not stayed , defendants will file a motion to dism iss the case f or failure to

state a claim. This motion will raise many of the same legal issues that are likely to be addressed

by the Eighth Circuit. It would be highly inefficient to spend the resources and time of the parties

and this Court for litigation to proceed on these issues simultaneously in both courts. See Ass’n

of Irritated Residents v. Fred Scha kel Dairy, 634 F. Supp. 2d 1081, 1094 (E.D. Cal. 2008)

(“[T]he district court has broad discretion to decide whether a st ay is appropriate to prom ote

economy of tim e and effort for itself, for counsel, and for litigan ts.”). Nor will there be any

prejudice to plaintiffs if the proceedings are stayed, as they will have the benefit of a preliminary

injunction during the pendency of the stay.

Finally, defendants note that se veral district courts—including the district court in Annex

Medical—have stayed proceedings in sim ilar circumstances in litig ation challenging the

preventive services coverage regulations. See, e.g., Order, Annex Medical, Inc. v. Sebelius , No.

12-cv-02804-DSD-SER (D. Minn. Jan. 25, 2013), ECF No. 53; Order, SMA, LLC v. Sebelius ,

No. 0:13-01375-ADM-LIB (D. Minn. Ju ly 8, 2013), ECF No. 14; Order, Hall v. Sebelius, No.

0:13-cv-00295 (D. Minn. Apr. 2, 2013), ECF No. 11.

For these reasons, defendants ask this Court to stay all proceedings in this case pending

resolution of the appea l in O’Brien or Annex Medical, or unless and until the Su preme Court

issues a ruling in a substantially similar case, whichever occurs first.

Respectfully submitted this 25th day of November, 2013,

STUART

F. DELERY Assistant Attorney General

4

CASE 0:13-cv-03148-JNE-FLN Document 12 Filed 11/25/13 Page 5 of 5

JOHN
SHEILA Deputy BRADLEY United Civil

R. MARTI Acting United States Attorney
JENNIFER RICKETTS Director
M. LIEBER Director
/s/ Bradley P. Humphreys P. HUMPHREYS (VA Bar No. 83212)
Trial Attorney States Department of Justice
Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7310 Washington, D.C. 20530 Tel: (202) 514-3367 Fax: (202) 616-8470 Email: bradley.p.humphreys@usdoj.gov
Attorneys for Defendants

5

 
 CASE 0:13-cv-03148-JNE-FLN Document 13 Filed 11/27/13 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

DOBOSZENSKI & SONS, INC. and DOUGLAS DOBOSZENSKI,
Plaintiffs,
vs
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services and her successor; and the UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES;
SETH D. HARRIS, in his official capacity as Acting Secretary of the United States Department of Labor and his successor; and the UNITED STATES DEPARTMENT OF LABOR;
JACOB LEW, in his official capacity as U.S. Secretary of the Treasury and his successor; and the UNITED STATES DEPARTMENT OF THE TREASURY, and
DANIEL I. WERFEL, in this official capacity as Acting Commissioner of Internal Revenue and his successor; and the INTERNAL REVENUE SERVICE,
Defendants.

Civil No. 13-3148 (JNE/FLN) PRELIMINARY INJUNCTION

CASE 0:13-cv-03148-JNE-FLN Document 13 Filed 11/27/13 Page 2 of 3
PRELIMINARY INJUNCTION Plaintiffs have filed a motion for preliminary injunction and stay in the abovereferenced case. (Dkt. No. 7) The Plaintiffs have filed a Local Rule 7.1 meet-and-confer statement indicating an agreement between the parties on the Plaintiffs’ proposed order. (Dkt. No. 9) Defendants have filed a document indicating the same. (Dkt. No. 12) Based on these filings, Defendants are preliminarily enjoined until thirty days after the mandate issues from the Eighth Circuit in O’Brien v. U.S. Dep’t of Health & Human Servs., No. 12-3357, or Annex Medical, Inc. v. Sebelius, No. 13-1118, or until the Supreme Court issues a ruling in a substantially similar case, whichever occurs first, from enforcing the contraceptive coverage requirement under 42 U.S.C. § 300gg-13(a)(4) and its implementing regulations1 against plaintiffs, its employees or any health insurance issuer when offering any group health insurance coverage to Doboszenski & Sons, Inc. without coverage for “All Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” as prescribed by a health care provider. See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines, available at http://www.hrsa.gov/womensguidelines (August 1, 2011), attached as Exhibit A hereto.2
1 75 Fed. Reg. 41,726, 41,728 (July 19, 2010) (interim final rules with request for comments); 76 Fed. Reg. 46,621, 46,621-26 (Aug. 3, 2011) (interim final rules with request for comments); 77 Fed. Reg. 8725, 8725-30 (Feb. 15, 2012) (final rules). 2 The U.S. Food and Drug Administration has approved currently the following contraceptive methods and sterilization procedures for women: female condom; diaphragm with spermicide; sponge with spermicide; cervical cap with spermicide; spermicide alone; oral contraceptives (combined pill) (“the Pill”); oral contraceptives (Progestin-only) (“the Mini Pill”); oral contraceptives (extended/continued use) (“the
2

CASE 0:13-cv-03148-JNE-FLN Document 13 Filed 11/27/13 Page 3 of 3

Further, if Doboszenski & Sons, Inc. adopts a self-insured plan under the Employee Retirement Income Security Act of 1974 (ERISA), which must also comply with the requirements of 42 U.S.C. § 300gg-13(a)(4) and its implementing regulations, Defendants are preliminarily enjoined until thirty days after the mandate issues from the Eighth Circuit in O’Brien or Annex Medical, whichever occurs first, from enforcing the contraceptive coverage requirement under 42 U.S.C. § 300gg-13(a)(4) and its implementing regulations against plaintiffs, its employees or any third party administrator when administering any self-insured plan for Doboszenski & Sons, Inc. without coverage for “All Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” as prescribed by a health care provider. Ex. A.3
All proceedings in this case are stayed pending resolution of the appeal in either O’Brien or Annex Medical, or until the Supreme Court issues a ruling in a substantial similar case, whichever occurs first.
IT IS SO ORDERED.

Date: November 27, 2013

s/Joan N. Ericksen JOAN N. ERICKSEN United States District Judge

Pill”); patch; vaginal contraceptive ring; shot/injection; Plan B, Plan B One-Step and Next Choice; Ella; Copper IUD; IUD with progestin; implantable rod; sterilization surgery for women and sterilization implant for women. See U.S. FDA Birth Control Guide, available at http://www.fda.gov/downloads/ForConsumers/ByAudience/ForWomen/FreePublications/ UCM282014.pdf (updated August 2012), attached as Exhibit B hereto. 3 See Note 2, supra.

3

 
 CASE 0:13-cv-03148-JNE-FLN Document 15 Filed 11/18/14 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MINNESOTA

________________________________

)

DOBOSZENSKI & SONS, INC., et al. ) Civil No. 13-3148 (JNE/FLN)

)

)

Plaintiffs,

)

)

v.

)

)

SYLVIA M. BURWELL, et al.,

)

)

Defendants.

)

________________________________ )

ORDER FOR 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 the joint stipulation of the parties, it is hereby ORDERED that the stay imposed on November 27, 2013, is lifted and defendants, their employees, agents, and successors in office are 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 plaintiff Doboszenski & Sons, Inc. to provide its 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. § 2590.715-

2713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv); and

CASE 0:13-cv-03148-JNE-FLN Document 15 Filed 11/18/14 Page 2 of 2

(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 plaintiff Doboszenski & Sons,

Inc., its employee health plan(s), the group health coverage provided in

connection with such plan(s), and/or Doboszenski & Sons, Inc.’s health

insurance issuers and/or third-party administrators with respect to Doboszenski

& Sons, Inc.’s 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 any petition or motion by plaintiffs for attorneys’ fees or costs

shall be submitted on or before 45 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 enacted or promulgated after this date, and

nothing herein prevents plaintiffs from filing a new civil action to challenge any such

future changes.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Date: November 18, 2014

s/Joan N. Ericksen_________________ JOAN N. ERICKSEN United States District Judge

2

 
 CASE 0:13-cv-03148-JNE-FLN Document 16 Filed 11/18/14 Page 1 of 2

UNITED STATES DISTRICT COURT
District of Minnesota

Doboszenski & Sons, Inc. and Douglas Doboszenski
v.

Plaintiffs,

Sylvia M. Burwell, United States Department of Health and Human Services, Seth Harris, United States Department of Labor, Jacob Lew, United States Department of the Treasury, Dan I. Werfel, and the Internal Revenue Service,

Defendant(s).

JUDGMENT IN A CIVIL CASE
Case Number: 13cv3148 JNE/FLN

Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
X Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED THAT:
The stay imposed on November 27, 2013, is lifted and defendants, their employees, agents, and successors in office are 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 plaintiff Doboszenski & Sons, Inc. to provide its 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. § 2590.715-2713(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 plaintiff Doboszenski & Sons, Inc., its employee health plan(s), the

CASE 0:13-cv-03148-JNE-FLN Document 16 Filed 11/18/14 Page 2 of 2

group health coverage provided in connection with such plan(s), and/or Doboszenski & Sons, Inc.’s health insurance issuers and/or third-party administrators with respect to Doboszenski & Sons, Inc.’s 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 any petition or motion by plaintiffs for attorneys’ fees or costs shall be submitted on or before 45 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 enacted or promulgated after this date, and nothing herein prevents plaintiffs from filing a new civil action to challenge any such future changes.

Date: November 18, 2014

RICHARD D. SLETTEN, CLERK

s/M. Price

(By)

M. Price, Deputy Clerk

 
 CASE 0:13-cv-03148-JNE-FLN Document 18 Filed 12/31/14 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MINNESOTA

________________________________

)

DOBOSZENSKI & SONS, INC., et al. ) Case No. 13-CV-3148 (JNE/FLN)

)

)

Plaintiffs,

)

)

v.

)

)

SYLVIA M. BURWELL, et al.,

)

)

Defendants.

)

________________________________ )

ORDER FOR EXTENSION OF TIME TO FILE PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS

In light of parties’ joint stipulation [Docket No. 17], it is hereby

ORDERED that the deadline for the filing of Plaintiffs’ motion for attorneys’ fees

and costs is extended by sixty days, until March 3, 2015.

Date: December 31, 2014

s/Joan N. Ericksen________________ The Honorable Joan N. Ericksen United States District Judge

 
 CLOSED,CV
U.S. District Court U.S. District of Minnesota (DMN) CIVIL DOCKET FOR CASE #: 0:13−cv−03148−JNE−FLN

Doboszenski & Sons, Inc. et al v. Sebelius et al Assigned to: Judge Joan N. Ericksen Referred to: Magistrate Judge Franklin L. Noel Cause: 28:2201 Constitutionality of State Statute(s)
Plaintiff

Date Filed: 11/14/2013 Date Terminated: 06/17/2015 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Doboszenski & Sons, 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

Plaintiff Douglas Doboszenski

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

V. Defendant Kathleen Sebelius in her official capacity as Secretary of the United States Department of Health and Human Services and her successor
Defendant United States Department of Health and Human Services

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 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
represented by Ann M Bildtsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Philip Humphreys (See above for address) LEAD ATTORNEY

Defendant Seth D. Harris in his official capacity as Acting Secretary of the United States Department of Labor and his successor
Defendant United States Department of Labor
Defendant Jacob Lew in his official capacity as U.S. Secretary of the Treasury and his successor
Defendant United States Department of the Treasury
Defendant Daniel I. Werfel in this official capacity as Acting Commissioner of Internal Revenue and his successor

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ann M Bildtsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Philip Humphreys (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
Bradley Philip Humphreys (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
Bradley Philip Humphreys (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
Bradley Philip Humphreys (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
Bradley Philip Humphreys (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant Internal Revenue Service

represented by Ann M Bildtsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Philip Humphreys (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 11/14/2013
11/15/2013 11/15/2013 11/20/2013 11/20/2013
11/20/2013
11/22/2013 11/22/2013 11/22/2013 11/22/2013

# Docket Text
1 COMPLAINT Verified Complaint for Declaratory and Injunctive Relief − Jury Trial Demanded against Seth D. Harris, Internal Revenue Service, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, Daniel I. Werfel. (Filing fee $400 receipt number 0864−3768144.) Filed by Douglas Doboszenski, Doboszenski & Sons, Inc. Filer requests summons issued. (Attachments: # 1 Civil Cover Sheet). (Kaardal, Erick) (Entered: 11/14/2013)
2 TEXT ONLY ENTRY: CLERK'S NOTICE OF INITIAL CASE ASSIGNMENT. Case assigned to Judge Joan N. Ericksen per Civil Rights−All Others List referred to Magistrate Judge Franklin L. Noel. Please use case number 13−cv−03148 (JNE/FLN). (lmb) (Entered: 11/15/2013)
3 Summons Issued as to Seth D. Harris, Internal Revenue Service, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, Daniel I. Werfel. (lmb) (Entered: 11/15/2013)
4 NOTICE of Appearance by Ann M Bildtsen on behalf of Seth D. Harris, Internal Revenue Service, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, Daniel I. Werfel. (Bildtsen, Ann) (Entered: 11/20/2013)
5 MOTION for Admission Pro Hac Vice for U.S. Government Attorney Bradley Philip Humphreys by Seth D. Harris, Internal Revenue Service, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, Daniel I. Werfel. (Bildtsen, Ann) (Entered: 11/20/2013)
6 TEXT ONLY ENTRY: ORDER granting 5 Motion for Admission of U.S. Government Attorney Bradley Philip Humphreys for Seth D. Harris,Internal Revenue Service,Jacob Lew, Kathleen Sebelius,United States Department of Health and Human Services, United States Department of Labor,United States Department of the Treasury, Daniel I. Werfel. Fee waived. Approved by Magistrate Judge Franklin L. Noel on 11/20/13. (MAP) (Entered: 11/20/2013)
7 MOTION for Preliminary Injunction and Stay − Expedited Handling Requested by Douglas Doboszenski, Doboszenski & Sons, Inc.. (Kaardal, Erick) (Entered: 11/22/2013)
8 NOTICE OF HEARING ON MOTION 7 MOTION for Preliminary Injunction and Stay − Expedited Handling Requested : at date and time to be determined. (Kaardal, Erick) (Entered: 11/22/2013)
9 MEET and CONFER STATEMENT re 7 Motion for Preliminary Injunction filed by Douglas Doboszenski, Doboszenski & Sons, Inc.. (Kaardal, Erick) (Entered: 11/22/2013)
10 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Douglas Doboszenski, Doboszenski & Sons, Inc. re 7 MOTION for Preliminary Injunction and Stay − Expedited Handling Requested (Kaardal, Erick) (Entered: 11/22/2013)

11/25/2013
11/25/2013 11/27/2013 11/14/2014
11/18/2014 11/18/2014 12/30/2014 12/31/2014

11 SUMMONS Returned Executed by Douglas Doboszenski, Doboszenski & Sons, Inc.. Seth D. Harris served on 11/15/2013, answer due 1/14/2014; Internal Revenue Service served on 11/15/2013, answer due 1/14/2014; Jacob Lew served on 11/15/2013, answer due 1/14/2014; Kathleen Sebelius served on 11/15/2013, answer due 1/14/2014; United States Department of Health and Human Services served on 11/15/2013, answer due 1/14/2014; United States Department of Labor served on 11/15/2013, answer due 1/14/2014; United States Department of the Treasury served on 11/15/2013, answer due 1/14/2014; Daniel I. Werfel served on 11/15/2013, answer due 1/14/2014. (Kaardal, Erick) (Entered: 11/25/2013)
12 NOTICE OF NON−OPPOSITION TO PLAINTIFFS' 7 MOTION FOR PRELIMINARY INJUNCTION AND STAY OF PROCEEDINGS by Seth D. Harris, Internal Revenue Service, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, Daniel I. Werfel − Expedited Handling Requested. (Humphreys, Bradley) Modified text on 11/26/2013 (lmb). (Entered: 11/25/2013)
13 ORDER granting 7 Motion for Preliminary Injunction. All proceedings in this case are STAYED pending resolution of the appeal in either O'Brien or Annex Medical, or until the Supreme Court issues a ruling in a substantial similar case, whichever occurs first. Signed by Judge Joan N. Ericksen on November 27, 2013. (Attachments: # 1 Exhibits) (CBC) (Entered: 11/27/2013)
14 STIPULATION for Entry of Judgment and Injunction in Favor of Plaintiffs and Stipulation for Fee Motion Briefing Schedule by Douglas Doboszenski, Doboszenski & Sons, Inc.. Jointly Signed by Sylvia M. Burwell, United States Department of Health and Human Service, Seth D. Harris, United States Department of Labor, Jacob Lew, United States Department of the Treasury, Daniel I. Werfel, and Internal Revenue Service. (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 2)(Kaardal, Erick) (Entered: 11/14/2014)
15 ORDER re 14 Stipulation for Entry of Judgment and Injunction in Favor of Plaintiffs and Stipulation for Fee Motion Briefing Schedule filed jointly by the parties. Signed by Judge Joan N. Ericksen on November 18, 2014. (CBC) (Entered: 11/18/2014)
16 JUDGMENT (Attachments: # 1 Civil Notice − appeal)(MMP) (Entered: 11/18/2014)
17 STIPULATION for Extension of Time to File Plaintiffs' Motion for Attorneys' Fees and Costs by Seth D. Harris, Internal Revenue Service, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, Daniel I. Werfel. Jointly Signed by Doboszenski & Sons, Inc. and Douglas Doboszenski. (Humphreys, Bradley) (Entered: 12/30/2014)
18 ORDER re 17 Stipulation, filed by United States Department of the Treasury, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, Seth D. Harris, United States Department of Labor, Internal Revenue Service, Daniel I. Werfel. Signed by Judge Joan N. Ericksen on December 31, 2014. (CBC) (Entered: 12/31/2014)