Professional Documents
Culture Documents
Motion To Clarify
Motion To Clarify
Defendants, through undersigned counsel, respectfully move the Court to clarify that its
January 31, 2011, declaratory judgment does not relieve the parties of their rights and obligations
under the Affordable Care Act while the declaratory judgment is the subject of appellate review.
In accordance with Local Rule 7.1(B), defendants’ counsel conferred with plaintiffs’
counsel to request their position on this motion. Plaintiffs indicated that they oppose.
memorandum.
TONY WEST
Assistant Attorney General
THOMAS F. KIRWIN
United States Attorney
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SHEILA LIEBER
Deputy Director
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This Court has held that Congress lacked authority to enact the minimum coverage
provision of the Patient Protection and Affordable Care Act (“Affordable Care Act,” “ACA,” or
the “Act”).1 The Court has also held that the provision is not severable from the remainder of the
statute, and that therefore “the entire Act must be declared void.” Order Granting Summ. J.
(“Op.”) 76 [Doc. No. 150]. The Court’s declaratory judgment potentially implicates hundreds of
provisions of the Act and, if it were interpreted to apply to programs currently in effect, duties
currently in force, taxes currently being collected, and tax credits that may be owed at this time
or in the near future, would create substantial uncertainty. Because of the sweeping nature of the
declaratory judgment, such an interpretation would pose a risk of substantial disruption and
hardship for those who rely on the provisions that have already been implemented.
1
Pub. L. No. 111-148, 124 Stat. 119 (2010), as amended by Health Care and Education
Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (2010).
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Defendants will appeal both the Court’s judgment and the rulings that underlie it. This
motion respectfully asks the Court to clarify the scope of its order, in particular that its
declaratory judgment does not relieve the parties to this case of any obligations or deny them any
rights under the Affordable Care Act while the judgment is the subject of appellate review, or, if
the Court anticipated otherwise, to address specifically what the Court intends the parties’
obligations and rights to be under the judgment while appellate review is pending.
1. The minimum coverage provision does not take effect until 2014 and thus creates
no immediately enforceable obligations or rights with respect to any of the parties. As the Court
observed, however, the Act “has approximately 450 separate pieces,” Op. 73, many of which are
currently in effect. The Court did not find that these other provisions of the ACA violate the
Constitution; indeed, the Court expressly rejected plaintiffs’ arguments that several other
provisions of the Act are unconstitutional. The Court’s opinion also recognized that “many . . .
provisions in the Act can stand independently without the individual mandate.” Op. 74. For
example, the Court stated that “there is little doubt that the provision in the Act requiring
employers to provide a ‘reasonable break time’ and separate room for nursing mothers to go and
express breast milk [Act § 4207] can function without the individual mandate.” Op. 65.
Nevertheless, the Court’s judgment declares the entire Act unconstitutional because, in its view,
there “are simply too many moving parts in the Act and too many provisions dependent (directly
and indirectly) on the individual mandate and other health insurance provisions . . . for me to try
and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-
In holding that the entire Act must “stand or fall as a single unit” and thereby declaring
all provisions of the ACA invalid, the Court expressly acknowledged that it was deviating from
2
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the “‘normal rule’ that reviewing courts should ordinarily refrain from invalidating more than the
unconstitutional part of a statute.” Op. 74. The Court observed that “[s]everability is a doctrine
of judicial restraint,” and that “just this past year,” the Supreme Court reaffirmed that courts
should “‘try to limit the solution to the problem,’ severing any ‘problematic portions while
leaving the remainder intact,’” and that the “‘normal rule’ is that partial invalidation is proper.”
Op. 64 (quoting Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3161
(2010)). At the same time, the Court correctly noted that its decision to nonetheless invalidate
In addition, this Court recognized that two other district courts have upheld the minimum
coverage provision, which is the only provision that this Court held to be beyond the reach of
Congress’s power. The minimum coverage provision does not take effect until 2014, and the
Court’s decision casts no doubt on the constitutionality of any of the individual statutory
provisions that are in effect now or will become effective before 2014. (Indeed, those provisions
that are already in effect can clearly stand alone because they have become operative years
before the minimum coverage provision takes effect.) The only other court to hold the minimum
coverage provision invalid rejected the contention that it should declare the Act invalid in its
entirety and did not enter an injunction. Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d
768 (E.D. Va. 2010).2 That court explained that “[i]t would be virtually impossible within the
present record to determine whether Congress would have passed this bill, encompassing a wide
2
Appellate review of the decisions that were issued prior to this Court's judgment is
already proceeding on an expedited basis. The Fourth Circuit has calendared oral argument in
Virginia ex rel. Cuccinelli v. Sebelius, Nos. 11-1057, 11-1058 (4th Cir.), and Liberty University
v. Geithner, No. 10-2347 (4th Cir.), for its May 2011 sitting, and the Sixth Circuit has granted
the parties’ request to hear Thomas More Law Center v. Obama, No. 10-2388 (6th Cir.), during
its May 30–June 10, 2011, session.
3
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variety of topics related and unrelated to heath care, without Section 1501,” and “[e]ven then, the
Given (a) the wide-ranging and indeterminate consequences that would occur if the
declaratory judgment were assumed to have immediate injunction-like effect; (b) the Court’s
acknowledgment that it was deviating from the “‘normal rule’” of severability; (c) the
concededly unique nature of the Court’s judgment, see, e.g., Op. 74 (“This is not a situation that
is likely to be repeated.”); and (d) the fact that the Court declined to impose an injunction, see
Op. 75, defendants do not interpret the Court’s order as requiring them to immediately cease
providing tax credits, and enforcing duties created by the ACA with regard to the plaintiff states,
2. Despite expressly declining to impose an injunction, the Court noted that “there is
a long-standing presumption ‘that officials of the Executive Branch will adhere to the law as
declared by the court. As a result, the declaratory judgment is the functional equivalent of an
542 F.3d 909, 911 (D.C. Cir. 2008)). This general point is not drawn into issue by this motion to
clarify. Indeed, defendants’ opposition to plaintiffs’ summary judgment motion noted the same
presumption. Defs.’ Opp’n to Pls.’ Mot. for Summ. J. 43 [Doc. No. 137].
However, defendants’ opposition brief went on to note that this injunction-like effect of a
declaratory judgment against defendants here would apply “after appellate review is exhausted.”
Id. (emphasis added). In other declaratory judgment cases, pending appellate review, “the
Government has been free to continue to apply [a] statute” following entry of a declaratory
4
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judgment. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 155 (1963); accord, e.g., Carreno v.
Johnson, 899 F. Supp. 624, 628 (S.D. Fla. 1995) (“[a]bsent an injunctive sanction, a district
court’s declaration that a statute is unconstitutional does not bar the government from continuing
to apply the statute pending review by the Court of Appeals and the . . . Supreme Court”).
Mendoza-Martinez contrasted that rule for declaratory relief with the different immediate
consequences of an injunction, under which “a single federal judge” could “paralyze totally the
operation of an entire regulatory scheme, either state or federal, by issuance of a broad injunctive
That point has particular force here given the sweeping nature of the Court’s declaratory
judgment, which, although finding only one provision of the Act unconstitutional — the
minimum coverage provision, which does not go into effect until 2014 and which the
government thus would not enforce pending appeal in any event — proceeds to declare the rest
of the Act inseverable and therefore invalid on that distinct ground. Miers, by contrast,
presented a narrow and focused issue concerning compliance with a specific subpoena that
purported to create a legal duty that was challenged (as was the declaratory judgment) on
constitutional grounds. 542 F.3d at 910. And in the other case cited by the Court, Sanchez-
Espinoza v. Reagan, 770 F.2d 202, 208 & n.8 (D.C. Cir. 1985) (Scalia, J.), the D.C. Circuit
relied on a parallel between declaratory and injunctive relief in concluding that intrusive
declaratory relief should not have been entered in the first place. Consistent with the concededly
unique nature of the Court’s judgment, defendants are not aware of any past examples of a court
relying on a general presumption that the government would adhere to the legal rulings in a
declaratory judgment to conclude that the government would immediately halt implementation
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of so many statutory provisions with respect to so many plaintiffs, and indirectly affecting so
As such, the critical point this motion addresses is one of timing, which the Court’s
opinion and judgment do not clearly address. In particular, we do not understand the Court’s
declaratory judgment of its own force to relieve the parties to this case of any obligations or deny
them any rights under the Act while appellate review is pending. Many of the plaintiff states
have publicly affirmed a similar view.3 But, if defendants are wrong about what the Court
anticipated, all parties must know that in determining specifically how to proceed while appellate
review is pending.
Defendants therefore respectfully request that the Court confirm that its declaratory
judgment does not in itself automatically and in a self-executing manner relieve the parties of
their obligations or rights under the Affordable Care Act while appellate review is pending.
3
Amy Goldstein & N.C. Aizenman, State Officials Divided on Meaning of Judge’s
Health-Care Ruling, Wash. Post, Feb. 1, 2011 (“Meanwhile, the governors of Georgia, Iowa and
Mississippi said through spokesmen that they did not think the court decision gave them license
to stop work on the law, in part because the ruling is destined to be appealed to higher courts,”
and quoting Georgia Governor Nathan Deal as stating that “[w]e’ll be required to move forward
until such time relief is granted or an appellate decision is finalized”), available at http://www.
washingtonpost.com/wp-dyn/content/article/2011/02/01/AR2011020105041.html; Andrew M.
Harris & Margaret Cronin Fisk, Health-Care Law Goes to Appeals Courts, States Weigh
Enforcement, Bloomberg News, Feb. 2, 2011 (quoting Ohio Attorney General Mike DeWine as
stating “[w]e don’t think we can advise that this law is void”), available at http://www.
bloomberg.com/news/2011-02-01/health-care-law-goes-to-appeals-courts-as-states-differ-on-
statute-s-scope.html; David Wahlberg, Walker Accepts $38m to Create Health Care Exchange,
Wisc. State Journal, Feb. 16, 2011 (Wisconsin “Gov. Scott Walker is accepting nearly $38
million from the federal health care reform law to create a health care exchange, even though he
has said he opposes the law”), available at http://host.madison.com/wsj/news/local/ health_med_
fit/article_8640ead4-3a08-11e0-aacc-001cc4c03286.html. But see Kevin Sack et al., States
Diverge on How to Deal With Health Care Ruling, N.Y. Times, Feb. 2, 2011, at A16 (quoting
state attorney general J. B. Van Hollen as stating, “[e]ffectively, Wisconsin was relieved of any
obligations or duties that were created under terms of the federal health care law”), available at
http://www.nytimes.com/2011/02/02/health/policy/02states.html (all Internet addresses last
visited February 17, 2011).
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a. The Affordable Care Act provides tax credits to eligible small businesses that
beginning in tax year 2010. See ACA § 1421(a). Clarification would confirm defendants’ view
that the Court did not anticipate that its declaratory judgment would relieve the parties to this
case of any obligations or deny them any rights under the Act, and that the federal government
may continue to make these tax credits available to eligible small businesses among the hundreds
b. More than 20 sections of the ACA effected changes to Medicare payment rates
for 2011, including extensions of a number of payment adjustments (such as add-on payments
and exceptions to payment caps) that pre-date the ACA. These changes have already been
incorporated through notice and comment rulemaking into Medicare payment regulations and
implemented through edits to nearly every major Medicare claims processing system, including
4
NFIB claims to have more than 350,000 members as of August 2010. See Kathy
Barber, Legislative Director, NFIB/Texas, Testimony Before the Committee on Ways & Means,
Texas House of Representatives (Aug. 17, 2010), available at http://www.nfib.com/nfib-in-my-
state/nfib-in-my-state-content?cmsid=52329.
5
With respect to the many tax provisions of the ACA that this Court’s order would seem
to reach as a result of its severability ruling, serious questions concerning jurisdiction are raised
because of the Anti-Injunction Act, 26 U.S.C. § 7421(a), and the injunction exception to the
Declaratory Judgment Act, 28 U.S.C. § 2201(a). This Court’s holding that the minimum
coverage provision is not a tax and so may be challenged notwithstanding those jurisdictional
provisions, Order & Mem. Op. 7-30 (Oct. 14, 2010) [Doc. No. 79], does not imply that
provisions of the ACA that the Court did recognize as taxes, see, e.g., id. at 19-20; Op. 73, may
also be enjoined or even declared invalid.
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those for inpatient services, outpatient services, and physician services.6 To attempt at this
juncture to devise an alternative, pre-ACA rate structure for plaintiff state-owned or operated
Medicare providers (and NFIB member Medicare providers) would impose staggering
administrative burdens on HHS and its fiscal intermediaries, and could cause major delays and
errors in the payment of the roughly 100 million Medicare claims processed each month.
Clarification would confirm defendants’ view that the Court did not anticipate an interpretation
that could yield these highly disruptive consequences, especially since there are procedures
under the Medicare program for reconciliation of payments at the end of a cost year for certain
c. To prevent fraud and waste in the Medicaid program, the ACA required all states,
by the end of 2010, to enter into contracts with auditors (“Recovery Audit Contractors”) to
identify incorrectly paid claims and to recoup overpayments. See ACA § 6411. Moreover, the
6
75 Fed. Reg. 73170 (Nov. 29, 2010) (changes to physician fee schedule and other
revisions to Medicare Part B for calendar year 2011); 75 Fed. Reg. 71800 (Nov. 24, 2010)
(changes to outpatient prospective payment system effective January 1, 2011); 75 Fed. Reg.
50042 (Aug. 16, 2010) (revising Medicare hospital inpatient prospective payment system for
federal fiscal year 2011).
7
These Medicare payment provisions were not challenged by plaintiffs or discussed by
the parties, and the inclusion of those provisions in the Court’s declaration that the entire Act is
invalid also raises substantial jurisdictional issues. Ordinarily, a provider — including a plaintiff
state-owned or operated provider or NFIB member provider — challenging a Medicare statute,
regulation, or payment decision must proceed through the special procedures designed by
Congress for the precise purpose of channeling such challenges. E.g., Shalala v. Ill. Council on
Long Term Care, 529 U.S. 1 (2000); Weinberger v. Salfi, 422 U.S. 749 (1975) (applying similar
bar to require such channeling of challenge to constitutionality of statutory provision); see
generally Pub. Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 246 (1952) (“[T]he
declaratory judgment procedure will not be used to preempt and prejudge issues that are
committed for initial decision to an administrative body or special tribunal any more than it will
be used as a substitute for statutory methods of review.”).
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investigation into a credible allegation of fraud is pending, unless good cause exists not to. See
ACA § 6402(h)(2). Clarification of the anticipated effect of the declaratory judgment would
confirm that these anti-fraud measures remain fully effective in the plaintiff states, protecting the
d. Twenty-five plaintiff states (all but Alaska) have applied for and been awarded
federal grants to begin to take measures to ensure that their exchanges will be operational by
2014. See ACA § 1311(a). Clarification that the Court did not anticipate that the declaratory
judgment would have an immediate effect on the duty of the Secretary and these plaintiff states
to carry out their grant agreements, will confirm that these plaintiff states can continue to use the
more than $24 million already made available to them, and that they can continue to apply for
e. Twelve plaintiff states have contracted with HHS to run federally funded
high-risk insurance pools (Pre-existing Condition Insurance Plan, or PCIP, programs) established
pursuant to the Affordable Care Act. See ACA § 1101. These pools provide coverage to eligible
Americans who have been uninsured for more than 6 months because of a pre-existing condition.
Clarification of the declaratory judgment’s anticipated effect will confirm that these plaintiff
states may continue to administer these pools under the Act to provide coverage for their most
high-risk citizens, thus avoiding potential coverage disruptions for current enrollees.
f. In their role as employers, most plaintiff states sponsor their own group health
plans. Thus, they are subject to ACA provisions already in effect that, for example, generally
require insurers to offer parents the option to keep children on their plans until age 26, bar
insurers from placing lifetime limits on the dollar value of coverage, and prohibit insurers from
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application. See ACA § 1001. Clarification of the anticipated effect of the declaratory judgment
will confirm that millions of participants in these plans — employees of these plaintiff states and
their families, who are not parties to this suit — are not deprived of coverage or denied benefits
g. All plaintiff states, either as employers or through at least one state entity,
currently participate in the ACA’s Early Retiree Reinsurance Program (“ERRP”). See ACA
§ 1102. Early retirees are often ineligible for coverage from their former employers, but are too
young to qualify for Medicare and too old, or too ill, to obtain coverage in the individual market.
To encourage employers to continue coverage to early retirees and their families, the Act
provides for $5 billion in ERRP subsidies through 2013. These subsidies reimburse 80 percent
of the costs of certain medical claims of early retirees and their family members. Clarification of
the anticipated effect of the declaratory judgment will confirm that funding under this program
may continue to be provided to the plaintiff states, as well as to NFIB members that elect to
h. All 50 states have applied for and received funding under the ACA’s Maternal,
Infant, and Early Childhood Home Visiting Program, which appropriates $1.5 billion in funding
over five years for states to deliver health care and other social services — such as prenatal care
and domestic violence prevention — to families in at-risk communities who lack other resources.
See ACA § 2951. In fiscal year 2010, for example, Florida was allocated $3.4 million, Michigan
$2.1 million, and Pennsylvania $2.2 million. Clarification that the anticipated effect of the
declaratory judgment was not to require that such funding be halted will confirm that the
plaintiff states have continued access to grants under this program to help families at great risk of
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i. Twenty-two plaintiff states have been awarded a total of $22 million in grants to
create or improve state oversight of health insurance premium increases. See ACA § 1003.8
Clarification of the anticipated effect of the declaratory judgment will confirm that these plaintiff
states may continue to use these grants (and to apply for $204 million in grants that have yet to
j. Thirteen plaintiff states have been awarded over $11.1 million in grants pursuant
to the Act’s Consumer Assistance Program, which authorizes and appropriates funding for states
to help consumers navigate the health care market by, for example, facilitating enrollment in
health plans and assisting with complaints and appeals against insurers. See ACA § 1002.9
Clarification of the anticipated effect of the declaratory judgment will confirm that these plaintiff
4. The fact that the Court did not consider with specificity the entities entitled to
invoke the Court’s judgment, cf. Fed. R. Civ. P. 65(d), further suggests that it did not anticipate
that its declaratory order would have immediate injunction-like effect. Non-parties are of course
not entitled to the benefits of a judgment against the government, see United States v. Mendoza,
464 U.S. 154 (1984), but neither are nominal parties who lack standing, see Allen v. Wright, 468
8
By letter dated February 1, 2011, Florida’s State Insurance Commissioner advised HHS
that Florida was rescinding its earlier acceptance of a $1 million rate review grant award and that
it would not draw down any of this amount.
9
On February 10, 2011, Wisconsin advised HHS that it would be returning a $238,000
Consumer Assistance Program grant that it had been awarded by HHS.
10
The recitation above identifies only some provisions of the Act that are currently in
effect and are being implemented. Issues concerning some other provisions of the Act that are
not yet in effect or that have not given rise to any concrete disputes are not ripe for consideration
here, and, in any event, may have their own special statutory procedures for administrative and
judicial review in which the application of the ACA should be considered in the first instance.
See, e.g., 42 U.S.C. § 1316 (special review procedures for proposed amendments to state plans).
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U.S. 737, 752 (1984) (Article III standing limitations are designed “to ascertain whether the
added). Here, the Court did not address whether 24 of the 26 plaintiff states have standing to
challenge the minimum coverage provision. The Court addressed the standing of only two
plaintiff states with regard to the minimum coverage provision, finding that Utah and Idaho had
standing because they had enacted statutes before the ACA became law that arguably conflict
with the minimum coverage provision. Op. 18. The Court’s opinion thus did not address
whether the other plaintiff states — many of which do not have comparable statutes — had
Article III standing and on what basis. The Court observed that to resolve the merits of the legal
issue it was sufficient to find that some plaintiffs had standing. That the Court found that it had
jurisdiction to resolve the merits of the legal issue as to at least one party does not, however,
address its authority to grant relief to any, much less all, other parties. The Court’s not having
addressed with specificity the issue of who is subject to the declaratory judgment further
suggests that it was not anticipated that it would provide immediate injunction-like relief
pending appeal.
declaratory judgment is interpreted to apply to provisions already in effect. Aside from Mary
Brown and a handful of other declarants — who claimed standing and rested their constitutional
challenge on the basis of the asserted impact on them of the minimum coverage provision, which
does not go into effect until 2014 — defendants do not know who were NFIB members at the
time the First Amended Complaint was filed such that they may be affected by the judgment (for
example, NFIB members may be unable to receive tax credits available to small businesses, see
supra ¶ 3(a)). That the Court did not address this issue or any matters concerning the tax credit
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(or other provisions that would affect some or all parties) suggests that it did not anticipate that
5. In issuing a broad declaratory judgment, the Court was aware that its ruling would
have “indeterminable implications.” Op. 76. The Court gave no indication, however, that it
intended or anticipated the specific potential disruptions of ongoing programs and operations
(discussed above) and the questions that would arise about which parties are bound by the
Court’s order while the appellate courts resolve constitutional challenges to the Affordable Care
Act. And despite its clear recognition of the complexity of the ACA and the difficulty in
determining how the reasoning of its declaratory judgment would affect existing programs, this
Court expressly declined to grant “injunctive relief enjoining implementation of the Act.” Op.
75-76.
If the Court had entered an injunction, its order would have been required to be “specific
in terms” and to “describe in reasonable detail, and not by reference to the complaint or other
document, the act or acts sought to be restrained.” Fed. R. Civ. P. 65(d). That requirement is
“‘designed to prevent precisely the sort of confusion’” that can arise from a vague district court
order. Gunn v. Univ. Comm. to End the War in Vietnam, 399 U.S. 383, 389 (1970) (quoting Int’l
Longshoremen’s Ass’n v. Philadelphia Marine Trade Ass’n, 389 U.S. 64, 74 (1967)). Given the
“extraordinary” nature of an injunctive order, Congress required “‘that a federal court frame its
orders so that those who must obey them will know what the court intends to require and what it
means to forbid.’” Id. (quoting Int’l Longshoremen’s Ass’n, 389 U.S. at 76). The Supreme
Court has observed that this requirement is especially “vital” in cases concerning the validity of
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Moreover, before the Court could have entered an injunction barring the federal
government from implementing any of the provisions of the Act, it would have been required to
apply the familiar four-factor test, which consists of not only the likelihood of success on the
merits, but also the respective equities of the parties and where the public interest lies, including
an injunction’s effect on parties not before the Court. Similarly, even if the Court had
anticipated that its declaratory judgment would serve as the functional equivalent of an
injunction during the pendency of an appeal (which, in defendants’ view, it did not), it would
have had to satisfy the “equivalen[t] . . . criteria for issuance,” including the requirements for
issuance of equitable relief. Sanchez-Espinoza, 770 F.2d at 208 n.8; cf. Samuels v. Mackell, 401
U.S. 66, 72 (1971) (where federal declaratory judgment would result in “interference with and
disruption of state proceedings,” “the propriety of declaratory and injunctive relief should be
judged by essentially the same standards”). These omissions are additional reasons why
defendants do not understand the Court’s order to have immediate injunction-like effect.
6. Clarification that the Court anticipated that its declaratory judgment would not
affect the parties’ rights and obligations until after the conclusion of appellate review will also
shape the contours of further litigation of this case, both here and in the appellate courts. As
outlined above, a contrary understanding would threaten serious harm to many Americans
currently benefitting from provisions of the Affordable Care Act that are already in effect and
would significantly interfere with defendants’ statutory duty to implement the Act as Congress
directed. Defendants do not understand the Court to have anticipated that its judgment would
operate in that self-executing manner to halt the operation of the Act as to all plaintiffs,
especially since numerous provisions of the ACA clearly benefit the plaintiffs, or affect third
parties not before the Court. Defendants therefore move the Court to clarify that its judgment
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indeed does not, pending appellate review, relieve the parties to this case of any rights or
If the Court disagrees with defendants’ understanding and instead issues an order stating
that it did, in fact, anticipate its judgment to have immediate injunction-like effect, defendants
will consider how to respond pending appellate review, including whether to seek a stay pending
appeal. Otherwise, defendants will proceed based on their understanding of the judgment as
reflected above.
CONCLUSION
For the foregoing reasons, defendants respectfully request that the Court clarify that its
January 31, 2011, declaratory judgment does not relieve the parties of their rights and obligations
under the Affordable Care Act while the declaratory judgment is the subject of appellate review.
TONY WEST
Assistant Attorney General
THOMAS F. KIRWIN
United States Attorney
SHEILA LIEBER
Deputy Director
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Washington, DC 20530
Telephone: (202) 514-3338
Facsimile: (202) 616-8470
E-mail: [email protected]
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CERTIFICATE OF SERVICE
I hereby certify that on February 17, 2011, the foregoing document was filed with the
Clerk of Court via the CM/ECF system, causing it to be served on Plaintiffs’ counsel of record.