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Judicial Watch • Kawa v Sec Treasury 10296 en banc

Kawa v Sec Treasury 10296 en banc

Kawa v Sec Treasury 10296 en banc

Page 1: Kawa v Sec Treasury 10296 en banc

Category:Lawsuit

Number of Pages:42

Date Created:January 16, 2015

Date Uploaded to the Library:January 21, 2015

Tags:10296, Kawa, Department of the Treasury, IRS


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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 that have interest the outcome this case: 
 Michael Bekesha  Counsel for Appellant. 

 Hon. Susan Black  U.S. Court Appeals Judge, U.S. Court Appeals for the Eleventh Circuit. 

 Hon. Julie Carnes  U.S. Court Appeals Judge, U.S. Court Appeals for the Eleventh Circuit. 

 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. 

 John Koskinen, Commissioner the Internal Revenue Service  Appellee. 

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

 Christopher Lunny  Counsel for Appellant. 

 Hon. Beverly Martin  U.S. Court Appeals Judge, U.S. Court Appeals for the Eleventh Circuit. 

 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. 

 Katherine Twomey  Counsel for Appellees. 

 U.S. Department the Treasury  Appellee. 

 Caroline Lewis Wolverton  Counsel for Appellees. 

 
Dated:  January 16, 2015 Michael Bekesha  
  
STATEMENT COUNSEL express belief, based reasoned and studied professional judgment, that the panel decision contrary the following decisions and precedents this Circuit and that consideration the full court necessary secure and maintain uniformity decisions this court: 
 Florida U.S. Dept Health and Human Servs.,  

 648 F.3d 1235 (11th Cir. 2011) 
 Bochese Town Ponce Inlet, 405 F.3d 964 (11th Cir. 2005) express belief, based reasoned and studied professional judgment, that this appeal involves one more questions exceptional importance: 
 Whether plaintiff satisfies the injury-in-fact prong standing demonstrating that unlawful action caused him lose the time value the money spent anticipatory compliance costs.   

 Whether the motion dismiss stage, court must accept all factual allegations true. Michael Bekesha  
 
Michael Bekesha 
Attorney Record for Plaintiff-Appellant 
  
TABLE CONTENTS 
CERTIFICATE INTERESTED PERSONS 
AND CORPORATE DISCLOSURE STATEMENT .............................................. 
STATEMENT COUNSEL .............................................................................. iii 
TABLE CONTENTS ...................................................................................... 
TABLE CITATIONS ...................................................................................... 
STATEMENT THE ISSUES AND THEIR IMPORTANCE ............................ 
STATEMENT THE CASE ............................................................................... Nature the Case .............................................................................. 
 II. The Course Proceedings ................................................................. 
 III. The District Courts Ruling ................................................................. 
 IV. The Panels Decision .......................................................................... Statement Facts ............................................................................... Statutory Background ............................................................... Factual Background .................................................................. 
ARGUMENT ......................................................................................................... The Panels Ruling Contradicts  
  Florida U.S. Dept Health and Human Servs. ............................. 
  
 II. The Panels Ruling Contradicts  
  Bochese Town Ponce Inlet ........................................................ 
 III. Banc Rehearing the Panels Ruling 
  Necessary Secure and Maintain Uniformity within 
  this Circuit Issues Exceptional Importance .............................. 
CONCLUSION .................................................................................................... 
CERTIFICATE SERVICE 
OPINION SOUGHT REHEARD 
  
TABLE CITATIONS 
CASES                   PAGE 
Atlantic Mut. Ins. Co. Commr,  
 523 U.S. 382 (1998) ...................................................................................... 
Arcia Secretary Florida,  
 2014 U.S. App. LEXIS 21685 (11th Cir. Nov. 17, 2014) ............................ 
Bochese Town Ponce Inlet,  
 405 F.3d 964 (11th Cir. 2005) ..................................................... 10, 12, 
Florida U.S. Dept Health and Human Servs., 
 780 Supp. 1256 (N.D. Fla. 2011) ......................................................... 
Florida U.S. Dept Health and Human Servs.,  
 648 F.3d 1235 (11th Cir. 2011) ........................................................... 
Goudy-Bachman U.S. Dept Health and  
 Human Servs., 764 Supp. 684 (M.D. Pa. 2011) .................................. 
Mead Holder, 766 Supp. (D.D.C. 2011) .............................................. 
Roman Catholic Archdiocese Sebelius, 
 907 Supp. 310 (E.D.N.Y. 2012) ................................................... 10, 
Thomas More Law Ctr. Obama,  
 720 Supp. 882 (E.D. Mich. 2010) ...................................................... 
Till SCS Credit Corp., 541 U.S. 465 (2004) ........................................................ 
STATUTUES, RULES, AND REGULATIONS             PAGE U.S.C.  4980H .................................................................................................. U.S.C.  6055..................................................................................................... U.S.C.  6056..................................................................................................... 
Pub. No. 111-148, 1502(e), 124 Stat. 119, 252 ................................................. 
Pub. No. 111-148, 1513(d), 124 Stat. 119, 256 ................................................. 
Pub. No. 111-148, 1514(d), 124 Stat. 119, 257 ............................................. 4-5 
MISCELLANEOUS 
Brief for Appellants, Florida U.S. Dept Health and  
 Human Servs., Case Nos. 11-11021 11-11067 
 (11th Cir., filed Apr. 2011) ....................................................................... Herwitz Barrett, Accounting for Lawyers 221 (2d ed. 1997) .................... 
Encyclopedia Banking Finance 1015 (9th ed. 1991) ....................................... 
 
STATEMENT THE ISSUES 
AND THEIR IMPORTANCE 2-1 vote, the panel concluded that Kawa Orthodontics, LLP (Kawa Ortho) was not injured.  The panel reached this decision ignoring the allegations the well-pled Complaint and misapplying clear Circuit precedent. law, the employer mandate provisions the Patient Protection and Affordable Care Act (ACA) were set take effect January 2014.  Kawa Ortho spent time and money 2013 anticipation the mandate taking effect 2014. would not have expended resources the mandate 2013 the law had not been scheduled take effect 2014. would have waited and spent its time and money more timely priorities.  Defendants subsequently delayed the mandate until 2016. result the delay, Kawa Ortho lost least some the value the time and money spent 2013 preparing for the mandate take effect 2014.  Kawa Orthos lawsuit challenges the legality Defendants delay and seeks restore the status quo ante. 
 Kawa Orthos Complaint plainly alleged that the anticipatory compliance costs expended 2013 were less valuable because Defendants delay the mandate.  The panel disregarded that allegation. found that Kawa Ortho had not been injured all. contrast, the dissent credited Kawa Orthos allegations injury.  Unlike the panel, the dissent recognized that Kawa Ortho was injured because lost the time value the money spent anticipatory compliance 
costs 2013.  The dissent concluded that Kawa Orthos allegations were sufficient establish standing. finding otherwise, the panel misapplied Circuit precedent and failed take into consideration how businesses operate.  Not only does the panels ruling have immediate consequences for Kawa Ortho, but also raises the burden future plaintiffs seeking establish standing.  Individuals and entities will longer have access the courts remedy losses the time value money.  Nor will plaintiffs survive motions dismiss relying well pled, factual allegations their complaints.  These results are directly contrary Circuit precedent.  This case should reheard banc correct these errors and secure and maintain uniformity within the Circuit. 
STATEMENT THE CASE Nature the Case. 
 Kawa Ortho brought suit under the Administrative Procedure Act (APA) set aside Defendants delay the employer mandate provisions the ACA, which law were scheduled take effect January 2014, but have now been postponed until least 2016.1  Appendix Document Number (Doc. No.)  Kawa Ortho was injured this agency action because lost the value the substantial time and money expended and the significant opportunity costs the time Kawa Ortho filed its Complaint, Defendants had delayed the mandate until 2015.  They later delayed the mandate until least 2016. 
incurred anticipation the mandate taking effect the date specified Congress.  Id. 
II. The Course Proceedings. 
 Kawa Ortho filed suit October 2013.  Doc. No. December 2013, Defendants moved dismiss for lack standing December 2013.  Doc. No. 13. 
III. The District Courts Ruling. January 13, 2014, the District Court dismissed Kawa Orthos Complaint, without prejudice, for lack standing.  Doc. No. 
IV. The Panels Decision. December 2014, 2-1 vote, panel this Court affirmed the lower courts ruling concluding that Kawa Ortho lacked Article III standing.  See generally December 2014 Memorandum Opinion (Opinion) 1-9.  The dissent concluded that Kawa Ortho had suffered sufficient injury demonstrate standing because lost the time value the money spent anticipatory compliance costs.  Opinion 10-18. 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 obligations 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. 
 After Kawa Ortho initiated this lawsuit and the District Court granted Defendants motion dismiss, the U.S. Department the Treasury again delayed the implementation date the employer mandate second time, until least 2016 for certain large employers who employ between and full-time employees.3 For reference, Kawa Ortho has full-time employees and falls within the subset large employers that employ between and full-time employees. 
 
ARGUMENT The Panels Ruling Contradicts Florida U.S. Dept Health 
 and Human Servs. 
 
Based the plain language the ACA, the employer mandate was set take effect January 2014.  Because Kawa Ortho employed more than full-time equivalent employees, had comply with the mandate January 2014 face substantial tax penalties. responsible employer, Kawa Ortho spent time and money 2013 comply with the mandate taking effect January 2014. also incurred substantial opportunity costs.  Defendants subsequently 
delayed the date for compliance until January 2015.  They then delayed second time.  The mandate now takes effect 2016. rational employer well reasonable one, Kawa Ortho would not have expended its time and money 2013 had not been required comply with the mandate until 2016. would have spent its time other priorities, including generating new patients and additional revenue for its practice. would have saved its money and accrued interest it, put other uses.    
 A dollar today worth more than dollar tomorrow.  Atlantic Mut. Ins. Co. Commr, 523 U.S. 382, 384 (1998) (quoting Herwitz Barrett, Accounting for Lawyers 221 (2d ed. 1997)).  To put simply, $4,000 today worth more than $4,000 received months from today because received today, the $4,000 can invested start earning interest immediately.  Till SCS Credit Corp., 541 U.S. 465, 487 (2004) (Thomas, J., dissenting) (citing Encyclopedia Banking Finance 1015 (9th ed. 1991)).  Delay undermines the time value money. 
 Had the mandate taken effect the date established Congress, Kawa Ortho would have realized the full value the time and money spent 2013 comply with the mandate January 2014.  Defendants delay the mandate least two years made Kawa Orthos expenditures premature.  The panel failed apply the basic economic principle that dollar today worth more than 
dollar tomorrow. also failed take into account how businesses operate. concluding that Kawa Ortho was not harmed, the panel stated, Although Kawa [Ortho] asserts would have waited research its ACA obligations, Kawa [Ortho] has not alleged that its ACA research objectively worth less, that Kawa [Ortho] has been actually harmed concrete way.  Opinion  But Kawa Ortho alleged different injury. the dissent correctly noted, [L]ooking only the utility Kawa [Ortho]s legal expenditures ignores the fact that Kawa [Ortho] could have obtained that information two years later, and benefited from the use interest earned that money had known the delay.  Opinion 15.  Kawa Ortho plainly alleged that because the delay, lost some, not all, the value the substantial time and resources expended least two years early. lost the time value the money spent anticipatory compliance costs.  Opinion 13. 
 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 individual plaintiffs argued that the financial planning and 
other steps they needed take order comply with the individual mandate, scheduled take effect January 2014,4 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 Town Ponce Inlet, 405 F.3d 964, 975 (11th Cir. 
2005)).  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. other words, this Court has already determined that the expenditure anticipatory compliance costs sufficient confer standing. Florida, the individual plaintiffs were injured the enactment the law because they had spend money comply with the law. the instant matter, Kawa Ortho was injured because the subsequent delay meant that spent money too early. the dissent succinctly explained, It spent money compliance costs two years earlier than necessary.  Opinion 12.  The delay caused Kawa Ortho lose the time value the money spent anticipatory compliance costs.  Id. 13. 
 Another way look the injury that because the law did not take effect January 2014, was unnecessary for Kawa Ortho have incurred opportunity costs 2013.  Instead spending money comply with the law 2013, it could have earned additional two years interest that money [or] could have invested that money other endeavors generate two years worth added profits the company.  Opinion 13; see also Arcia Secretary Florida, 2014 U.S. App. LEXIS 21685 (11th Cir. Nov. 17, 2014); 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 Holder, 766 Supp. 16, (D.D.C. 2011) (finding standing based the plaintiffs need[] rearrange their finances now anticipation of the individual mandate); Goudy-Bachman U.S. Dept Health and Human Servs., 764 Supp. 684, 690-692 (M.D. Pa. 2011) (finding standing based the plaintiffs financial planning and budgeting decisions [undertaken] preparation for the implementation the individual mandate); Thomas More Law Ctr. Obama, 720 Supp. 882, 887-889 (E.D. Mich. 2010) (Plaintiffs decide to forego certain spending today, they will have the funds pay for health insurance when the Individual Mandate takes effect 2014.).  
 Because misidentified the injury, the panel concluded that Kawa Orthos injury was not traceable Defendants. the dissent concluded, however: 
Were the alleged injury the fact that Kawa [Ortho] spent the money compliance costs all, the government would correct that the statutory mandatenot the delaybrought about the need make such expenditures. But since the injury the lost time value Kawa [Ortho]s expenditures, not the expenditures themselves, the only reason for that loss the delay enforcement. 
 
Opinion 15-16.  Kawa Orthos injury directly traceable Defendants actions.  Had Defendants not delayed the law, Kawa Ortho would not have lost the time value the money spent anticipatory compliance costs. addition, Kawa Orthos injury redressable favorable ruling. the delay set aside, Kawa Orthos 2013 expenditures will not have been premature. will regain some, not all, the value the time and resources expended 2013, and the opportunity costs incurred will not have been wasted.  [I]f court required the government enforce the employer mandate going forward, that decision would end the continued injury Kawa [Ortho] faces from each new day unearned interest the money prematurely used for those legal expenditures.  Opinion 16.   
 The panel also failed correctly apply Circuit precedent failing take into consideration how businesses operate.  The time value money important any business, and losing the time value money  such incurring opportunity costs prematurely unnecessarily  constitutes injury. plaintiff has standing can demonstrate that defendants action caused the plaintiff lose the time value the money spent anticipatory compliance costs.  Kawa Ortho spent money 2013 otherwise might not have spent until years later.  Kawa Ortho can regain some, not all, the value those expenditures court were set aside the delay.  Kawa Ortho has standing. 
II. The Panels Ruling Contradicts Bochese Town Ponce Inlet. well recognized that the manner and degree which plaintiff required demonstrate standing increases the litigation progresses.  Bochese, 405 F.3d 975-976.  Accordingly, when question about standing raised the motion dismiss stage, may sufficient provide general factual allegations injury resulting from the defendants conduct.  Id. (internal citations omitted). addition, when defendant brings facial attack complaint, courts are required look and see the plaintiff has sufficiently alleged basis subject matter jurisdiction, and the allegations his complaint are taken true.  Id. (internal citations omitted). 
 Defendants motion dismiss was facial attack Kawa Orthos Complaint.  Nonetheless, the panel disregarded the express allegations the Complaint.  Kawa Ortho plainly alleged that, prior the mandates delay, expended substantial time and money, including money for legal fees and other costs, preparation for the mandate taking effect January 2014.  Doc. No.  Kawa Ortho also expressly alleged that would not have expended this time money 2013 the mandate had not been scheduled take effect 2014.  Doc. No. addition, Kawa Ortho alleged:    
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.  These allegations could not clearer. the dissent found:  
The plaintiffs complaint here clearly says that Plaintiff would not have expended its time and resources and incurred these anticipatory costs 2013 the mandate had not been scheduled take effect until 2015, but instead would have spent its time, resources, and money other priorities. The complaint also states that the delay enforcement the employer mandate has caus[ed] Plaintiff lose some the value the time and resources expended 2013. 
Opinion 17. 
 Instead taking these allegations true, the panel disregarded them. should not have done so.  Had accepted all the allegations the Complaint true, would have found that Kawa Ortho alleged facts sufficient demonstrate Article III standing.  Id. 
III. Banc Rehearing the Panels Ruling Necessary Secure and Maintain Uniformity within This Circuit Issues Exceptional Importance. 
 
 The panels ruling must reheard banc.  The panels misapplication Circuit precedent and failure take into account how businesses operate creates confusion within the Circuit.  Whereas the Court Florida found that incurring anticipatory compliance costs was sufficient establish standing challenge the mandate, the panel found that the loss the time value the money spent anticipatory compliance costs was not sufficient.  The panels ruling odds with Florida. also upends the long-recognized principle that, when defendant makes facial attack complaint motion dismiss, court must accept true all well pled, factual allegations the complaint.  Because these obvious deviations from precedent, one judge dissented.  See Opinion 17-18.  This case therefore should reheard banc correct these errors and secure and maintain uniformity within the Circuit. 
 
CONCLUSION 
 For the foregoing reasons, Kawa Ortho respectfully requests that the Court grant this petition for rehearing banc. 
Dated:  January 16, 2015    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.coms/ 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 SERVICE hereby certify that electronically filed the foregoing PETITION FOR REHEARING BANC PLAINTIFF-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 January 16, 2015. also certify that served original and fourteen copies the foregoing PETITION FOR REHEARING BANC PLAINTIFF-APPELLANT KAWA ORTHODONTICS, LLP. the Clerk the Court for the United States Court Appeals for the Eleventh Circuit via Federal Express, overnight delivery, January 16, 2015. further certify that served two copies the foregoing PETITION FOR REHEARING BANC PLAINTIFF-APPELLANT KAWA ORTHODONTICS, LLP. via Federal Express, overnight delivery, all counsel listed below January 16, 2015. 
Katherine Twomey 
Dana Martin 
Mark Stern 
U.S. Department Justice  
Civil Division, Appellate Staff 
950 Pennsylvania Avenue, N.W., Room 7246 
Washington,  20530 
 
 
Dated:  January 16, 2015 Michael Bekesha  

           [PUBLISH] THE UNITED STATES COURT APPEALS 
 
 FOR THE ELEVENTH CIRCUIT 
 ________________________ 
 
No. 14-10296 
________________________ 
 
D.C. Docket No. 9:13-cv-80990-WPD 
  
 KAWA ORTHODONTICS, LLP, 
 
         Plaintiff  Appellant, 
 
versus 
 SECRETARY, U.S. DEPARTMENT THE TREASURY, 
U.S. DEPARTMENT TREASURY, 
COMMISSIONER THE INTERNAL REVENUE SERVICE, 
INTERNAL REVENUE SERVICE, 
 
           Defendants  Appellees. 
 ________________________ 
 
 Appeal from the United States District Court 
 for the Southern District Florida 
 _________________________ 
 
(December 2014) 
 
 
Before MARTIN, JULIE CARNES and BLACK, Circuit Judges. 
  
BLACK, Circuit Judge:  BACKGROUND 
The employer mandate provisions the Patient Protection and Affordable Care Act (ACA) require certain employers offer their employees health insurance that meets statutorily-specified minimum requirements.  The ACA imposes reporting obligations those employers and provides for the assessment tax penalty employer fails provide adequate insurance.   
Between early 2013 and the end June 2013, Kawa Orthodontics, LLP (Kawa) expended time and money determine how comply with the employer mandate.  After Kawa incurred these expenses, July 2013, the U.S. Department the Treasury (Treasury) announced would not enforce the mandate for transition period one yearuntil the end 2014.  Treasury later extended the transition relief for certain employers, including Kawa, for second year. October 2013, Kawa filed complaint federal district court challenging Treasurys decision postpone enforcement the employer mandate.  Kawa did not seek the return the money that Kawa paid research its upcoming obligations under the ACA.  Nor did seek the return any money attributable the monetary value the time that Kawa spent this endeavor.  Rather, Kawa sought declaratory judgment and injunction setting aside Treasurys transition relief.  The district court dismissed the complaint, finding that Kawa lacked Article III standing.  Kawa appeals. 
II.  STANDARD REVIEW  
Whether party has Article III standing jurisdictional issue, and therefore must addressed before may reach the merits.  Vt. Agency Natural Res. United States rel. Stevens, 529 U.S. 765, 771, 120 Ct. 1858, 1861 (2000); see also Bochese Town Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005) (Standing threshold jurisdictional question which must addressed prior and independent the merits partys claims. (brackets and quotation omitted)). review novo whether plaintiffs have Article III standing.  Ga. Latino Alliance for Human Rights Governor Georgia, 691 F.3d 1250, 1257 (11th Cir. 2012). assessing standing motion dismiss, presume the plaintiffs general allegations embrace those specific facts that are necessary support the claim.  Lujan Defenders Wildlife, 504 U.S. 555, 561, 112 Ct. 2130, 2137 (1992).  Moreover, must accept true all material allegations the complaint, and must construe the complaint favor the complaining party.  Warth Seldin, 422 U.S. 490, 501, Ct. 2197, 2206 (1975). may affirm for any reason supported the record, even not relied upon the district court.  United States Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008).   
III.  DISCUSSION establish Article III standing, plaintiff must show (1) injury fact that concrete, particularized, and either actual imminent; (2) causal connection between the injury and the conduct complained of; and (3) likelihood that favorable judicial decision will redress the injury.  McCullum Orlando Regl Healthcare Sys., Inc., 768 F.3d 1135, 1145 (11th Cir. 2014).  Applying this test, conclude Kawa lacks Article III standing challenge Treasurys delay the mandate.1 address each element turn. Because conclude Kawa lacks Article III standing, need not address whether Treasurys decision postpone enforcement the employer mandate unreviewable under  701(a)(2) the Administrative Procedure Act (the APA), which precludes judicial review agencys action the agency action committed agency discretion law. U.S.C.  701(a)(2).  Injury its complaint Kawa alleges Treasurys delay enforcing the employer mandate injured because the delay caused Kawa lose some, not all, the value the time and resources expended 2013 anticipation the mandate going into effect January 2014.  Kawa alleges would not have spent its time and money researching the ACA 2013 had known the mandate would delayed until 2015, but instead would have spent its time, resources, and money other priorities. satisfy the injury requirement, Kawa must show an invasion legally protected interest that sufficiently concrete and particularized rather than abstract and indefinite.  Ga. State Conference NAACP Branches Cox, 183 F.3d 1259, 1262 (11th Cir. 1999).  The interest must consist obtaining compensation for, preventing, the violation legally protected right.  Vt. Agency Natural Res., 529 U.S. 772, 120 Ct. 1862.   
The allegations Kawas complaint not state such concrete and particularized injury.  Although Kawa asserts would have waited research its ACA obligations, Kawa has not alleged that its ACA research objectively worth less, that Kawa has been actually harmed concrete way.  See GrassRoots Recycling Network, Inc. E.P.A., 429 F.3d 1109, 1112 (D.C. Cir. 2005) (holding plaintiff failed show actual injury challenge EPA rule when the plaintiff alleged would not have purchased piece property would have paid less because the plaintiffs allegations showed only that the property was worth less him, not that the property was in fact worth less).  Therefore, set out its complaint, Kawas bare allegation that has lost the value the time and resources expended 2013 sets out injury that too abstract and indefinite confer Article III standing, particularly because the substantive requirements for complying with the employer mandate remain unchanged and Kawa still subject them.   
The dissent characterizes Kawas alleged injury the lost two years interest Kawa could have accrued the money spent 2013 comply with the employer mandate.  However, this appeal comes motion dismiss, must evaluate Kawas standing based the facts alleged the complaint.  Shotz Cates, 256 F.3d 1077, 1081 (11th Cir. 2001). may not hypothesize speculate about the existence injury Kawa did not assert.  Id. ([W]e may not speculate concerning the existence standing piece together support for the plaintiff. (quotation omitted)).  Kawas complaint does not mention the word interest, let alone allege that Kawa had specific plans invest its money into interest-bearing asset.2  Therefore, Kawas lost-interest argument waived.  See Bryant Jones, 575 F.3d 1281, 1308 (11th Cir. 2009) ([A]bsent extraordinary circumstances, legal theories and arguments not raised squarely before the district court cannot broached for the first time appeal.). Kawas response the motion dismiss also makes mention lost interest. was not until its initial brief before this Court that Kawa made one-sentence passing reference lost interest, stating only that [a]t minimum, Kawa Ortho could have saved its money and accrued interest rather than spending compliance with mandate that never took effect.  Appellant Br. 16. Even Kawas complaint had alleged lost interest revenue its injury, that would not confer standing challenge Treasurys delay.  First, explained our discussion short, Kawas complaint alleges only subjective perception that Treasurys delay caused harm, which insufficient establish Article III standing.3            
causation, was the ACA itself, not Treasurys delay, which caused Kawa spend money legal research 2013 and thereby forego the opportunity earn interest whatever money spent.  Second, explained our discussion redressability, the only remedy that could restore Kawas lost interest money, which Kawa does not seek.  Causation 
 Even Kawa had established concrete and particularized injury, Kawas claim standing fails the causation requirement. establish causation, Kawa must demonstrate its alleged injury fairly traceable the challenged action the defendant, and not the result the independent action some third party not before the court.  Lujan, 504 U.S. 560, 112 Ct. 2136 (quotation and alterations omitted).  Kawa alleges its injury was caused Treasurys delay the mandate.  Kawa has not demonstrated its purported injury fairly traceable Treasurys delay.  Any injuries associated with the timing Kawas compliance expenses, including any opportunity costs, are attributable the ACA itself.  Cf. Arcia Fla Secy State, No. 12-15738, 2014 6235917, (11th Cir. Nov. 17, 2014) (plaintiffs who incurred costs because Floridas voter-removal program had standing challenge that particular program); Habitat Educ. Ctr. U.S. Forest Serv., 607 F.3d 453, 456-57 (7th Cir. 2010) (plaintiff who incurred costs because order requiring post bond had standing challenge bond order).  Treasury played role determining when how Kawa allocated its resources preparation for the employer mandate and reporting requirements the ACA.  Therefore, Kawa cannot show causation.employer mandate and reporting requirements the ACA.  Therefore, Kawa cannot show causation.employer mandate and reporting requirements the ACA.  Therefore, Kawa cannot show causation. The dissent does not cite any authority for its view that Kawas alleged injury fairly traceable Treasurys actions, but instead relies only its characterization Kawas injury. Damages are not available under the Administrative Procedure Act this action.  See U.S.C.  702 (authorizing actions seeking relief other than money damages).  Redressability 
Even Kawa had met both the injury and causation requirements establish standing, cannot meet the redressability requirement.  This because Kawa does notand cannot5seek money damages this case, and money damages are the only relief that could redress Kawas alleged injury.  Kawa nevertheless requests declaratory judgment that Treasurys transition relief violates the Administrative Procedure Act and injunction prohibiting and setting aside the transition relief.  Kawa argues injunction would reinstate the original January 2014, effective date the mandate, and Kawa would thereby regain some all the value its 2013 expenditures. establish redressability, it must likely, opposed merely speculative, that the injury will redressed favorable decision.  Lujan, 504 U.S. 561, 112 Ct. 2136 (quotation omitted). this case, granting the requested declaratory and injunctive relief would not redress Kawas purported injury.  Kawa would not recoup its compliance expenses any value associated with the time and resources Kawa expended 2013.  The consequence granting the requested relief would simply subject Kawa and other employers the employer mandate tax penalties and reporting requirements.  Kawa has not explained how Treasurys enforcement tax penalties and reporting requirements would put Kawa any different position than Kawa currently now, how the requested relief will could increase the value the resources Kawa expended.  See DiMaio Democratic Natl Comm., 520 F.3d 1299, 1303 (11th Cir. 2008) (explaining plaintiff lacked standing where the complaint did not suggest any way how [the] injury could redressed favorable judgment).  Therefore, Kawa has not shown redressability. The dissent argues that injunction would end the continued injury Kawa faces from each new day unearned interest the money Kawa spent compliance 2013.  But nothing short monetary compensation that may invested interest-bearing account could stop Kawa from continuing lose the potential interest revenue Kawa gave 2013 when paid for ACA research. explained, Kawa does not seek and cannot obtain monetary damages.  And neither declaratory judgment nor injunction could restore Kawa its alleged loss time and value.   
IV.  CONCLUSION 
 For the foregoing reasons, conclude Kawa lacks Article III standing. 
 AFFIRMED. MARTIN, Circuit Judge, dissenting: 
 
 Kawa Orthodontics, LLP (Kawa) filed suit federal court challenging the Treasury Departments decision delay enforcement the employer mandate provisions the Patient Protection and Affordable Care Act (ACA).  Before the narrow question whether Kawa has Article III standing challenge that delay.  Because believe that Kawa has standing, respectfully dissent. 
 The ACA requires employers with more than fifty full-time employees provide minimum essential health-insurance coverage its employees and their dependents pay tax penalty. U.S.C.  4980H.  According the statute, these provisions (known the employer mandate) were scheduled take effect January 2014.  Pub. No. 111-148,  1513(d), 124 Stat. 119, 256.  However, July 2013, the Treasury Department announced one-year delay enforcement the employer mandate.  See IRS Notice 2013-45, Transition Relief for 2014 Under  6055 ( 6055 Information Reporting), 6056 ( 6056 Information Reporting) and 4980H (Employer Shared Responsibility Provisions), IRB 2013-31, July 29, 2013, available http://www.irs.gov/irb/2013-31_IRB/ar08.html.  That delay has since been extended until the end 2015 for employers with between fifty and ninety-nine employees.  See Fed. Reg. 8544 (Feb. 12, 2014). October 2013, Kawa filed suit federal district court challenging Treasurys delay enforcing the employer mandate.  Kawa has more than fifty full-time employees and would therefore subject the provision.  According the complaint, prior the announcement delayed enforcement, Kawa incurred certain costs including money spent legal fees order determine what options and obligations ha[d] under the employer mandate and how the coverage Plaintiff [then] offer[ed] its employees w[ould] affected the mandate.  Kawa alleged that had known the employer mandate would not enforced until well after January 2014, would not have expended its time and resources and incurred these anticipatory costs 2013 but instead would have spent its time, resources, and money other priorities. short, Kawa alleged injury because los[t] some, not all, the value the time and resources expended 2013 anticipation the mandate going into effect January 2014.  Kawa sought declaratory and injunctive relief under the Administrative Procedure Act (APA) setting aside the delay the employer mandate. January 13, 2014, the District Court dismissed Kawas suit for lack subject-matter jurisdiction, holding that Kawa lacked Article III standing.  Kawa appeals that holding here. 
II. order show standing, plaintiff must allege personal injury fairly traceable the defendants allegedly unlawful conduct and likely redressed the requested relief.  Allen Wright, 468 U.S. 737, 751, 104 Ct. 3315, 3324 (1984), abrogated other grounds Lexmark Intl, Inc. Static Control Components, Inc., U.S. __, 134 Ct. 1377 (2014).  The party invoking federal jurisdiction bears the burden establishing these elements.  Lujan Defenders Wildlife, 504 U.S. 555, 561, 112 Ct. 2130, 2136 (1992).  We review issues standing novo.  Hollywood Mobile Estates, Ltd. Seminole Tribe Fla., 641 F.3d 1259, 1264 (11th Cir. 2011).  After careful consideration, believe that Kawa has alleged facts sufficient meet each part the three-pronged standing test. 
 First, Kawa has shown that has sustained injury result the governments decision delay enforcement the employer mandate. spent money compliance costs two years earlier than necessary, and therefore lost two years interest those expenditures.  Under basic rules accounting, [a] dollar today worth more than dollar tomorrow.  Atlanta Mut. Ins. Co. Commr, 523 U.S. 382, 384, 118 Ct. 1413, 1415 (1998) (quoting Herwitz Barrett, Accounting for Lawyers 221 (2d ed. 1997)); see also Till SCS Credit Corp., 541 U.S. 465, 487, 124 Ct. 1951, 1966 (2004) (Thomas, J., concurring the judgment) ($4,000 today worth more than $4,000 received months from today because received today, the $4,000 can invested start earning interest immediately. (footnote omitted)).  This the time value money.  See Habitat Educ. Ctr. U.S. Forest Serv., 607 F.3d 453, 459 (7th Cir. 2010).  Here, had Kawa spent money ensure its compliance with the employer mandate 2015 instead 2013, could have earned additional two years interest that money.  Or, instead earning interest, Kawa could have invested that money other endeavors generate two years worth added profits the company.  Cf. Arcia Florida Secy State, 746 F.3d 1273, 1279 (11th Cir. 2014) (Under the diversion-of-resources theory, organization has standing sue when defendants illegal acts impair the organizations ability engage its own projects forcing the organization divert resources response.). The owner Kawa, Larry Kawa, also said his declaration that spent approximately 100 hours researching and familiarizing [him]self with the ACA and the employer mandate.  Had [he] not spent [his] time researching the ACA and the employer mandate and seeking and obtaining professional advice how best comply with the mandate, [he] would have spent this same time generating new patient referrals for Kawa Ortho.   
 This loss the time value Kawas money sufficient injury meet the requirements Article III standing.  Recently, Habitat Education Center, the Seventh Circuit addressed similar question and held that the plaintiff had standing challenge deposit $10,000 with the court, even though was 
possible the plaintiff would eventually receive the full amount money back won the case.  Id. 457.  The Seventh Circuit reasoned: could argued that unless and until damages are assessed, Habitat has incurred loss and therefore lacks standing appeal.  But has incurred lossa loss the use $10,000.  Every day that sum money wrongfully withheld, its rightful owner loses the time value the money.  Suppose damages are ever assessed against Habitat and eventually the court returns the $10,000 that holding; there would procedural vehicle enable Habitat recover the loss the time value its money.  Therefore had standing challenge the bond order appeal from the final judgment. 
Id.   
The very same can said here.  Kawa alleged that spent [money] legal fees order determine what options and obligations ha[d] under the [ACA].  And paying lawyers ensure that its health insurance program complied with the ACA 2013 rather than 2015, Kawa lost two years interest those expenditures.  Given that the Supreme Court has found injury small a fine and costs and $1.50 poll tax sufficient show standing, United States SCRAP, 412 U.S. 669, 689 n.14, Ct. 2405, 2417 (1973), understand the lost interest thousands dollars legal payments that were prematurely spent meet the injury prong standing.  See also Andrew Hessick, Probabilistic Standing, 106 Nw. Rev. 55, 6768 (2012) ([S]tanding treats identically plaintiff who alleges only 1 harm and plaintiff who alleges $100,000 injury; both have personal stake warranting invocation the courts.). course, agree that the information Kawa obtained result its legal expenditures will also valuable 2015 when the employer mandate goes into effect.  However, looking only the utility Kawas legal expenditures ignores the fact that Kawa could have obtained that information two years later, and benefited from the use interest earned that money had known the delay.  Monetary lossno matter how smallhas been recognized cognizable injury for standing purposes. would hold that Kawa has alleged facts that show injury sufficient demonstrate Article III standing. 
 Second, Kawa has shown that its injury [is] fairly traceable the defendants allegedly unlawful conduct, Allen, 468 U.S. 751, 104 Ct. 3324.  The government argues that Kawas asserted injury did not result from the actions the defendants this case, but rather from the enactment the statute itself.  Were the alleged injury the fact that Kawa spent the money compliance costs all, the government would correct that the statutory mandatenot the delaybrought about the need make such expenditures.  But since the injury the lost time value Kawas expenditures, not the expenditures themselves, the only reason for that loss the delay enforcement. would hold that Kawa has alleged causation sufficient demonstrate Article III standing. 
 Third, Kawa has shown that its injury likely redressed the requested relief.  Allen, 468 U.S. 751, 104 Ct. 3324.  When determining redressibility, simply inquire whether the plaintiff has shown that would gain some relief the event favorable ruling.  See Hollywood Mobile Estates, 641 F.3d 1266. 
Here, Kawa sought relief under the APA for injunctive and declaratory reliefnot monetary damages. agree with the District Court that [n]either declaration that Defendants acted unlawfully nor injunction requiring the immediate implementation the employer mandate would compensate Plaintiff for its time and resources expended 2013.  However, compensation not the only means redress.  Kawa may not able obtain redress for the interest has lost between January 2014, and now.  But court required the government enforce the employer mandate going forward, that decision would end the continued injury Kawa faces from each new day unearned interest the money prematurely used for those legal expenditures. other words, would not have unnecessarily spent the money before needed to.  For this reason, would hold that Kawa has met the redressibility prong for Article III standing. III. 
 The majority says that because Kawas complaint does not mention the word interest, let alone allege that Kawa had specific plans invest its money into interest-bearing asset [its] lost-interest argument waived.  But mindful that [w]hen the defendant challenges standing via motion dismiss, both trial and reviewing courts must accept true all material allegations the complaint, and must construe the complaint favor the complaining party.  Region Forest Serv. Timber Purchasers Council Alcock, 993 F.2d 800, 806 (11th Cir. 1993) (quotation marks omitted). may find standing based the facts alleged the complaint.  Shotz Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (emphasis added).  The plaintiffs complaint here clearly says that Plaintiff would not have expended its time and resources and incurred these anticipatory costs 2013 the mandate had not been schedule take effect until 2015, but instead would have spent its time, resources, and money other priorities.  The complaint also states that the delay enforcement the employer mandate has caus[ed] Plaintiff lose some the value the time and resources expended 2013.  Applying the well-known principle the time value money means that spending money other priorities 2013and reaping the benefits those investments between 2013 and 2015would financially benefit Kawa even eventually expends money 2015 comply with the mandate.  
Construing Kawas complaint liberally, understand Kawa have easily alleged facts sufficient demonstrate Article III standing its complaint.2 agree with the majoritys suggestion that Kawa has poorly explained how expending funds 2013 rather than 2015 would injure it.  However, partys deficient enunciation legal argument does not strip our duty view the complaint the light most favorable the plaintiff and determine whether has alleged facts sufficient show standing.  See Lawrence Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (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 for the purposes the motion. (quotation marks omitted)). course, view the issue standing has nothing with the merits Kawas complaint challenging the employer mandates delayed enforcement under the APA. fact, any discussion the merits here would inappropriate.  See, e.g., Mulhall UNITE HERE Local 355, 618 F.3d 1279, 1294 (11th Cir. 2010) (holding, after found standing following district courts dismissal for lack subject matter jurisdiction, that [t]he merits will for the district court decide remand).  However, would hold that Kawa has alleged facts that demonstrate has met the requirements Article III standing, and would remand and allow the District Court address the merits Kawas claims. therefore respectfully dissent.