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Judicial Watch • Vining v. DC Health Benefit Exchange Complaint

Vining v. DC Health Benefit Exchange Complaint

Vining v. DC Health Benefit Exchange Complaint

Page 1: Vining v. DC Health Benefit Exchange Complaint

Category:Lawsuit

Number of Pages:8

Date Created:October 15, 2014

Date Uploaded to the Library:October 15, 2014

Tags:benefit, Vining, exchange, health


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THE SUPERIOR COURT THE DISTRICT COLUMBIA 
CIVIL DIVISION 

KIRBY VINING Franklin Street, N.E.
Washington, 20002
Plaintiff, 
vs. 
EXECUTIVE BOARD THE
DISTRICT COLUMBIA HEALTH
BENEFIT EXCHANGE AUTHORITY, 
1100 15th Street, N.W., 8th Floor 
Washington, 20005, 
and 
MILA KOFMAN, her official 
capacity Executive Director the 
District Columbia Health Benefit Exchange Authority, 
1100 15th Street, N.W., 8th Floor 
Washington, 20005, 
and 
DISTRJ.CT COLUMBIA HEAL 
BENEFIT EXCHANGE AUTHORITY, 
1100 15th Street, 8th Floor 
Washington, 20005, 
Defendants. COMPLITED 
Serve Executive Office the Mayor 
for the District Columbia,
1350 Pennsylvania Avenue, N.W., 
Suite 316, Washington, 20004; and
Serve Office the Attorney General 
for the District Columbia, 441 4th 
Street, N.W., 6th Floor South, 

Washington, D.C. 20001. 

1,11!1111111111111111111111111 

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 
AND, THE ALTERNATIVE, PETITION FOR 

WRIT MANDAMUS 

Plaintiff Kirby Vining, and through his attorneys, brings this actjon for declaratory 
and injunctive relief against the Executive Board the District Columbia Health Benefit 
Exchange Authority, Mila Kofman, her official capacity Executive Director the District Columbia Health Benefit Exchange Authority, and the District Columbia Health Benefit 
Exchange Authority. Plaintiff seeks judgment declaring that the U.S. Congress' participation the District Columbia's "Small Business Exchange'' unlawful and injunction 
prohibiting Defendants from allowing Congress participate the exchange expending 
taxpayer dollars Congress' participation. the alternative, Plaintiff petitions for writ 
mandamus ordering Executive Director Kofi.nan cease and desist from allowing Congress 
participate the exchange. grounds therefor, Plaintiff alleges follows: 
PARTIES Plaintiff Kirby Vining taxpayer the District Columbia, residing 
Franklin Street, N.E., Washington, 20002. has been ta,"Xpayer, residing that address 
since 1986. taxpayer the District Columbia, Plaintiff has the right initiate suit 
equity prevent the illegal use public funds. Calvin-Humphrey District Columbia, 340 
A.2d 795, 799 (D.C. 1975); see also District Columbia Common Cause District 
Columbia, 858 F.2d (D.C. Cir. 1988); Roberts Bradfield, App. D.C. 453, 459 (D.C. 
1898). Defendant Executive Board the District Columbia Health Benefit Exchange 
Authority ("the Executive Board") the governing body the District Columbia Health 
Benefit Exchange. D.C. Code  31-3171.0S(a). The Executive Board has the express authority sue and sued. D.C. Code 31-3171.06(c)(2). Defendant Mila Kofman the Executive Director the District Columbia Health Benefit Exchange Authority ("the Executive Director"). This action brought against Executive Director Kofman her official capacity. Defendant District Columbia Health Benefit Exchange Authority 
independent authority the District Columbia government. D.C. Code  31-3l .02(a). 
JURISDICTION The Court has jurisdiction over this action pursuant D.C. Code 11-921(a). 
FACTUAL ALLEGATIONS The Patient Protection and Affordable Care Act ('.ACA") requires each State and 
the District Columbia establish two marketplaces for the purchase health insurance: "American Health Benefit Exchange" for individuals ("the Individual Exchange") and "Small Business Health Options Program" for small businesses ("the Small Business Exchange" "the Exchange"). March 2012, the Cowicil the District Columbia ("D.C. Council") enacted 
"The Health Benefit Exchange Authority Establislunent Act 2011" ("the Exchange Act") 
comply with the ACA. The Exchange Act established the "District Columbia Health Benefit Exchange 
Authority" ("the Exchange Authority" "the Authority") and directed the Exchange Authority create the two exchanges required the ACA. The Exchange Act also created executive board and executive director. 
Under the Act, the Executive Board governs the Exchange Authority generally and the Executive 
Director serves chief administrative officer and directs, administers, and manages the 
operations the Authority. 
10. finance the Exchange Authority, the Act created the "Distl'ict Columbia Health Benefit Exchange Authority Fund" ("the Exchange Fund"). Among other monies, the Exchange Fund consists monies from the General Fund -taxpayer money -appropriated line item the annual budget approved the D.C. Council. 

11. Fiscal Year 2013, the D.C. Council appropriated $10,915,000 from the General Fund the Exchange Fund. 

12. Fiscal Year 2014, the D.C. Council appropriated $66,140,000 from the General Fund the Exchange Fund. October 2014, the D.C. Council had not approved budget for Fiscal Year 2015. 
14. 
Monies appropriated from the General Fund the Exchange Fund were used establish the Small Business Exchange and, information and belief, are being used administer and operate the Exchange. 

15. The Small Business Exchange began operating October 2013. 

16. 
Under the Exchange Act, small business single employer having fewer full-time employees. D.C. Code 31-3171.01(l6)(A). Only small businesses that elect provide coverage all eligible employees all eligible employees principally employed the District Columbia are eligible participate the Small Business Exchange. D.C. Code 313171.01(11). 

17. 
Since November 2013, the Exchange Authority has allowed the U.S. House Representatives ("the House") and the U.S. Senate ("the Senate") (collectively "Congress") 

use the Small Business Exchange provide health insurance some (but not all) congressional 
employees, including members Congress, and these employees' spouses and dependents. 
18. all relevant times, the Executive Board and Executive Director Kofman knew that the House and the Senate were participating the Small Business Exchange provide health insurance some (but not all) congressional employees. Beginning early November 2013, the Exchange Authority conducted outreach efforts the House and Senate about Congress' participation the Small Business Exchange and provided weekly support sessions assist members Congress and their staffs with enrollment. These outreach efforts, weekly support sessions, and Congress' participation the Exchange generally were discussed November 13, 2013 meeting the Executive Board, and November 20, 2013, Executive Director Kofman testified before the Senate's Small Business and Entrepreneurship Committee about Congress' participation the Small Business Exchange. information and belief, the Executive Board and Executive Director Kofman authorized and approved Congress' participation the Small Business Exchange. 

19. 
Neither the House nor the Senate small business under the Exchange Act, each has more than full-time employees. 

20. 
When Congress applied participate the Small Business Exchange, representatives falsely asserted that the House and the Senate each employ fewer full-time employees. Specifically, records provided the Exchange Authority response Freedom Information Act request show that both the House and the Senate falsely claimed that they each employ only full-time employees. 

21. information and belief, the Executive Board and Executive Director Kofman 
knew that the House and the Senate each have more than full-time employees and knew 
should have known that Congress' certifications the contrary were false. 
22. least 12,359 congressional employees and their spouses and dependents had 
obtained health insurance through the Small Business Exchange February 2014. These 
12,359 persons represent approximately percent the 14,289 persons enrolled the Small 
Business Exchange between October 2013 and September 2014. 
COUNT ONE 
(Taxpayer Action -Declaratory and Injunctive Relief) 

23. 
Plaintiff reaffirms paragraphs 1-22 though fully restated herein. 

24. 
Under the Exchange Act, both the House and the Senate are ineligible 

participate the Small Business Exchange because they each employ more than full-time 
employees. 
25. allowing Congress participate the Small Business Exchange, Defendants 
are exceeding their lawful powers and operating the Small Business Exchange illegal, 
unlawful, and ultra vires manner. 
26. Because the Small Business Exchange financed through measurable 
appropriations from the General Fund and Defendants are exceeding their lawful powers and 
operating the Small Business Exchange illegal, unlawful, and ultra vires manner, 
Defendants have injured Plaintiff irreparably his/her interests taxpayer and will continue injure Plaintiff irreparably unless and until Congress' participation the Exchange declared 
unlawful and Defendants are enjoined from allowing Congress continue participate the 
Exchange. 
27. Plaintiff has adequate alternative remedy law. 
COUNT TWO (Writ Mandamus) 
28. 
Plaintiff reaffirms paragraphs 1-27 though fully restated herein. 

29. 
Because the House and the Senate each employ more than full-time 

employees, Defendant Kofman had clear, non-discretionary, ministerial duty deny them 
participation the Small Business Exchange. 
30. Defendant Kofman has failed and failing carry out this duty and will 
continue fail carry out this duty unless ordered so. taxpayer and resident the District Columbia, Plaintiff has clear and 
indisputable right have Defendant Kofman carry out her public duties. 
32. Plaintiffhas adequate alternative means obtain relief. 
WHEREFORE, Plaintiff prays that the Court: (a) declare the House's and the Senate's participation the Small Business Exchange unlawful; (b) enjoin Defendants from 
continuing allow the House and the Senate participate the Small Business Exchange, minimum, from expending further taxpayer funds the House's and Senate's participation the Small Business Exchange; issue writ mandamus ordering Defendant Kofman 
deny the House and the Senate further participation the Small Business Exchange; (d) award 
Plaintiff reasonable attorneys fees and costs; and order such other and further relief the 
Court finds just and equitable. 
Dated: October 15, 2014 

D.C. 
Bar No. 995749 Paul Orfanedes 

D.C. 
Bar No. 429716 JUDICIAL WATCH, !NC. 

425 Third Street S.W., Suite 800 Washington, 20024 Phone: (202) 646-5172 
Email: mbekesha@juclicialwatch.org 
Counsel for Plaintiff Kirby Vining