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Judicial Watch • En Banc Amicus Brief

En Banc Amicus Brief

En Banc Amicus Brief

Page 1: En Banc Amicus Brief

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Number of Pages:17

Date Created:October 2, 2014

Date Uploaded to the Library:January 02, 2015

Tags:Banc, Amicus, Supreme Court, IRS


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ORAL ARGUMENT SCHEDULED FOR DECEMBER 17, 2014 
 
 
APPEAL NO. 14-5018 
____________ THE 
UNITED STATES COURT APPEALS  
FOR THE DISTRICT COLUMBIA CIRCUIT 
____________ 
 
JACQUELINE HALBIG, al., 
 
Appellants, 
 
SYLVIA MATTHEWS BURWELL, Her Official Capacity U.S. Secretary Health And Human Services, al., 
 
Appellees. 
____________ 
 
AMICUS CURIAE BRIEF JUDICIAL WATCH, INC. SUPPORT APPELLANTS 
____________ APPEAL FROM THE U.S. DISTRICT COURT  
FOR THE DISTRICT COLUMBIA 
____________ 
 
Michael Bekesha 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington, D.C. 20024 
(202) 646-5172 
 
Counsel for Amicus Curiae 
 
CORPORATE DISCLOSURE STATEMENT 
 
 Judicial Watch, Inc. not-for-profit, educational organization that has parent company, and publicly held corporation has 10% greater ownership interest Judicial Watch, Inc. 
        
/s/ Michael Bekesha   
  
STATEMENT REGARDING CONSENT FILE  
AND SEPARATE BRIEFING 
 
 All parties have consented the filing this brief.  Pursuant Rule 29(c) the Federal Rules Appellate Procedure, Judicial Watch, Inc. states that counsel for party authored this brief whole part, and counsel party made monetary contribution intended fund the preparation submission this brief. person other than Judicial Watch, Inc. its counsel made monetary contribution its preparation submission.  Judicial Watch, Inc. filed notice its intent participate amicus curiae October 2014. 
 Pursuant D.C. Circuit Rule 29(d), Judicial Watch, Inc. certifies that separate brief necessary because not aware any other amicus curiae brief that will address the arguments raised this brief.  Specifically, this brief will focus this Courts recent ruling Re: Aiken County, 725 F.3d 255 (D.C. Cir. 2013). date, neither the parties nor the other amici curiae have applied the facts this case.  Nor have they addressed the significant questions concerning the Executives authority disregard clear and unambiguous laws passed the Legislative Branch.  
 
       /s/ Michael Bekesha  
TABLE CONTENTS 
 
TABLE CONTENTS ............................................................................................ 
 
TABLE AUTHORITIES .................................................................................... 
 
INTEREST JUDICIAL WATCH, INC. .............................................................. 
 
ARGUMENT ............................................................................................................. This Courts Ruling Aiken County Highly Probative ................................................................................ 
 
 II. Both the Plain Language and the 
  Congressional Purpose Section  
  36B Are Clear and Unambiguous ......................................................... 
 
CONCLUSION .......................................................................................................... 
 
CERTIFICATE COMPLIANCE ....................................................................... 
  
TABLE AUTHORITIES 
Cases 
 
Bd. Governors the Fed. Reserve Sys.  
 Dimension Fin. Corp., 474 U.S. 361 (1986) ...............................................  Chevron U.S.A. Inc. Natural Res. Def. Council, Inc., 
 467 U.S. 837 (1984)............................................................................. 
 
Fin. Planning Assn Sec. and Exch. Commn, 
 482 F.3d 481 (D.C. Cir. 2007) ......................................................................... 
 
Harry Marchant, 291 F.3d 767 (11th Cir. 2002) ................................................... Aiken County, 725 F.3d 255 (D.C. Cir. 2013) ...................................... 
 
Mayo Found. for Med. Educ. Research 
 United States, 131 Ct. 704 (2011)  .............................................................. 
 
Meriden Trust and Safe Deposit Co.  
 Fed. Deposit Ins. Corp., F.3d 449 (2d Cir. 1995)  ................................. 6-7 
 
Printz United States, 521 U.S. 898 (1997)  ............................................................ 
 
Rust Sullivan, 500 U.S. 173 (1991)  ....................................................................... 
 
Silva-Hernandez U.S. Bureau Citizenship Immigration Servs., 701 F.3d 356 (11th Cir. 2012) .................................... 
 
Vill. Barrington Surface Transp. Bd.,  
 636 F.3d 650 (D.C. Cir. 2011) ......................................................................... Authorities upon which Judicial Watch, Inc. chiefly relies are marked with asterisks. 
 
Statutes, Rules, and Regulations U.S.C.  706(2)(A)  ............................................................................................. U.S.C.  706(2)(B)  ............................................................................................. U.S.C.  706(2)(C)  ............................................................................................. U.S.C.  36B(c)(2)(A)(i) ................................................................................... 
 
INTEREST JUDICIAL WATCH, INC. 
 Judicial Watch, Inc. (Judicial Watch) not-for-profit, educational organization that seeks promote transparency, integrity, and accountability government and fidelity the rule law.  Judicial Watch regularly monitors significant developments the court systems and the law, pursues public interest litigation, and files amicus curiae briefs issues public concern.  Judicial Watch regularly files amicus curiae briefs means advance its public interest mission and has appeared amicus curiae this Court number occasions. 
 Judicial Watch has interest promoting the rule law and concerned that the Governments expansion Section 36B the Patient Protection and Affordable Care Act (ACA) authorize the availability refundable tax credits beyond the clear and unambiguous language the statute disrupts the deliberate balance powers intended the Framers. addition, Judicial Watch seeks highlight recent case decided this Court. Aiken County, 725 F.3d 255 (D.C. Cir. 2013) (Aiken County), this Court addressed the importance the constitutional system separation powers.  Yet, date, neither the parties nor the other amici curiae have applied Aiken County the facts this case.  Nor have they addressed the significant 
questions concerning the Executives authority disregard clear and unambiguous laws passed the Legislative Branch. light Aiken County, clear that the issue before this Court great importance because unquestionably implicates the scope the Executives authority.  Specifically, Appellants ask this Court reaffirm the basic principle that the Executive Branch cannot disregard federal statutes favor its own policy choices and reverse the District Courts ruling. the lower courts ruling were stand, the constitutional system separation powers would significantly altered. 
ARGUMENT 
 Appellants brought this action under the Administrative Procedure Act (APA) challenging the Internal Revenue Service (IRS) Rule authorizing the receipt refundable tax credits individuals who purchase insurance Exchange established one the states well individuals who purchase insurance Exchange established the federal government.  Under the APA, the Court shall hold unlawful and set aside agency action, findings, and conclusions found (A) arbitrary, capricious, abuse discretion, otherwise not accordance with law; (B) contrary constitutional right, power, privilege, immunity; (C) excess statutory jurisdiction, authority, limitations, short statutory right. U.S.C.  706(2)(A), (B), (C). This Courts Ruling Aiken County Highly Probative. Aiken County, case that raise[d] significant questions about the scope the Executives authority disregard federal statutes, this Court declared that [u]nder Article the Constitution and relevant Supreme Court precedents, the President must follow statutory mandates long there appropriated money available and the President has constitutional objection the statute.  725 F.3d 257, 259. issue Aiken County was petition for writ mandamus that sought compel the Nuclear Regulatory Commission adhere statutory deadline for completing the licensing process for approving disapproving application store nuclear waste Yucca Mountain Nevada. the Court explained,  
[i]f the President has constitutional objection statutory mandate the President may decline follow the law unless and until final Court order dictates otherwise.  But the President may not decline follow statutory mandate simply because policy objections. course, Congress appropriates money for statutorily mandated program, the Executive obviously cannot move forward.  But absent lack funds claim unconstitutionality that has not been rejected final Court order, the Executive must abide statutory mandates.  These basic constitutional privileges apply the President and subordinate executive agencies. Aiken County, 725 F.3d 259. granting the petition, the Court concluded: overstatement say that our constitutional system separation powers would significantly altered were allow executive and independent agencies disregard federal law the manner asserted this case the Nuclear Regulatory 
Commission.  Our decision today rests the constitutional authority Congress and the respect that the Executive and the Judiciary properly owe Congress the circumstances here. 
 
Id. 267. 
 The same true here.  There are constitutional concerns with limiting the receipt refundable tax credits only individuals who purchase health insurance coverage through Exchange established one the states.  The Executive Branch simply seeks replace Congress policy choice about who eligible receive refundable tax credits with its own. will addressed below, the plain language and express purpose Section 36B make clear Congress policy choice.  The Constitutional authority Congress  well the respect that the Executive and the Judiciary owe Congress  demands that Congress policy choice prevails.  Section 36B should applied written. 
II. Both the Plain Language and the Congressional  
 Purpose Section 36B Are Clear and Unambiguous. considering the legality agency action, court must measure agencys action against the statutory directive.  If the statute clear and unambiguous that the end the matter, for the court, well the agency, must give effect the unambiguously expressed intent Congress. Bd. Governors Fed. Reserve Sys. Dimension Fin. Corp., 474 U.S. 361, 368 (1986). addition, this Court has reiterated, agency has exceeded 
statutes clear and unambiguous boundaries, the agencys interpretation unlawful.  Vill. Barrington Surface Transp. Bd., 636 F.3d 650, 660 (D.C. Cir. 2011). 
 Congress speaks through the laws enacts (Aiken County, 725 F.3d 260) and the text Section 36B clear and unambiguous.  Section 36B plainly states that only individual who purchases health insurance coverage through Exchange established the State under section 1311 the [ACA] eligible receive refundable tax credits. U.S.C.  36B(c)(2)(A)(i). without question that Congress intended for only individuals who purchase health insurance coverage through Exchange established one the states eligible receive refundable tax credits.  Yet, the IRS interpreted Section 36B more broadly. has authorized the receipt refundable tax credits also individuals who purchase health insurance coverage through Exchange established the federal government. expanding the availability refundable tax credits beyond its statutory authority, the IRS fail[ed] respect the unambiguous textual limitations Section 36B.  Fin. Planning Assn Sec. and Exch. Commn, 482 F.3d 481, 490 (D.C. Cir. 2007). 
 The IRSs interpretation also not entitled Chevron deference.  Where, here, Congress has unambiguously expressed [its] intent through the plain language statute, deference afforded agency.  Chevron U.S.A. Inc. National Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); see also Dimension Fin. Corp, 474 U.S. 368 ([T]he 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 U.S. Bureau Citizenship Immigration Servs., 701 F.3d 356, 361 (11th Cir. 2012).  Courts must begin examining the text the statute determine whether its meaning clear.  Harry Marchant, 291 F.3d 767, 770 (11th Cir. 2002).  They must also presume that Congress said what meant and meant what said.  Id.  The plain language Section 36B clear and unambiguous.  Section 36B must applied written.  
 Even the IRSs interpretation were entitled Chevron deference  which not because Section 36B clear and unambiguous  the IRS has impermissibly authorized extension the law which does not harmonize with the clear purpose Congress.  See Rust Sullivan, 500 U.S. 173, 184 (1991) (noting that permissible agency interpretation the statute one that reflects plausible construction the plain language the statute and does not otherwise conflict with Congress expressed intent); Meriden Trust and Safe Deposit Co. Fed. Deposit Ins. Corp., F.3d 449, 453 (2d Cir. 1995) (stating that agencys interpretation statute will reversed if appears from the statute its 
legislative history that the [agencys] interpretation contrary Congress intent).   
 When enacted Section 36B, Congress made deliberate policy choice provide refundable tax credits only individuals who purchase health insurance coverage through Exchange established one the states.  Congress heard extensive testimony criticizing healthcare system operated the federal government.  Also because Congress generally cannot require states implement federal laws (Printz United States, 521 U.S. 898 (1997)), its policy decision provide refundable tax credits only individuals who purchase health insurance coverage through Exchange established one the states was Congress attempt strongly encourage states establish Exchanges.  Therefore, Congress chose not create nationalized healthcare system.  Instead, chose for the federal government establish Exchange only state failed so.  Authorizing the receipt refundable tax credits individuals who purchase health insurance through Exchange established the federal government would not incentivize the states create Exchanges. may even encourage some the States not create Exchange.  The IRS Rule therefore directly contradicts Congress policy choice. 
 Similarly, agencys interpretation must based permissible construction the statute.  The court must therefore determine whether the 
agencys interpretation manifestly contrary the statute.  See Chevron, 467 U.S. 843-44; see also Mayo Found. For Med. Educ. Research United States, 131 Ct. 704, 711 (2011) (finding that deference the agencys interpretation was appropriate because the statute did not speak with the precision necessary definitively answer the question and the agencys interpretation was not manifestly contrary the statute).  Unlike the statute Mayo, Section 36B provides all the information needed definitively answer the question who eligible receive refundable tax credits. specifically authorizes the receipt refundable tax credits individuals who purchase health insurance coverage through Exchanges established the State. U.S.C.  36B(c)(2)(A)(i).  The federal government not state, and Exchange established the federal government not Exchange established state.  Congress spoke with the precision necessary leave doubt what sought accomplish, any extension the IRS contradictory interpretation and excess its authority.  Chevron, 467 U.S. 843-44. 
CONCLUSION 
 The plain language Section 36B clear and unambiguous.  Congress made unequivocal policy decision provide refundable tax credits individuals who purchase health insurance coverage through Exchange established one the states.  The IRS impermissibly interpreted Section 36B 
authorize the receipt refundable tax credits individuals who purchase health insurance coverage through Exchange established the federal government.  Because the IRS Rule contrary the plain language and the express purpose Section 36B, in excess statutory jurisdiction, authority, limitations, contrary its constitutional right, power, [or] privilege, and not accordance with law. U.S.C.  706(2)(A), (B), and (C).  For the foregoing reasons, Judicial Watch respectfully requests that this Court reaffirm the basic principle that the Executive Branch cannot disregard federal statutes favor its own policy choices and reverse the lower courts ruling. 
Dated:  October 2014Respectfully Submitted, 
 
/s/ Michael Bekesha   
Michael Bekesha 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington,  20024 
(202) 646-5172 
 
Counsel for Judicial Watch, Inc. 
 
  
CERTIFICATE COMPLIANCE 
 The undersigned certifies that this brief complies with the type-volume limitations Fed. App. 32(a)(7) and Circuit Rule 32(a)(2).  The brief, excluding exempted portions, contains 1,969 words (using Microsoft Word 2010), and has been prepared proportional Times New Roman, 14-point font. 
 
       /s/ Michael Bekesha   
 
CERTIFICATE SERVICE hereby certify that this 3rd day October 2014, filed via the CM/ECF system and hand copies the foregoing with the Court and served via the CM/ECF system all counsel who are registered CM/ECF users. 
 
       /s/ Michael Bekesha