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Judicial Watch • 2 28 14 Kawa Appeal 10296

2 28 14 Kawa Appeal 10296

2 28 14 Kawa Appeal 10296

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Category:Lawsuit

Number of Pages:38

Date Created:February 27, 2014

Date Uploaded to the Library:February 28, 2014

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CERTIFICATE INTERESTED PERSONS 
AND CORPORATE DISCLOSURE STATEMENT 
 
 Pursuant Eleventh Circuit Rules 26.1-1, 26.1-2, and 26.1-3, counsel for Appellant Kawa Orthodontics, LLP, Judicial Watch, Inc., certifies that the following complete list the persons and entities who have interest the outcome this case: 
 Michael Bekesha  Counsel for Appellant. 

 Hon. William Dimitrouleas  U.S. District Court Judge, U.S. District Court for the Southern District Florida. 

 Internal Revenue Service  Appellee. 

 Kawa Orthodontics, LLP  Appellant.  Kawa Orthodontics, LLP has parent corporation, and publicly held corporation owns 10% more Kawa Orthodontics, LLP. 

 Jack Lew, Secretary the U.S. Department the Treasury  Appellee. 

 Christopher Lunny  Counsel for Appellant. 

 Paul Orfanedes  Counsel for Appellant. 

 Dana Martin  Counsel for Appellees. 

 James Peterson  Counsel for Appellant. 

 Mark Stern  Counsel for Appellees. 

 Harry Thomas  Counsel for Appellant. 

 U.S. Department the Treasury  Appellee. 

 Daniel Werfel, Acting Commissioner the Internal Revenue Service  Appellee. 

 Caroline Lewis Wolverton  Counsel for Appellees. 

 
Dated:  February 27, 2014 Michael Bekesha  
  
STATEMENT REGARDING ORAL ARGUMENT 
 Appellant respectfully requests oral argument.  The issue this case  whether Appellant has standing challenge Defendants unlawful, unilateral delay the employer mandate provisions the Patient Protection and Affordable Care Act  considerable importance, and oral argument likely assist the Court deciding this appeal. 
  
TABLE CONTENTS 
 
 
CERTIFICATE INTERESTED PERSONS 
AND CORPORATE DISCLOSURE STATEMENT ................................................ 
STATEMENT REGARDING ORAL ARGUMENT ............................................. iii 
TABLE CONTENTS .......................................................................................... 
TABLE CITATIONS ......................................................................................... 
JURISDICTIONAL STATEMENT .......................................................................... 
STATEMENT THE ISSUE ................................................................................. 
STATEMENT THE CASE .................................................................................. Nature the Case ................................................................................. 
 II. The Course the Proceedings.............................................................. 
 III. The District Courts Ruling ................................................................... 
 IV. Statement Facts ................................................................................. Statutory Background ................................................................. Factual Background .................................................................... Standard Review ............................................................................... 
SUMMARY THE ARGUMENT ........................................................................ 
ARGUMENT ............................................................................................................. The Three Familiar Requirements Standing ..................................... 
 II. Kawa Ortho Plainly Has Standing ........................................................ Injury-in-fact under Florida U.S. Dept Health and Human Servs. ....................................................... Injury-in-fact under other, well-established  
   case law ..................................................................................... Opportunity costs also constitute injury-in-fact ....................... Kawa Ortho amply pled injury-in-fact ...................................... Kawa Ortho amply pled causal connection .............................. Kawa Ortho amply pled redressability ..................................... 
 III. Defendants Delay the Employer Mandate 
  Unlawful Under the APA .................................................................... 
CONCLUSION ........................................................................................................ 
CERTIFICATE COMPLIANCE 
CERTIFICATE SERVICE 
  
TABLE CITATIONS 
CASES                   PAGE 
Association Private Sector Colls. Univs. Duncan, 681 F.3d 427 (D.C. Cir. 2012) .................................................... 
Bischoff Osceola Cnty., 222 F.3d 874 (11th Cir. 2000) ......................................... 
Board Governors the Fed. Reserve Sys.  
 Dimension Fin. Corp., 474 U.S. 361, 106 Ct. 681 (1986) .................. 19, 
Bochese Town Ponce Inlet,  
 405 F.3d 964 (11th Cir. 2005) ............................................................. 10, 
Calvey Obama, 792 Supp. 1262 (W.D. Okla. 2011) ................................... 
CBS Primetime J.V., 
 245 F.3d 1217 (11th Cir. Fla. 2001) ........................................................ 22, 
Chevron U.S.A. Inc. Natural Res. Def. Council, Inc., 
 467 U.S. 837, 104 Ct. 2778 (1984) ............................................... 19, 20, 
Chronister Oil Co. Unocal Ref. and Mktg., F.3d 462 (7th Cir. 1994) ........................................................................... 
Financial Planning Assn Sec. and Exch. Commn, 
 482 F.3d 481 (D.C. Cir. 2007) ................................................................. 20, 
Florida U.S. Dept Health and Human Servs.,  
 648 F.3d 1235 (11th Cir. 2011) ................................................................. 
Florida U.S. Dept Health and Human Servs., 
 780 Supp. 1256 (N.D. Fla. 2011) ............................................... 10, 
Florida. U.S. Dept Health and Human Servs., 
 716 Supp. 1120 (N.D. Fla. 2010) ......................................................... 
Focus the Family Pinellas Suncoast Transit Auth.,  
 344 F.3d 1263 (11th Cir. 2003) ....................................................................... 
Gaudy-Bachman U.S. Dept Health and  
 Human Servs., 764 Supp. 684 (M.D. Pa. 2011) ................................... 
Harry Marchant, 291 F.3d 767 (11th Cir. 2002) ................................................. 
Hotze Sebelius, 2014 U.S. Dist. LEXIS 3149 
 (S.D. Tex. Jan. 10, 2014) ......................................................................... 11, 
Houston Marod Supermarkets, Inc., 
 2013 U.S. App. LEXIS 22232 (11th Cir. 2013) .......................................... Aiken County, 725 F.3d 255 (D.C. Cir. 2013) .................................... 20, 23, 
Liberty University, Inc. Lew,  
 733 F.3d (4th Cir. 2013) ........................................................................... 
Lujan Defenders Wildlife,  
 504 U.S. 555, 112 Ct. 2130 (1992) ......................................................... 
Mead Holder, Supp. (D.D.C. 2011) ...................................... 12, 13, 
N.Y. Civil Liberties Union Grandeau,  
 528 F.3d 131 (2d Cir. 2008) .......................................................................... 
National Fed. Indep. Bus. Sebelius,  
 132 Ct. 2566 (2012) ................................................................................... 
National Rifle Assn Magaw,  
 132 F.3d 272 (6th Cir. 1997) ......................................................................... 
Northeastern Fla. Chapter Associated Gen.  
 Contractors Am. Jacksonville, 
 508 U.S. 656, 113 Ct. 2297 (1993) ............................................................. 
Oklahoma Sebelius,  
 2013 U.S. Dist. LEXIS 113232  
 (E.D. Okla. Aug. 12, 2013) ............................................................................ 
Roman Catholic Archdiocese Sebelius, 
 907 Supp. 310 (E.D.N.Y. 2012) ........................................................... 
Shotz Cates, 256 F.3d 1077 (11th Cir. 2001) ..................................................... 
Silva-Hernandez U.S. Bureau Citizenship Immigration Servs., 701 F.3d 356 (11th Cir. 2012) ............................ 20, 
State Farm Mut. Auto Ins. Co. Dole,  
 802 F.2d 474 (D.C. Cir. 1986) ....................................................................... 
Thomas Cooper Lighting, Inc.,  
 506 F.3d 1361 (11th Cir. 2007) ..................................................................... 
Thomas More Law Ctr. Obama,  
 720 Supp. 882 (E.D. Mich. 2010) .................................................. 14, 
Toro Secy, 707 F.3d 1224 (11th Cir. 2013) ........................................................ 
Village Barrington Surface Transp. Bd.,  
 636 F.3d 650 (D.C. Cir. 2011) ....................................................................... 
Virginia Am. Booksellers Assn, 
 484 U.S. 383 (1988)....................................................................................... 
STATUTUES, RULES, AND REGULATIONS U.S.C.  706(2)(A)  ................................................................................... 18, 21, U.S.C.  706(2)(B)  ................................................................................... 18, 21, U.S.C.  706(2)(C)  ................................................................................... 18, 21, U.S.C.  4980H ..................................................................................................... U.S.C.  6055 ........................................................................................................ U.S.C.  6056 ........................................................................................................ U.S.C.  1291 ........................................................................................................ U.S.C.  1331 ........................................................................................................ Fed. Reg. 8544 (Feb 12, 2014) ............................................................................. 
Pub. No. 111-148, 1513(d), 124 Stat. 119, 256 ......................................... 
Pub. No. 111-148, 1502(e), 124 Stat. 119, 252 ............................................. 
Pub. No. 111-148, 1514(d), 124 Stat. 119, 257 ............................................. 
MISCELLANEOUS 
Brief for Appellants, Florida U.S. Dept 
 Health and Human Servs.,  
 Case Nos. 11-11021 11-11067 
  (11th Cir., filed Apr. 2011) ........................................................................ 
Fact Sheet, Final Regulations Implementing EmployerShared 
 Responsibility Under the Affordable Care Act For 2015,  
 U.S. Department the Treasury (Feb. 10, 2014) ........................................... 
Louise Randofsky and Theo Francis, Health-Law Mandate  
 Put Off Again, The Wall Street Journal (Feb. 11, 2014) ................................. 
 
JURISDICTIONAL STATEMENT 
 Appellant Kawa Orthodontics, LLP (Kawa Ortho) brought suit against Appellees Jack Lew, Secretary the U.S. Department the Treasury, the U.S. Department the Treasury, Daniel Werfel, Acting Commissioner the Internal Revenue Service, and the Internal Revenue Service (Defendants) under the Administrative Procedure Act (APA).  Appendix Document Number (Doc. No.)  The U.S. District Court for the Southern District Florida (the District Court) had jurisdiction over the matter pursuant U.S.C.  1331. January 13, 2014, the District Court granted Defendants Motion Dismiss, which dismissed all Kawa Orthos claims.  Doc. No. 27.  Kawa Ortho filed timely Notice Appeal January 21, 2014.  Doc. No. 28.  Appellate jurisdiction exists under U.S.C.  1291. 
STATEMENT THE ISSUE 
 Whether Kawa Ortho has standing challenge Defendants unlawful, unilateral delay the employer mandate provisions the Patient Protection and Affordable Care Act.  
STATEMENT THE CASE Nature the Case. 
 Kawa Ortho brought suit under the APA set aside Defendants unlawful, unilateral delay the employer mandate provisions the Patient Protection and 
Affordable Care Act (ACA), which law were scheduled take effect January 2014, but have now been postponed until least 2016.1  Doc. No.  Kawa Ortho was injured Defendants unlawful, unilateral agency action because lost the value the substantial time and money expended and the significant opportunity costs incurred anticipation the mandate taking effect the date specified Congress.  Id. the time Kawa Ortho filed its Complaint, Defendants had delayed the effective date the mandate until 2015. about February 10, 2014, Defendants delayed the effective date the mandate for second time, until least 2016. 
II. The Course Proceedings. response Kawa Orthos Complaint, Defendants moved dismiss.  Doc. No. 13. their motion, Defendants argued that the District Court lacked subject matter jurisdiction because Kawa Ortho did not have Article III standing.  Id. 
III. The District Courts Ruling. January 13, 2014, the District Court dismissed Kawa Orthos Complaint, finding that Kawa Ortho did not have standing challenge Defendants unlawful, unilateral delay the employer mandate.  Doc. No. 27.  The Court therefore determined that did not have subject matter jurisdiction and dismissed the action without prejudice.  Id. 
  
IV. Statement Facts. Statutory Background. 
 Under the ACA, most large employers, defined employers who have more than full time equivalent employees, incur tax penalties they not offer affordable, minimum essential health insurance coverage their employees and their employees dependents. U.S.C.  4980H. addition, large employers have annual reporting obligations under the ACA. U.S.C.  6056.  These include having certify whether they offer their full-time employees and their employees dependents the opportunity enroll affordable, minimum essential health insurance coverage under employer-sponsored plan, the length any waiting period, the months during which coverage was available, monthly premiums for the lowest-cost option, the employer plans share covered health care expenses, the number full-time employees, and the name, address, and taxpayer identification number each full-time employee.  Id.  Employers who self-insure have separate reporting obligations. U.S.C.  6055. 
 The ACA could not any clearer:  the obligation employers with more full time equivalent employees provide affordable, minimum essential health insurance coverage their employees and their employees dependents under Section 4908H Title shall apply the months beginning 
after December 31, 2013.  Pub. No. 111-148,  1513(d), 124 Stat. 119, 256.  Similarly, the reporting obligations under Section 6055 Title shall apply calendar years beginning after 2013.  Pub. No. 111-148,  1502(e), 124 Stat. 119, 252.  Likewise, the obligations under Section 6056 Title shall apply the periods beginning after December 31, 2013.  Pub. No. 111-148,  1514(d), 124 Stat. 119, 257.  The ACA does not afford any implementing agency the power delay these requirements. Factual Background.2 Kawa Ortho filed motion for summary judgment December 13, 2013.  Because the District Court granted Defendants motion dismiss, did not reach the merits the summary judgment motion.  Kawa Ortho had submitted declaration its principal, Larry Kawa, D.D.S., support the motion which further described the facts pled the Complaint.  The declaration reproduced its entirety Document the Appendix. 
 Kawa Ortho large employer that employs more than full-time equivalent employees.  Doc. No. see also Doc. No. 1-2.  Prior July 2013, Kawa Ortho expended substantial time and resources, including money spent legal fees and other costs, anticipation the employer mandate taking effect January 2014.  Doc. No. see also Doc. No. 2-3.  Kawa Ortho incurred these costs order comply with the mandate.  Doc. No. see also Doc. No. 2-4.  Kawa Ortho would not have expended its time and money preparing for the mandate 2013 the mandate had not been scheduled take effect January 2014.  Doc. No. see also Doc. No. 2-4. would have spent its time and money other priorities instead.  Doc. No. see also Doc. No. 2-4. July 2013, the U.S. Department Treasury announced that the employer mandate was being delayed until 2015.  Doc. No. see also Doc. No.  This announcement was formalized July 2013 with the issuance Notice 2013-45 the Internal Revenue Service.  Doc. No.    
 Defendants delay the mandate diminished the value the time and money expended Kawa Ortho anticipation the mandate taking effect January 2014.  Id. see also Doc No. 
 According the White Houses website, least 200,000 employers the United States employ more than employees.  Id.  Another government source, the Agency for Health Research and Quality the U.S. Department Health and Human Services, reports that the number employers the United States (like Kawa Ortho) having more than employees high 1.6 million.  Id. addition, the Congressional Budget Office predicted that the July 2013 delay the employer mandate will result estimated loss $10 billion penalty payments employers and approximately million fewer people are expected enrolled employment-based coverage 2014 than the number previously projected, primarily because the delay penalties employers.  Id. 5-6. 
 After Kawa Ortho initiated this lawsuit and after the District Court granted Defendants motion dismiss, the U.S. Department the Treasury yet again delayed the implementation date the employer mandate until least 2016 for certain large employers who employ between and full-time employees.3  See Fact Sheet, Final Regulations Implementing Employer Shared Responsibility Under the Affordable Care Act for 2015, U.S. Department the Treasury (Feb. 10, 2014)4 (While the employer responsibility provisions will generally apply starting 2015, they will not apply until 2016 employers with least but fewer than 100 full-time employees.); see also Fed. Reg. 8544, 8574 (Feb 12, 2014) (To assist these employers transitioning into compliance with section 4980H, the transition relief described below provided for all 2015.).  According the 2011 Census figures compiled the Small Business Administration, employers with full-time employees consist all U.S. employers and include all employees, 7.9 million people.  See Louise Randofsky and Theo Francis, Health-Law Mandate Put Off Again, The Wall Street Journal (Feb. 11, 2014).5 For reference, Kawa Ortho has full-time employees and falls within the subset large employers that employ between and full-time employees. The press release available online http://www.treasury.gov/press-center/press-releases/Documents/Fact%20Sheet%20021014.pdf. The article available http://online.wsj.com/news/articles/ 
SB10001424052702304558804579375213074082656. Standard Review. 
 This Court reviews novo district courts determination standing.  Bochese Town Ponce Inlet, 405 F.3d 964, 975 (11th Cir. 2005).  [W]hen question about standing raised the motion dismiss stage, it may sufficient provide general factual allegations injury resulting from the defendants conduct.  Id. (quoting Bischoff Osceola Cnty., 222 F.3d 874, 878 (11th Cir. 2000)).     
SUMMARY THE ARGUMENT 
 Kawa Ortho has standing challenge Defendants unlawful, unilateral delay the employer mandate based the well-established precedent this Court and numerous other courts around the country. large employer, Kawa Ortho subject the mandate.  Being responsible employer, Kawa Ortho spent substantial time and money preparing comply with the mandate, which, under express provisions the ACA, was scheduled take effect January 2014.  Kawa Ortho incurred both anticipatory compliance costs and significant opportunity costs, costs that are different from those incurred plaintiffs across the country that were found have standing challenge various provisions the ACA.   
 After Kawa Ortho incurred these costs, Defendants changed the effective date the employer mandate despite the plain language the ACA and without seeking approval from Congress.  Defendants unlawful, unilateral delay the mandate diminished the value the costs incurred Kawa Ortho. the Court were set aside the unlawful delay and reinstate the effective date established Congress, however, Kawa Ortho would regain some, not all, the value the time and money lost result the delay.  Kawa Orthos injury will have been remedied.  Kawa Ortho thus satisfies all three elements standing under Article III the Constitution. 
ARGUMENT The Three Familiar Requirements Standing. well-established that Article III standing must determined the time which the plaintiffs complaint filed.  Focus the Family Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1275 (11th Cir. 2003). establish standing under Article III the Constitution, plaintiff must demonstrate three familiar requirements:  (1) injury-in-fact; (2) a causal connection between the asserted injury-in-fact and the challenged action the defendant; and (3) that the injury will redressed favorable decision.  Houston Marod Supermarkets, Inc., 2013 U.S. App. LEXIS 22232, *10 (11th Cir. 2013); Shotz Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (citing Lujan Defenders Wildlife, 
504 U.S. 555, 560-61, 112 Ct. 2130, 2136 (1992)).  These requirements are the irreducible minimum required the Constitution for plaintiff proceed federal court.  Houston, 2013 U.S. App. LEXIS *10 (citing Northeastern Fla. Chapter Associated Gen. Contractors Am. Jacksonville, 508 U.S. 656, 664, 113 Ct. 2297, 2302, (1993)).  
II. Kawa Ortho Plainly Has Standing. Injury-in-fact under Florida U.S. Dept Health  
  and Human Servs. 
 
 Less than three years ago, this Court unequivocally held that private parties  challenging the constitutionality the ACAs individual mandate had standing pursue their claims based their need incur anticipatory compliance costs.  Florida U.S. Dept Health and Human Servs., 648 F.3d 1235, 1244 (11th Cir. 2011). that case, the plaintiffs argued that the financial planning and other steps they needed take order comply with the individual mandate, scheduled take effect January 2014,6 constituted injury-in-fact:  Unlike the employer mandate, the individual mandate was not delayed, but took effect the date established Congress. 
The individual plaintiffs, Ms. Brown particular, have established that because the financial expense they will definitely incur under the Act 2013, they are needing take investigatory steps and make financial arrangements now ensure compliance then. 
 
Florida U.S. Dept Health and Human Servs., 780 Supp. 1256, 1271 (N.D. Fla. 2011) (emphasis added).  The trial court agreed that these anticipatory 
compliance costs not only constituted injury-in-fact, but were sufficient establish standing:  That enough show standing, the clear majority the district courts consider legal challenges the individual mandate have held.  Id. appeal, the defendants Florida did not even contest the individual plaintiffs standing.  Florida, 648 F.3d 1243; see also Brief for Appellants, Florida U.S. Dept Health and Human Servs., Case Nos. 11-11021 11-11067 (11th Cir., filed Apr. 2011) (Defendants not dispute that plaintiff Browns challenge the minimum coverage provisions justiciable.).  This Court nonetheless considered whether the trial courts ruling standing was correct because standing threshold jurisdictional question and the courts are obliged consider questions standing regardless whether the parties raised them.  Id. (quoting Bochese, 405 F.3d 975).  After reviewing the record, the Court determined that it beyond dispute that the individual plaintiffs had standing challenge the individual mandate.  Florida, 648 F.3d 1244. sum, this Court has clearly held that anticipatory compliance costs constitute injury-in-fact for purposes standing. Injury-in-fact under other, well-established case law. the lower court Florida found, was not the first court hold that anticipatory compliance costs constitute injury-in-fact for purposes standing.  
Nor was the last. least three other courts considering legal challenges the employer mandate have held that such costs constitute injury-in-fact for purposes establishing standing.  See Liberty Univ., Inc. Lew, 733 F.3d 72, (4th Cir. 2013); Hotze Sebelius, 2014 U.S. Dist. LEXIS 3149, 16-17 (S.D. Tex. Jan. 10, 2014); Oklahoma Sebelius, 2013 U.S. Dist. LEXIS 113232, **27-30 (E.D. Okla. Aug. 12, 2013). Liberty Univ., the U.S. Court Appeals for the Fourth Circuit held that the plaintiff-employer that case, Liberty University, had standing challenge the employer mandate because the anticipatory compliance cost had incur order comply with the mandate: 
Even the coverage Liberty currently provides ultimately proves sufficient, may well incur additional costs because the administrative burden assuring compliance with the employer mandate, due increase the cost care.  Moreover, Libertys injury imminent even though the employer mandate will not into effect until January 2015,7 Liberty must take measures ensure compliance advance that date. Thus, Liberty has standing challenge the employer mandate.  Liberty Univ. was decided July 11, 2013, after Defendants first delay the employer mandate. 
 
733 F.3d (internal citations and quotations omitted).   
 Similarly, Hotze, the U.S. District Court for the Southern District Texas also determined that the plaintiff-employer that case, Braidwood Management, Inc., sufficiently alleged injury-in-fact and had standing challenge the employer 
mandate reason the anticipatory compliance costs had incur order comply with the mandate.  The court held: 
The Court agrees with Braidwood that has standing contest the constitutionality the ACA under the Origination and Takings Clauses. Braidwood has alleged injury that concrete, particularized, and imminent. Braidwood subject the employer mandate applicable large employer since has approximately full-time equivalent employees.  Currently, Braidwood voluntarily offers its employees high-deductible health coverage plan and the option contribute money Health Savings Accounts.  Funding this plan costs Braidwood approximately $198,000 per year.  Braidwood alleges that must make decisions soon about whether incur the new penalties imposed [the] ACA switch more expensive and less desirable health insurance coverage pursuant [the] ACA requirements.  Braidwood has plausibly asserted that must take steps now ensure compliance with the employer mandate 2015 and that imminently will accrue expenses preparing for and implementing its plan. These allegations are sufficient, motion dismiss, meet the concrete injury requirement. 
 
Hotze, 2014 U.S. Dist. LEXIS **16-17 (internal citations omitted) (emphasis added). 
 Numerous other federal courts  fact clear majority district courts  have held that anticipatory compliance costs constitute injury-in-fact for purposes standing legal challenges the individual mandate provisions the ACA.8  Florida, 780 Supp.2d 1271 (collecting cases).  One court declared, It established that the taking current measures ensure future compliance with course, the individual mandate survived these and other legal challenges.  See generally National Fed. Indep. Bus. Sebelius, 132 Ct. 2566 (2012).  
statute can constitute injury.  Mead Holder, Supp. 16, (D.D.C. 2011); see also Calvey Obama, 792 Supp. 1262 (W.D. Okla. 2011) (finding standing where [i]t may reasonably inferred from Plaintiffs allegations that they must take steps now preparation for the imminent requirement the Act that they purchase health insurance). 
 Other courts have held other contexts that incurring anticipatory compliance costs constitute injury-in-fact for purposes standing.  See e.g., Virginia Am. Booksellers Assn, 484 U.S. 383, 392-93 (1988) (finding booksellers had standing because they w[ould] have take significant and costly compliance measures); Association Private Sector Colls. Univs. Duncan, 681 F.3d 427, 457-58 (D.C. Cir. 2012) (finding increased compliance costs constitute injury-in-fact sufficient confer standing); N.Y. Civil Liberties Union Grandeau, 528 F.3d 131 (2d Cir. 2008); State Farm Mut. Auto Ins. Co. Dole, 802 F.2d 474, 480 (D.C. Cir. 1986) (finding suit ripe challenged rule would reasonably prompt regulated industry, unwilling risk substantial penalties defying the policy, undertake costly compliance measures); National Rifle Assn Magaw, 132 F.3d 272, 287 (6th Cir. 1997) (finding standing based compliance costs). Opportunity costs also constitute injury-in-fact. 
 The concept opportunity cost recognizes that part the cost activity includes the opportunities given engage that activity.  See Chronister Oil Co. Unocal Ref. and Mktg., F.3d 462, 465 (7th Cir. 1994).  Several courts that considered legal challenges the individual mandate have found that plaintiffs suffered injuries-in-fact for purposes standing because they incurred opportunity costs order comply with the mandate.  Roman Catholic Archdiocese Sebelius, 907 Supp. 310, 329 (E.D.N.Y. 2012) (finding standing because plaintiffs had decide whether purchase new car, reduce spending, divert money from other business goals order comply with the law); Mead, Supp. (finding standing based the plaintiffs needing rearrange their finances now anticipation of the individual mandate); Gaudy-Bachman U.S. Dept Health and Human Servs., 764 Supp. 684, 690-92 (M.D. Pa. 2011) (finding standing based the plaintiffs financial planning and budgeting decisions [undertaken] preparation for the implementation the individual mandate).  Similarly, another court ruled: 
Plaintiffs decisions forego certain spending today, they will have the funds pay for health insurance when the Individual Mandate takes effect 2014, are injuries fairly traceable the Act for the purposes conferring standing. There nothing improbable about the contention that the Individual Mandate causing plaintiffs feel economic pressure today. 
 
Thomas More Law Ctr. Obama, 720 Supp. 882, 887-89 (E.D. Mich. 2010). addition anticipatory compliance costs, opportunity costs can constitute injury-in-fact for purposes standing. Kawa Ortho amply pled injury-in-fact. 
 Kawa Ortho plainly alleges that, prior Defendants July 2013 delay the employer mandate, expended substantial time and money, including money for legal fees and other costs, preparation for the mandate taking effect January 2014.  Doc. No. see also Doc. No. 2-4.  More specifically, between early 2013 and the end June 2013, Kawa Ortho spent excess 100 hours time and excess $5,000 attorneys fees and costs preparing for the mandate.  Doc. No. 2-3.  This 100 hours included time spent researching and becoming familiar with the law and seeking and obtaining professional advice.  Doc. No. also included meetings and discussions with Kawa Orthos regular Florida business lawyer and its insurance broker, well lawyers Florida and the District Columbia who specialize health care law.  Id.  Kawa Ortho expressly alleges that spent this time and money order comply with the mandate.  Doc. No. see also Doc. No. 2-4.  
  Kawa Ortho also alleges that would not have expended this time money 2013 the mandate had not been scheduled take effect 2014.  Doc. No. see also Doc. would have spent its time and money other 
priorities, including generating new patients and additional revenue for its practice.  Doc. No. see also Doc. No. 3-4. minimum, Kawa Ortho could have saved its money and accrued interest rather than spending compliance with mandate that never took effect.    
 Based the plain language the ACA, the employer mandate was set take effect January 2014.  There was uncertainty dilemma about when the mandate was take effect.  Nor was there any uncertainty dilemma about whether the mandate applied Kawa Ortho.  Because Kawa Ortho employed more than full-time employees, had the obligation offer affordable, minimum essential health insurance coverage its employees and its employees dependents. failed so, would face tax penalties.  Being responsible employer, Kawa Ortho spent its time and money planning for the mandate take effect January 2014 and incurred opportunity costs doing so.  These anticipatory compliance costs and the opportunity costs were real and necessary, just like they were real and necessary for the plaintiffs Florida and the numerous other cases cited herein.  The delay the mandate diminished the value Kawa Ortho the costs had incurred. determining that Kawa Ortho did not have standing challenge the delay, District Court found that the company had not lost anything value.  Specifically, the District Court held: 
These allegations not show that Plaintiff has uselessly expended resources.  Plaintiff has prepared comply with imminent statutory requirements.  The substance those requirements has not changed.  There basis conclude that the fruits Plaintiffs time and resources are any less valuable because the one-year delay the commencement the employer mandate. 
 
Doc. No.  Kawa Ortho had plainly pled otherwise: 
Defendants delay the employer mandate injured Plaintiff causing Plaintiff lose some, not all, the value the time and resources expended 2013 anticipation the mandate going into effect January 2014. 
 
Doc. No.  This allegation could not clearer.  Kawa Ortho, fact, did plead that the time and resources expended were less valuable because the one-year delay the commencement the employer mandate.9  The District Courts finding directly contrary Kawa Orthos allegation the Complaint.  Instead taking the allegation true, the District Court disregarded it.  Bochese, 405 F.3d 976 (Facial attacks the complaint require[] the court merely look and see [the] plaintiff has sufficiently alleged basis subject matter jurisdiction, and the allegations his complaint are taken true.) (internal quotation omitted). should not have done so.  Had taken all the allegations the Complaint true, would have found that Kawa Ortho has amply alleged injury-in-fact. even less valuable now that the mandate has been delayed for second time. Kawa Ortho amply pled casual connection. 
 
 Kawa Orthos injury causally connected Defendants delay the employer mandate. was directly, not solely, caused the delay.  Were not for the delay, Kawa Ortho plainly would not have lost some, not all, the value the substantial time and resources expended 2013 anticipation the mandate taking effect January 2014.  Nor would have needlessly incurred any opportunity costs.  Kawa Ortho has pled ample facts sufficient establish causal connection between its injury-in-fact and Defendants delay. Kawa Ortho amply pled redressability. 
 Under the APA, courts must set aside agency action that in excess statutory jurisdiction, authority, limitations, contrary constitutional right, power, [or] privilege, otherwise not accordance with law. U.S.C.  706(2)(A), (B), and (C).  Agency action also must set aside arbitrary [and] capricious. U.S.C.  706(2)(B). Defendants delay the employer mandate set aside, the effective date established Congress will reinstated.  Kawa Ortho would not have incurred anticipatory compliance costs and opportunity costs preparing for mandate that has not taken effect and has been delayed yet again. will regain least some, not all, the value the time and resources lost result the unlawful delay and the opportunity costs incurred will not have been for nothing. short, Kawa Orthos injury will redressed the relief has requested and which entitled under the APA.  
 Although the District Court did not specifically rule redressability, suggested that the relief that Kawa Ortho seeks would not redress its injury because time and resources will remain expended regardless the date enforcement the employer mandate.  Doc. No.  Kawa Ortho does not seek recover its expenditures. seeks regain some, not all, the value those expenditures. will the original effective date the mandate restored, relief which Kawa Ortho entitled prevails its APA claim.  Kawa Orthos injury-in-fact redressable favorable decision. 
III. Defendants Delay the Employer Mandate Unlawful  
 Under the APA.10  Kawa Ortho recognizes that the District Court did not reach the merits its  
APA claim, but has included this summary because this Court reviews judgment for correctness, not for the soundness the reasons for the judgment.  See, e.g., Thomas Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). considering the legality agency action, court must measure the agency action against the statutory directive.  If the statute clear and unambiguous that the end the matter, for the court, well the agency, must give effect the unambiguously expressed intent Congress.  Board Governors the Fed. Reserve Sys. Dimension Fin. Corp., 474 U.S. 361, 368, 106 Ct. 681, 687 (1986) (quoting Chevron U.S.A. Inc. Natural Res. Def. 
Council, Inc., 467 U.S. 837, 842-43, 104 Ct. 2778, 2782 (1984)); see also Toro Secy, 707 F.3d 1224, 1228 (11th Cir. 2013); Silva-Hernandez U.S. Bureau Citizenship Immigration Servs., 701 F.3d 356, 361 (11th Cir. 2012); Village Barrington Surface Transp. Bd., 636 F.3d 650, 660 (D.C. Cir. 2011) (reiterating that agency may not exceed statutes clear boundaries); Financial Planning Assn Sec. and Exch. Commn, 482 F.3d 481, 490 (D.C. Cir. 2007) (an agencys failure respect the unambiguous textual limitations statutory provision fatal its regulatory efforts). 
 Congress speaks through the laws enacts (In Aiken County, 725 F.3d 255, 260 (D.C. Cir. 2013)), and the text the ACA clear and unambiguous.  The ACA plainly states that the obligation employers with more full time equivalent employees provide affordable, minimum essential health insurance coverage their employees and their employees dependents under Section 4908H Title shall apply the months beginning after December 31, 2013.  Pub. No. 111-148,  1513(d), 124 Stat. 119, 256.  Similarly, the reporting obligations under Section 6055 Title shall apply calendar years beginning after 2013.  Pub. No. 111-148,  1502(e), 124 Stat. 119, 252.  Likewise, the obligations under Section 6056 Title shall apply the periods beginning after December 31, 2013.  Pub. No. 111-148,  1514(d), 124 Stat. 119, 257. result, indisputable that the plain language the ACA 
mandates that these obligations commence January 2014.11  Defendants effectively conceded this fact when the U.S. Department Treasury posted announcement its website stating that the employer mandate was being delayed originally until 2015 and now until least 2016. Defendants believed that the language was not clear and unambiguous, then they would not have had delay anything. seeking delay these clear statutory mandates, Defendants fail[ed] respect the unambiguous textual limitations the ACA employer mandate.  Fin. Planning Assn, 482 F.3d 490.  For that reason alone, Defendants action in excess statutory jurisdiction, authority, limitations, contrary their constitutional right, power, [or] privilege, and not accordance with law. U.S.C.  706(2)(A), (B), and (C). simply picking alternative dates  two separate occasions less  Defendants also acted arbitrarily and capriciously. U.S.C.  706(2)(B). addressing substantially similar language concerning the individual mandate provisions the ACA, one court found, [T]he date definitively fixed the Act and will occur 2014, when the individual mandate goes into effect and the individual plaintiffs are forced buy insurance pay the penalty.  Florida. U.S. Dept Health and Human Servs., 716 Supp. 1120, 1145 (N.D. Fla. 2010). 
 When enacted the ACA, Congress made deliberate policy choice have the employer mandate obligations commence January 2014.  Defendants seek replace Congress policy choice with their own policy choice, purportedly providing transitional relief for 2014, and now for 2016 for some, but not all, 
large employers.  Defendants action not transitional relief. deliberate and unequivocal policy change with very real consequences for hundreds thousands businesses and millions employees across the country.  Defendants unilateral postponement the employer mandate nothing short direct and deliberate disregard for the clear policy choice made Congress, reflected the unambiguous language the ACA.   
 Nor Defendants transitional relief entitled any Chevron deference.  Where, here, Congress has unambiguously expressed [its] intent through the plain language statute, deference afforded agency.  Chevron, 467 U.S. 842-43, 104 Ct. 2781; see also Dimension Fin., 474 U.S. 368, 106 Ct. 686 (The traditional deference courts pay agency interpretation not applied alter the clearly expressed intent Congress.). determine whether Congress intent clear, courts employ the traditional tools statutory construction.  Silva-Hernandez, 701 F.3d 361.  Courts must begin examining the text the statute determine whether its meaning clear.  Harry Marchant, 291 F.3d 767, 770 (11th Cir. 2002) (en banc).  They must also presume that Congress said what meant and meant what said.  Id.  This Court has held, Those who ask courts give effect perceived legislative intent interpreting statutory language contrary its plain and unambiguous meaning 
are effect asking courts alter that language. CBS Primetime J.V., 245 F.3d 1217, 1228 (11th Cir. Fla. 2001). addition, Aiken County, supra, another case that raise[d] significant questions about the scope the Executives authority disregard federal statutes, the Court declared that, [u]nder Article the Constitution and relevant Supreme Court precedents, the President must follow statutory mandates long there appropriated money available and the President has constitutional objection the statute.  725 F.3d 257, 259. issue Aiken County was petition for writ mandamus that sought compel the Nuclear Regulatory Commission adhere statutory deadline for completing the licensing process for approving disapproving application store nuclear waste Yucca Mountain Nevada. the Court explained,  
[i]f the President has constitutional objection statutory mandate the President may decline follow the law unless and until final Court order dictates otherwise.  But the President may not decline follow statutory mandate simply because policy objections. course, Congress appropriates money for statutorily mandated program, the Executive obviously cannot move forward.  But absent lack funds claim unconstitutionality that has not been rejected final Court order, the Executive must abide statutory mandates.  These basic constitutional privileges apply the President and subordinate executive agencies. Aiken County, 725 F.3d 259. granting the petition, the Court concluded: overstatement say that our constitutional system separation powers would significantly altered were 
allow executive and independent agencies disregard federal law the manner asserted this case the Nuclear Regulatory Commission.  Our decision today rests the constitutional authority Congress and the respect that the Executive and the Judiciary properly owe Congress the circumstances here. 
 
Id. 267. 
 The same true here.  Defendants have not indicated that the President has constitutional objection the employer mandate.  Nor have Defendants suggested that they lack the funds necessary implement the employer mandate.  Defendants simply seek replace Congress policy choice about when the employer mandate should take effect  January 2014  with their own policy choice  first, January 2015 and now, January 2016, maybe.  The constitutional authority Congress and the respect that the Executive and the Judiciary properly owe Congress demands that Congress policy choice prevail.  Defendants attempt delay the effective date the employer mandate in excess their statutory jurisdiction, authority, limitations, not accordance with law, contrary constitutional right, power, [or] privilege, and arbitrary [and] capricious. U.S.C.  706(2)(A), (B), and (C). 
  
CONCLUSION 
 For the foregoing reasons, Kawa Ortho respectfully requests that the Court reverse the District Courts order granting the motion dismiss and remand this matter for further proceedings. 
Dated:  February 27, 2014   Respectfully submitted, Christopher Lunny  
Christopher Lunny 
RADEY, THOMAS, YON CLARK, P.A. 
301 South Bronough Street, Suite 200 
Tallahassee, Florida  32301 
(850) 425-6654 (phone) 
(805) 425-6694 (facsimile) 
chris@radeylaw.com Paul Orfanedes  
Paul Orfanedes Michael Bekesha  
Michael Bekesha 
JUDICIAL WATCH, INC. 
425 Third Street, SW, Suite 800 
Washington,  20024 
(202) 646-5172 (phone) 
(202) 646-5199 (facsimile) 
porfanedes@judicialwatch.org 
mbekesha@judicialwatch.org 
 
Counsel for Plaintiff-Appellant 
  
CERTIFICATE COMPLIANCE This brief complies with the type-volume limitation Fed. App. 32(a)(7)(B) because contains 789 words, excluding the parts the brief exempted Fed. App. 32(a)(7)(B)(iii). This brief complies with the typeface requirements Fed. App. 32(a)(5) and the type style requirements Fed. App. 32(a)(6) because this brief has been prepared proportionally spaced typeface using Microsoft Word 2010, namely, point Times New Roman. 
Dated:  February 27, 2014 Michael Bekesha  
 
  
CERTIFICATE SERVICE hereby certify that electronically filed the foregoing OPENING BRIEF APPELLANT KAWA ORTHODONTICS, LLP with the Clerk the Court for the United States Court Appeals for the Eleventh Circuit using the appellate CM/ECF system February 27, 2014. also certify that served original and six copies the foregoing OPENING BRIEF APPELLANT KAWA ORTHODONTICS, LLP the Clerk the Court for the United States Court Appeals for the Eleventh Circuit via Federal Express, overnight delivery, February 27, 2014. further certify that served the foregoing OPENING BRIEF APPELLANT KAWA ORTHODONTICS, LLP via Federal Express, overnight delivery, all counsel listed below February 27, 2014. 
Dana Martin 
Mark Stern 
U.S. Department Justice  
Civil Division, Appellate Staff 
950 Pennsylvania Avenue, N.W., Room 7246 
Washington,  20530 
 
 
Dated:  February 27, 2014 Michael Bekesha



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