Skip to content

Judicial Watch • Stamped Motion for Summary Judgment in Kawa v Lew

Stamped Motion for Summary Judgment in Kawa v Lew

Stamped Motion for Summary Judgment in Kawa v Lew

Page 1: Stamped Motion for Summary Judgment in Kawa v Lew

Category:Lawsuit

Number of Pages:18

Date Created:December 13, 2013

Date Uploaded to the Library:December 16, 2013

Tags:Lew, Kawa


File Scanned for Malware

Donate now to keep these documents public!

  • demand_answers

See Generated Text   ˅

Autogenerated text from PDF

Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
U.S. DISTRICT COURT
SOUTHERN DISTRICT FLORIDA
WEST PALM BEACH DIVISION
CASE NO.: 13-80990- DIMITROULEAS/Snow
KAWA ORTHODONTICS, LLP,
Plaintiff,
vs.
JACK LEW, al.,
Defendants.
___________________________________/
PLAINTIFF MOTION FOR SUMMARY JUDGMENT AND
MEMORANDUM LAW SUPPORT THEREOF
Plaintiff Kawa Orthodontics, LLP Kawa Ortho counsel and pursuant Rule the Federal Rules Civil Procedure and Local Rule 56.1, hereby moves this Court for
summary judgment all its claims. Kawa Ortho respectfully submits that there genuine
dispute any material fact and that entitled judgment matter law. The grounds
for this motion are set forth more fully the following Memorandum Law.
MEMORANDUM LAW
Introduction.
This lawsuit raises single, straightforward legal question: does the Executive Branch
have the authority ignore clear, congressionally-imposed deadline affecting hundreds
thousands employers and millions employees across the country matter
unquestionable importance. One the pillars the Patient Protection and Affordable Care Act ACA the employer mandate, which subjects certain large employers tax penalties
they not offer affordable, minimum essential health insurance coverage their
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
employees and their employees dependents.
Under the express terms the ACA, large
employers are obligated offer such coverage beginning January 2014. They also are
obligated report information the federal government about the insurance they (or not)
offer their employees and their employees dependents. about July 2013, Defendants
unilaterally postponed the effective date the employer mandate until 2015. 
The answer the question posed this lawsuit quite plainly No. Defendants 
delay the mandate violates the Administrative Procedures Act APA exceeds
Defendants statutory jurisdiction, authority, and limitations, contrary constitutional right,
power, privilege, and otherwise not accordance with law. Rejecting date enacted into
law Congress and picking new date more the Executive Branch liking the epitome
arbitrary and capricious agency action. The Court should reject Defendants lawlessness and
restore the rule law the Executive Branch implementation the ACA. should declare
Defendants postponement the employer mandate unlawful, set aside Defendants 
unlawful agency action, and reinstate the date established Congress. The Court also should
enjoin any further unauthorized delay the mandate effective date.
II.
Statutory Background.
Under the ACA, most large employers, defined employers who have more than
 full time equivalent employees, face tax penalties they not offer affordable, minimum
essential health insurance coverage their employees and their employees dependents.
U.S.C. 4980H. addition, large employers also have certain 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
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
any waiting period, the months during which coverage was available, monthly premiums for the
lowest-cost option, the employer plan 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.
III.
Factual Background.
Kawa Ortho incorporates herein reference the Statement Material Facts SOMF filing contemporaneously with this motion pursuant Local Rule 56.1. The material facts
are summarized follows.
Kawa Ortho Boca Raton based orthodontics and oral surgery practice that has been
providing orthodontic treatment services patients Miami-Dade, Broward, and Palm Beach
Counties for over years. SOMF Kawa Ortho employs more than full-time
equivalent employees and offers these employees choice different group health insurance
options employment benefit. SOMF Prior July 2013, Kawa Ortho spent
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
approximately 100 hours which has estimated value approximately $1.2 million and
excess $5,000 attorney fees and costs anticipation the employer mandate 
provisions the ACA taking effect January 2014. SOMF Kawa Ortho would not
have made these substantial expenditures time and resources 2013 the mandate had not
been scheduled take effect January 2014. SOMF Nor would have incurred
legal fees 2013 anticipation the mandate taking effect January 2014. Id. would
have waited least until 2014, not later, decide whether expend its time and resources
planning for the mandate, and may have decided not expend any time and resources the
matter all. Id. July 2013, the U.S. Department Treasury announced that the employer
mandate was being delayed until 2015. SOMF This announcement was formalized
July 2013, when the Internal Revenue Service issued Notice 2013-45, entitled Transition
Relief for 2014 Under 6055 6055 Information Reporting), 6056 6056 Information
Reporting) and 4980H (Employer Shared Responsibility Provisions). SOMF addition the employer mandate provisions the ACA, the new health care law
also contains provision requiring employers give notice their employees about the
availability health insurance coverage through newly created public health insurance
exchanges. SOMF The delay the mandate created uncertainty about the notice
requirement.
Out abundance caution, Kawa Ortho expended additional time and
incurred additional expenses, including approximately $4,000 additional attorney fees,
determining whether and how comply with this exchange notice requirement. Id. Because
the delay the employer mandate and continued uncertainty the health insurance market
Florida and across the country associated with the implementation the ACA, Kawa Ortho
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
anticipates that will have expend yet more time and resources 2014 preparing for the
mandate taking effect 2015. SOMF
The effect the delay both costly and widespread. According the White House
website, least 200,000 employers the United States employ more than employees.
SOMF 10. 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 having more than employees high 1.6 million. SOMF 11.
addition, according the Congressional Budget Office, the 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 one-year delay
penalties employers. SOMF 12.
IV.
Argument.
The Summary Judgment Standard.
Rule the Federal Rules Civil Procedure mandates the entry summary judgment
 against party who fails make showing sufficient establish the existence element
essential that party case, and which that party will bear the burden proof trial. 
Celotex Corp. Catrett, 477 U.S. 317, 322 (1986).
The moving party bears the initial responsibility informing the district court the
basis for the motion and identifying those portions the record that demonstrate the absence genuine issue material fact. Id. 323. Once the moving party has established the
absence genuine issue material fact, the non-moving party must beyond the pleadings
and his own affidavits, the depositions, answers interrogatories, and admissions
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
file, designate specific facts showing that there genuine issue for trial. Id. 324. The
non-moving party must rely more than conclusory statements allegations unsupported
facts. Evers General Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985). the question presented this litigation almost exclusively question law, there
are genuine disputes material fact and the matter can appropriately decided summary
judgment.
Defendants Delay the Employer Mandate Unlawful
Under the APA.
Under the APA, agency action must set aside 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). evaluate the
legality agency action, court must measure against the statutory directive. the
statute clear and unambiguous that the end the matter, for the court, well the
agency, must give effect the unambiguously expressed intent Congress. Bd. Governors the Fed. Reserve Sys. Dimension Fin. Corp., 474 U.S. 361, 368 (1986) (quoting Chevron
U.S.A. Inc. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)); see also Toro
Sec 707 F.3d 1224, 1228 (11th Cir. 2013); Silva-Hernandez U.S. Bureau Citizenship
Immigration Servs., 701 F.3d 356, 361 (11th Cir. 2012); Vill. Barrington Surface Transp.
Bd., 636 F.3d 650, 660 (D.C. Cir. 2011) (reiterating that agency may not exceed statute
clear boundaries); Fin. Planning Ass Sec. and Exch. Comm 482 F.3d 481, 490 (D.C. Cir.
2007) (an agency failure respect the unambiguous textual limitations statutory
provision fatal its regulatory efforts).
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
 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.
Defendants effectively conceded this fact when the U.S. Department Treasury posted
announcement its website stating that the employer mandate was being delayed until
 2015. 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 Ass 482 F.3d 490. For that reason alone, Defendants action 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 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. Dep Health and Human Servs.,
716 Supp.2d 1120, 1145 (N.D. Fla. 2010), aff part, rev part, 648 F.3d 1235 (11th Cir.
2011), aff part, rev part, Nat Fed. Indep. Bus. Sebelius, 132 Ct. 2566 (2012).
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
(C). simply picking alternative date apparently more their liking than the date set
Congress, Defendants also acted arbitrarily and capriciously. U.S.C. 706(2)(B).
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. Defendants action not transitional relief. deliberate and unequivocal
policy change with very real consequences for hundreds thousands businesses and millions employees across the country. SOMF 10-12. also will have significant fiscal
impact. According the Congressional Budget Office, the 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 one-year delay
penalties employers. SOMF 12. Simply put, Defendants unilateral postponement the
 employer mandate nothing short direct and deliberate disregard for 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 USA Inc. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842-43 (1984); see also Dimension Fin., 474 U.S. 368 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
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
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. The U.S. Court Appeals for the Eleventh
Circuit 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). the instant matter, Kawa Ortho asks the Court more than require Defendants apply the effective date the employer mandate unambiguously expressed Congress the ACA. Defendants who are, effect, altering the plain language the statute. IRS
Notice 2013-45, which formalized Defendants July 2012 policy decision delay the
 employer mandate, states that the obligations the employer mandate will fully
effective for 2015. Nowhere the ACA did Congress differentiate between the obligations
imposed employers with more than full-time equivalent employees 2014 and the
obligations imposed these large employers 2015. Again, the plain language the
statute states that the obligations the employer mandate under Section 4809H Title
 shall apply the months beginning after December 31, 2013 and that the obligations under
Sections 6055 and 6056 Title shall apply beginning after December 31, 2013. Pub.
No. 111-148, 1513(d) and 1514(d), 124 Stats. 119, 256-57. Kawa Ortho merely asking that
the plain language the statute restored. For that reason, Defendants transitional relief
not entitled to, nor should afforded, Chevron deference. addition, Aiken County, supra, another case that raise[d] significant questions
about the scope the Executive authority disregard federal statutes, the Court declared
that, [u]nder Article the Constitution and relevant Supreme Court precedents, the President
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
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: 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.
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.
725 F.3d 267.
The same true the instant matter. 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 January 2015. The constitutional authority Congress and the respect that the Executive and the Judiciary properly owe Congress
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
demands that Congress policy choice prevail. Defendants attempt delay the effective date
the employer mandate 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). result, Defendants action
violates the APA and must set aside.
Kawa Ortho Has Been Injured Defendants Unlawful Delay the
 Employer Mandate
Nor can there any genuine dispute material fact that Kawa Ortho has been injured Defendants unlawful delay the employer mandate that Kawa Ortho has standing
seek legal remedies for its injury. Kawa Ortho must satisfy three familiar requirements have
standing under Article III the Constitution: (1) injury-in-fact (2) 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., 733
F.3d 1323, 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, 119 Ed. 351 (1992)). These requirements are the irreducible minimum
required the Constitution for plaintiff proceed federal court. Id. **10-11 (citing Ne.
Fla. Chapter Associated Gen. Contractors Am. City Jacksonville, Fla., 508 U.S. 656,
664, 113 Ct. 2297, 2302, 124 Ed. 586 (1993)). addition past injury, plaintiff seeking injunctive relief must show sufficient
likelihood that will affected the allegedly unlawful conduct the future. Id. *11
(quoting Wooden Bd. Regents Univ. Sys. Ga., 247 F.3d 1262, 1284 (11th Cir. 2001)).
Because injunctions regulate future conduct, party has standing seek injunctive relief only
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
the party shows real and immediate opposed merely conjectural hypothetical 
threat future injury. Id.; Shotz, 256 F.3d 1081; Wooden, 247 F.3d 1284 (citing City
Los Angeles Lyons, 461 U.S. 95, 102, 103 Ct. 1660, 1665, Ed. 675 (1983)).
Kawa Ortho satisfies these elements way that cannot genuinely disputed.
clearly has been injured and will continue injured for long the employer mandate
delayed. expended substantial time and resources anticipation the mandate taking effect January 2014, the date set Congress the ACA. SOMF 3-4 and incurring
these anticipatory compliance costs, Kawa Ortho also incurred significant opportunity costs, 
namely the estimated 100 hours time expended researching the ACA and the employer
mandate and seeking and obtaining professional advice how best comply with the
mandate. SOMF opportunity cost recognizes that opportunity given
engaging particular activity part the cost that activity. See, e.g., Chronister Oil Co.
Unocal Ref. and Mktg., F.3d 462, 465 (7th Cir. 1994).
Had Kawa Ortho not spent
approximately 100 hours time researching and seeking and obtaining professional advice
how best comply with the mandate, would have spent this time generating new patients for
its practice. Id. Kawa Ortho estimates that could have generated approximately $1.2 million new revenue for its practice had not spent approximately 100 hours time determining how
best comply with the employer mandate. Id. well established that anticipatory compliance efforts constitute injury-in-fact 
for purposes standing. One particularly salient case, Roman Catholic Archdiocese New
York Sebelius, 907 Supp.2d 310 (E.D.N.Y. 2012), concerns challenge the ACA
 coverage mandate, which requires most group health insurance plans provide coverage for,
among other things, women preventative care and screening, including contraception,
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
sterilization, and related counseling, without any form cost-sharing. Roman Catholic
Archdiocese New York, five employers affiliated with the Roman Catholic Church challenged
the coverage mandate religious freedom grounds. The Court found that the plaintiffs had
standing:
Plaintiffs here have established present harms stemming from the future
operation the Coverage Mandate. These harms range from budgeting and
administrative costs incurred analyzing how update their health plans once
the Coverage Mandate becomes effective diversion funds away from
ministries Since each plaintiff employs numerous people, the practical
realities administering their employees health care coverage require plaintiffs undertake the preparations about which they now complain.
907 Supp.2d 329-30.
Kawa Ortho incurred these exact same type anticipatory
compliance costs, suffered injury result, and will continue injured unless the delay set aside. least two courts have held that anticipatory compliance costs constitute injuryin-fact legal challenges the employer mandate. Liberty University, Inc. Lew, 2013
U.S. App. LEXIS 14052, **26-28 (D.C. Cir. July 11, 2013) (finding standing because the
plaintiff may well incur additional costs because the administrative burden assuring
compliance with the employer mandate Oklahoma Sebelius, 2013 U.S. Dist. LEXIS
113232, **27-30 (E.D. Okla. Aug. 12, 2013) (same).
Based media reports, third court appears have reached this same conclusion
challenge the employer mandate, but the ruling was issued orally and transcript has not yet
been made available. The case Halbig Sebelius, Case No. 13-623 (RWR) (D. District
Columbia). The oral ruling was made October 22, 2013.
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
Numerous other courts also have held that anticipatory compliance costs constituted
 injury-in-fact legal challenges the individual mandate provisions the ACA. One
court declared, established that the taking current measures ensure future compliance
with statute can constitute injury. Mead Holder, Supp.2d 16, (D.D.C. 2011)
(finding standing based the plaintiffs needing rearrange their finances now anticipation the individual mandate). Other courts have ruled similarly. Calvey Obama, 792 Supp. 1262, 1268 (W.D. Ok. 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 Goudy-Bachman U.S. Dep Health and
Human Servs., 764 Supp.2d 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 Thomas More Law Ctr. Obama, 720 Supp.2d
882, 887-89 (E.D. Mich. 2010) (finding standing based the plaintiffs need reorganize
their affairs order comply with the individual mandate Florida, 716 Supp.2d
1145-47 (N.D. Fla. 2010) (finding standing based diversion resources from business
endeavors and reordering economic circumstances order comply with individual
mandate Courts found that plaintiffs had standing because they were already incurring the
opportunity costs having purchase health insurance such not purchasing new car,
reducing spending, diverting money from other business goals. Roman Catholic Archdiocese New York, 907 Supp. 329. course, the individual mandate survived these and other legal challenges.
generally Nat Fed. Indep. Bus. Sebelius, 132 Ct. 2566 (2012).
See
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
Other courts also have held that anticipatory compliance costs constitute injuries-infact contexts having nothing with the ACA. See Virginia Am. Booksellers Ass 484
U.S. 383, 392-93 (1988) (finding booksellers had standing because they w[ould] have take
significant and costly compliance measures Ass Private Sector Colls. Univs.
Duncan, 681 F.3d 427, 457-58 (D.C. Cir. 2012) (finding increased compliance costs constitute
injury fact sufficient confer standing); N.Y. Civil Liberties Union Grandeau, 528 F.3d
122 (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 Nat
Rifle Ass Magaw, 132 F.3d 272, 287 (6th Cir. 1997) (finding standing based compliance
costs). Clearly, Kawa Ortho anticipatory compliance efforts amply satisfy the injury-infact requirement Article III standing.
Nor Kawa Ortho injury the least bit hypothetical speculative. real. Kawa
Ortho has already expended substantial time and expense time determining how best comply
with the employer mandate before the January 2014 effective date. SOMF 3-4 and 78. also incurred substantial opportunity costs doing so. Id. This injury will continue unless
the unlawful delay set aside. Kawa Ortho also reasonably believes that, even the date set
Congress not reinstated, will have expend yet more time and expense anticipation the
new, unlawfully extended date. SOMF Consequently, there real and immediate 
threat future injury well. Houston, supra *11.
Kawa Ortho injury also causally connected Defendants delay the employer
mandate. fact, were not for the unlawful delay, Kawa Ortho would not have lost any the
value the substantial time and resources expended anticipation the mandate taking
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
effect January 2014. Like litigant who spends its time and resources preparing for trial,
only have the trial continued for lengthy period time, the loss the time and resources
Kawa Ortho has suffered and the opportunity costs has incurred are directly, not solely, the
result the delay. Also like litigant whose trial has been continued, Kawa Ortho undoubtedly
will have spend yet more time and resources preparing for the new date when the mandate
takes effect. SOMF
Finally, Kawa Ortho injury will redressed the Court awards the relief seeks.
Obviously, the Court were declare Defendants delay the mandate unlawful, set
aside the unlawful delay and reinstate the date established Congress, and enjoin Defendants
from any further delays, Kawa Ortho would regain the value the time and resources
expended and the opportunity costs incurred.
Thus, not only the undisputed facts
demonstrate that Kawa Ortho has standing challenge Defendants unlawful, unilateral delay
the mandate, but they also demonstrate that Kawa Ortho entitled relief.
Conclusion.
For the foregoing reasons, Kawa Ortho respectfully requests that the Court enter
summary judgment its favor its APA claim against Defendants and declare Defendants 
unilateral postponement the employer mandate unlawful. The Court should also set
aside Defendants unlawful agency action, reinstate the date established Congress, and enjoin
any further unauthorized delay the mandate effective date.
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
Dated: December 13, 2013
Respectfully submitted, Christopher Lunny
CHRISTOPHER LUNNY (FL 008982)
E-mail: chris@radeylaw.com
Secondary E-mail: cdemeo@radeylaw.com
HARRY THOMAS (FL 195097)
E-mail: hthomas@radeylaw.com
Secondary E-mail: jday@radeylaw.com
Radey, Thomas, Yon Clark, P.A.
Post Office Box 10967 (32302)
301 South Bronough Street, Suite 200
Talahassee, Florida 32301
(850) 425-6654 (phone)
(805) 425-6694 (facsimile) Paul Orfanedes
PAUL ORFANEDES
(Admitted Pro Hac Vice)
E-mail: porfanedes@judicialwatch.org
JAMES PETERSON
(Admitted Pro Hac Vice)
E-mail: jpeterson@judicialwatch.org
JUDICIAL WATCH, INC.
425 Third Street, SW, Suite 800
Washington, 20024
(202) 646-5172 (phone)
(202) 646-5199 (facsimile)
Attorneys for Plaintiff
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
CERTIFICATE SERVICE HEREBY CERTIFY that copy the foregoing was electronically served through the
Court CM/ECF system, unless otherwise noted, all counsel parties record the
Service List below, this 13th day December, 2013.
Caroline Lewis Wolverton
U.S. Department Justice, Civil Division
Post Office Box 883
Washington, D.C. 20001
caroline.lewis-wolverton@usdoj.gov Christopher Lunny
CHRISTOPHER LUNNY



Sign Up for Updates!