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Judicial Watch • Kawa v Treasury Writ of Cert

Kawa v Treasury Writ of Cert

Kawa v Treasury Writ of Cert

Page 1: Kawa v Treasury Writ of Cert

Category:Legal Document

Number of Pages:61

Date Created:May 13, 2015

Date Uploaded to the Library:May 19, 2015

Tags:mandate, employer, standing, Injury, Kawa, affordable, Department of the Treasury, Congress, treasury, Florida, White House, Supreme Court, court, EPA, IRS


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No. ___ THE
Supreme Court the United States
_________
KAWA ORTHODONTICS, LLP.
Petitioner,
SECRETARY, U.S. DEPARTMENT
THE TREASURY, AL.,
Respondents.
_________ Petition for Writ Certiorari
the United States Court Appeals
for the Eleventh Circuit
_________
PETITION FOR WRIT CERTIORARI
_________
Michael Bekesha
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street, S.W., Ste. 800
Washington, 20024
(202) 646-5172
mbekesha@judicialwatch.org
Counsel for Petitioner
QUESTION PRESENTED law, the employer mandate provisions the
Patient Protection and Affordable Care Act were set take effect January 2014. responsible
employer, Kawa Orthodontics, LLP 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.
Like any rational employer, would have waited
and spent its time and money more timely
priorities. Defendants subsequently delayed the
mandate until least 2016. result the delay,
Kawa Ortho lost least some the value the
time and money spent 2013 preparing for the
mandate take effect 2014. the delay set
aside, Kawa Ortho expenditures will not have been
premature. will regain some, not all, the
value the time and resources expended, and the
opportunity costs incurred will not have been
wasted.
Contrary commonsense, basic business
practices, and legal precedent, judges for the
Eleventh Circuit held that Kawa Ortho was not
injured. The question presented is:
Whether entity that loses the value the
substantial time and resources prematurely
expended and the time value the money spent anticipatory compliance costs sufficiently
injured confer Article III standing.
PARTIES THE PROCEEDINGS
Petitioner Kawa Ortho1 responsible, large
employer sued Appellees Jack Lew, Secretary
the U.S. Department the Treasury, the U.S.
Department the Treasury, Daniel Werfel, Acting
Commissioner the Internal Revenue Service, and
the
Internal
Revenue
Service
(collectively
Defendants
Petitioner not publicly-owned corporation.
iii
TABLE CONTENTS
QUESTION PRESENTED .........................................
PARTIES THE PROCEEDINGS ........................
TABLE CONTENTS ........................................... iii
TABLE AUTHORITIES .....................................
PETITION FOR WRIT CERTIORARI .............................................1
DECISIONS BELOW..................................................1
JURISDICTION ..........................................................1
CONSTITUTIONAL AND
STATUTORY PROVISIONS
INVOLVED .......................................................2
STATEMENT THE CASE ....................................2
Statutory Background ...........................2
II.
Factual Background ..............................4
III.
The Course Proceedings ....................6
REASONS FOR GRANTING
THE PETITION ...............................................7
Whether Prematurely
Incurring Compliance
Costs Confers Article III
Standing Important
Federal Question ...................................7
II.
The Panel Decision
Conflicts with this Court
Precedent .............................................11
III.
The Panel Decision
Conflicts with Decisions Other Circuits ..................................15
IV.
The Underlying Issue Paramount Importance ...................16
CONCLUSION ..........................................................22
APPENDIX ................................................................1a
Judgment the U.S. Court Appeals for the
Eleventh Circuit ..................................1a
Opinion the U.S. Court Appeals for the
Eleventh Circuit ..................................2a
Order Memorandum the
U.S. District Court for
the Southern District
Florida Granting Defendants
Motion Dismiss ..............................21a
Per Curiam Order
the U.S. Court Appeals
for the Eleventh Circuit
Denying Petitions for
Rehearing and Rehearing Banc ..............................................28a
TABLE AUTHORITIES
CASES
Association Private Sector Colls. Univs. Duncan,
681 F.3d 427 (D.C. Cir. 2012) ........................15
Atlantic Mut. Ins. Co. Comm
523 U.S. 382 (1998) ..........................................8
Board Governors the Fed. Reserve
Sys. Dimension Fin. Corp.,
474 U.S. 361 (1986) ............................ 16, 17,
Chevron U.S.A. Inc. Natural
Res. Def. Council, Inc.,
467 U.S. 837 (1984) ..................................17,
Florida U.S. Dep Health and
Human Servs.,
780 Supp. 1256
(N.D. Fla. 2011) ..............................................13
Florida U.S. Dep Health and
Human Servs.,
648 F.3d 1235 (11th Cir. 2011) ................12,
Havens Realty Corp. Coleman,
455 U.S. 363 (1982) ........................................14 Aiken County,
725 F.3d 255 (D.C. Cir. 2013) ...... 17, 18, 19,
vii
Liberty University, Inc. Lew,
733 F.3d (4th Cir. 2013) ............................15
N.Y. Civil Liberties Union Grandeau,
528 F.3d 131 (2d Cir. 2008) ............................16
National Fed. Indep. Bus. Sebelius, U.S. __, 132 Ct. 2566 (2012) ..................12
National Rifle Ass Magaw,
132 F.3d 272 (6th Cir. 1997) ..........................16
State Farm Mut. Auto Ins. Co. Dole,
802 F.2d 474 (D.C. Cir. 1986) ........................16
Till SCS Credit Corp.,
541 U.S. 465 (2004) ..........................................8
Virginia American Booksellers
Association, Inc., 484 U.S. 383 (1988) .....13,
STATUTES, RULES, AND REGULATIONS U.S.C. 4980H .................................................3, U.S.C. 6055 ..........................................................3 U.S.C. 6056 ..........................................................3 U.S.C. 1254(1)......................................................2 Fed. Reg. 8544 (Feb 12, 2014)................................6
viii
Pub. No. 111-148, 1502(e),
124 Stat. 119, 252 .......................................3,
Pub. No. 111-148, 1513(d),
124 Stat. 119, 256 .......................................3,
Pub. No. 111-148, 1514(d),
124 Stat. 119, 257 ................................... 3-4,
MISCELLANEOUS
Agency for Healthcare Research
and Quality, Medical Expenditure
Panel Survey, Table I.A.1 Number private-sector establishments
firm size and selected characteristics:
United States, 2012 ........................................5 Herwitz Barrett, Accounting
for Lawyers 221 (2d ed. 1997) ..........................8
Encyclopedia Banking Finance 1015
(9th ed. 1991) ....................................................8
Fact Sheet, Final Regulations
Implementing Employer Shared
Responsibility Under the Affordable
Care Act for 2015, U.S. Department the Treasury .............................................5,
Letter from Douglas Elmendorf,
Director, Congressional Budget
Office, the Hon. Paul Ryan,
Chairman, Committee the Budget,
U.S. House Representatives,
Re: Analysis the Administration
Announced Delay Certain
Requirements Under the Affordable
Care Act, July 30, 2013 ....................................5
Louise Randofsky and Theo Francis,
Health-Law Mandate Put Off Again,
The Wall Street Journal (Feb. 11, 2014) .........6
The White House, The Affordable
Care Act Increases Choice and
Sav[es] Money for Small Businesses ..............4
PETITION FOR WRIT CERTIORARI
Petitioner Kawa Ortho respectfully petitions for writ certiorari review the judgment the
United States Court Appeals for the Eleventh
Circuit. does because the court appeals
ruling conflicts with precedent both this Court and
other courts appeals and involves important
federal question:
Whether entity that loses the value the substantial time and resources
prematurely expended and the time
value the money spent
anticipatory
compliance
costs
sufficiently injured confer Article III
standing.
DECISIONS BELOW
The court appeals ruled 2-1, affirming the
lower court judgment. The opinion the court
appeals reported 773 F.3d 243. The panel
opinion reproduced App. 2a-10a, and the
dissenting opinion reproduced App. 11a-20a.
The unpublished ruling the district court
reproduced App. 21a-27a. The denial the
petitions for rehearing and rehearing banc
reprinted App. 28a-29a.
JURISDICTION
The court appeals issued its opinion
December 2014 and its denial the petitions for
rehearing and rehearing banc February 13,
2015. This Court has jurisdiction under U.S.C.
1254(1).
CONSTIUTIONAL AND STATUTORY
PROVISIONS INVOLVED the question presented whether Kawa
Ortho was sufficiently injured confer standing, the
only relevant constitutional statutory provision
Article III, Section the U.S. Constitution: The
judicial power shall extend controversies
which the United States shall party.
STATEMENT THE CASE
The
underlying
issue
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? Neither the district court nor the court appeals, however, answered this question because
both courts incorrectly concluded that Kawa Ortho
was not sufficiently injured confer Article III
standing.
Statutory Background.
Under the Patient Protection and Affordable
Care Act 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 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 4980H 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 agency the power delay these requirements.
II.
Factual Background.
Kawa Ortho large employer that
employs more than full-time equivalent
employees. App. 12a. Prior July 2013, Kawa
Ortho expended substantial time and resources,
including money spent legal fees and other costs, anticipation the employer mandate
provisions. Id. Kawa Ortho incurred these costs
order comply with the mandate. Id. 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. Id. would have spent its time and money
other priorities instead. Id. may not have
spent the money all and accrued interest it. July 2013, the U.S. Department
Treasury announced that the employer mandate
was being delayed until 2015. Id. 3a.
Defendants delay the mandate diminished
the value the time and money expended Kawa
Ortho anticipation the mandate taking effect
January 2014. Id. 12a.
According the White House website,
least 200,000 employers the United States employ
more than employees. The White House, The
Affordable Care Act Increases Choice and Sav[es]
Money for Small Businesses
Another
government source, the Agency for Health Research
and Quality the U.S. Department Health and
Human Services, reports that the number
employers the United States (like Kawa Ortho)
having more than employees high 1.6
million.
Agency for Healthcare Research and
Quality, Medical Expenditure Panel Survey, Table
I.A.1 Number private-sector establishments
firm size and selected characteristics: United States,
2012. addition, the Congressional Budget Office
predicted that the July 2013 delay the
employer mandate would result estimated
loss $10 billion penalty payments employers
and approximately million fewer people are
expected enrolled employment-based
coverage 2014 than the number previously
projected, primarily because the delay penalties employers. Letter from Douglas Elmendorf,
Director, Congressional Budget Office, the Hon.
Paul Ryan, Chairman, Committee the Budget,
U.S. House Representatives, Re: Analysis the
Administration Announced Delay Certain
Requirements under the Affordable Care Act, July
30, 2013, 3-4.
After Kawa Ortho initiated this lawsuit and
after the District Court granted Defendants motion dismiss, the U.S. Department the Treasury yet
again delayed the implementation date the
employer mandate until least 2016 for certain
large employers who employ between and
full-time employees. Fact Sheet, Final Regulations
Implementing Employer Shared Responsibility
Under the Affordable Care Act for 2015, U.S.
Department the Treasury (Feb. 10, 2014) While
the employer responsibility provisions will generally
apply starting 2015, they will not apply until 2016 employers with least but fewer than 100
full-time employees. Fed. Reg. 8544, 8574 (Feb
12, 2014) assist these employers transitioning
into compliance with section 4980H, the transition
relief described below provided for all 2015.
This second delay also applies Kawa Ortho, who all relevant times has maintained between 50-60
employees. App. 12a. And, Kawa Ortho not
alone.
According the 2011 Census figures
compiled the Small Business Administration,
employers with full-time employees consist all U.S. employers and include all
employees, 7.9 million people. Louise Randofsky
and Theo Francis, Health-Law Mandate Put Off
Again, The Wall Street Journal (Feb. 11, 2014).
III.
The Course Proceedings. October 2013, Kawa Ortho brought suit
under the Administrative Procedure Act 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. App. 12a. Kawa
Ortho pled that was injured this agency
action because lost least some the value
the substantial time and money expended and the
significant opportunity costs incurred
anticipation the mandate taking effect.
Id.
Defendants moved dismiss for lack standing,
and January 2014, the district court dismissed
Kawa Ortho Complaint.
subsequently appealed. Id.
Id.
Kawa Ortho December 2014, 2-1 vote, panel
the U.S. Court Appeals for the Eleventh Circuit
affirmed the lower court ruling concluding that
Kawa Ortho lacked Article III standing.
See
generally App. 2a-10a. The dissent concluded that
Kawa Ortho had suffered sufficient injury confer
standing because lost the time value the money spent anticipatory compliance costs.
See
generally id. 11a-20a.
REASONS FOR GRANTING THE PETITION
This petition should granted because the
panel ruling conflicts with precedent both this
Court and other courts appeals and involves
important federal question.
Whether Prematurely Incurring
Compliance Costs Confers
Article III Standing
Important Federal Question. required the plain language the ACA,
the employer mandate provisions were 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 purportedly 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. dollar today worth more than dollar
tomorrow. Atlantic Mut. Ins. Co. Comm 523
U.S. 382, 384 (1998) (quoting Herwitz
Barrett, Accounting for Lawyers 221 (2d ed. 1997)). 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 diminishes 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 unlawful delay the mandate least two years made Kawa Ortho 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. App. 6a.
But Kawa Ortho alleged different injury.
the dissent correctly noted, [L]ooking only the
utility Kawa [Ortho] 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. Id. 16a. 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. Id. 14a.
Because misidentified the injury, the panel
concluded that Kawa Ortho injury was not
traceable Defendants. Id. 8a-9a. 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
mandate not the delay brought
about the need make such
expenditures. But since the injury
the lost time value Kawa [Ortho]
expenditures, not the expenditures
themselves, the only reason for that
loss the delay enforcement.
Id. 16a-17a. Kawa Ortho injury directly
traceable Defendants actions. Had Defendants
not delayed the enforcement the law, Kawa Ortho
would not have lost the time value the money
spent anticipatory compliance costs. addition, Kawa Ortho injury
redressable favorable ruling. the delay set
aside, Kawa Ortho 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.
The lower courts simply got wrong. 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 defendant
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.
Contrary the panel ruling, Kawa Ortho
has standing. was injured Defendants delay
the enforcement the employer mandate
provisions the ACA. Had Defendants not delayed
enforcement, Kawa Ortho spending would not have
been premature. the mandate was ordered take
effect, Kawa Ortho will regain least some, not
all, the time and money spent unnecessarily.
Kawa Ortho standing claim just plain
commonsense and the result how businesses
operate. Defendants action caused spend
money compliance costs two years earlier than
necessary. the employer mandate provisions
were ordered take effect required statute,
Kawa Ortho would not lose all the value the
time and money that spent prematurely. Whether rational and reasonable business has the authority regain some the value the anticipatory
compliance costs spent prematurely because the
actions the federal government important
federal question. For this reason, the Court should
grant this petition.
II.
The Panel Decision Conflicts with
this Court Precedent.
Unlike all the other ACA challenges
submitted the Court over the past few years,
Kawa Ortho does not challenge the text the law.
Nor does challenge the enforcement the
employer mandate provisions applied it.
Instead, Kawa Ortho challenges Defendants
unlawful
decision
disregard
statutory
requirements and unilaterally delay enforcement
the law for least two years. pre-enforcement challenge therefore was not
possible. Had Kawa Ortho not taken the steps
necessary comply with the mandate, would not
have been injured. The same true Defendants
had not unlawfully delayed its enforcement the
mandate.
Although the posture admittedly
different, the result should not be. Kawa Ortho has
suffered injury different than other plaintiffs
before it. National Federation Independent
Businesses Sebelius, U.S. __, 132 Ct. 2566
(2012), the Court resolved whether the individual
mandate was constitutional. Although did not
address standing, reaching decision,
implicitly affirmed the court appeals analysis.
that case, the court appeals held that private
parties challenging the constitutionality the ACA
individual mandate had standing pursue their
claims based their need incur anticipatory
compliance costs. Florida U.S. Dep Health
and Human Servs., 648 F.3d 1235, 1244 (11th Cir.
2011). 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, constituted injury:
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. Dep Health and Human Servs.,
780 Supp. 1256, 1271 (N.D. Fla. 2011)
(emphasis added). The district court agreed that
these anticipatory compliance costs not only
constituted injury, 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
contest the individual plaintiffs standing. Florida,
648 F.3d 1243. The court appeals nonetheless
considered the issue and determined that
beyond dispute that the individual plaintiffs had
standing challenge the individual mandate. Id. 1244. other words, this Court has already held
that the expenditure anticipatory compliance costs injury sufficient confer standing.
This Court has also reached the same
conclusion non-ACA challenges. The question
presented Virginia American Booksellers
Association, Inc. was whether business that had
comply with new statute was sufficiently injured
confer standing. 484 U.S. 383 (1988). The Court
answered the affirmative: [T]he law aimed
directly plaintiffs, who, their interpretation
the statute correct, will have take significant
costly compliance measures risk criminal
prosecution. Id. 392.
Similarly, Havens Realty Corp. Coleman,
this Court was asked decide whether
organization suffered injury sufficient confer
standing when the organization was required
divert resources from its own projects. 455 U.S. 363
(1982). The Court concluded: Such concrete and
demonstrable injury the organization activities
with the consequent drain the organization
resources constitutes far more than simply
setback the organization abstract social
interest. Id. 379.
Like the plaintiffs these cases, Kawa Ortho
spent money comply with law. also diverted
resources that could have spent elsewhere. The
only difference was that Kawa Ortho was injured
because Defendant unlawful action meant that
spent money prematurely. the dissent succinctly
explained, spent money compliance costs two
years earlier than necessary. App. 14a. The
delay caused Kawa Ortho lose least some the
time value the money spent anticipatory
compliance costs. Id. 13. Kawa Ortho injury
not unique. sufficient confer Article III
standing. The Court should grant this petition
reconcile the panel ruling with this Court clear
precedent.
III.
The Panel Decision Conflicts
With Decisions Other Circuits.
Like this Court, other courts appeals have
concluded that incurring anticipatory compliance
costs sufficient injury confer Article III
standing. Liberty University Sebelius, the U.S.
Court Appeals for the Fourth Circuit held that the
plaintiff-employer that case, Liberty University,
had standing challenge the employer mandate
because the anticipatory compliance costs had
incur order comply with the mandate:
Even the coverage Liberty currently
provides ultimately proves sufficient,
may well incur additional costs because the administrative burden
assuring compliance with the employer
mandate, due increase the
cost care. Moreover, Liberty injury imminent even though the employer
mandate will not into effect until
January 2015, Liberty must take
measures ensure compliance
advance that date. Thus, Liberty has
standing challenge the employer
mandate.
733 F.3d (internal citations and quotations
omitted). Association Private Sector Colleges
Universities. Duncan, 681 F.3d 427, 457-58 (D.C.
Cir. 2012), the U.S. Court Appeals for the District Columbia Circuit concluded that the plaintiffs
were sufficiently injured confer standing because
they faced increased compliance costs. addition,
the same court, State Farm Mut. Auto Insurance
Company Dole, 802 F.2d 474, 480 (D.C. Cir. 1986),
held that challenged rule would reasonably
prompt regulated industry, unwilling risk
substantial penalties defying the policy,
undertake costly compliance measures[,] the
regulated industry would sufficiently injured.
Similarly, the Second and Sixth Circuits have held
that plaintiffs incurring compliance costs have
standing.
See N.Y. Civil Liberties Union
Grandeau, 528 F.3d 122, 131 (2d Cir. 2008) and
National Rifle Ass Magaw, 132 F.3d 272, 287
(6th Cir. 1997) (finding standing based
compliance costs).
The question whether incurring compliance
costs may confer standing not new. Other circuits
have answered the affirmative. The panel did
not. For that reason, the panel decision conflicts
with the decisions those other circuits. This
petition therefore should granted.
IV.
The Underlying Issue
Paramount Importance. considering the legality agency action, court must measure the agency action 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.
Board 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)).
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 4980H 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 originally
until 2015 and now until least 2016.
Defendants believed that the language was not
clear and unambiguous, then they would not have
had delay anything. seeking delay these
clear statutory mandates, Defendants failed
respect the unambiguous textual limitations the
ACA employer mandate.
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 until 2016 for some,
but not all, large employers. Defendants action
not transitional relief. deliberate and
unequivocal policy change with very real
consequences for hundreds thousands
businesses and millions employees across the
country. Defendants unilateral postponement the
employer mandate nothing short direct and
deliberate disregard for the clear policy choice made Congress, reflected the unambiguous
language the ACA.
Nor Defendants transitional relief
entitled any Chevron deference. Where, here,
Congress has unambiguously expressed [its] intent
through the plain language statute, deference afforded agency. Chevron, 467 U.S. 84243; see also Dimension Fin., 474 U.S. 368 The
traditional deference courts pay agency
interpretation not applied alter the clearly
expressed intent Congress. note, Aiken County, another case
that raise[d] significant questions about the scope
the Executive authority disregard federal
statutes, the U.S. Court Appeals for the D.C.
Circuit 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
U.S. Court Appeals for the D.C. Circuit 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. Aiken County, 725 F.3d 259. granting the
petition, the court appeals concluded: overstatement say that our
constitutional system separation
powers would significantly altered were allow executive and
independent agencies disregard
federal law the manner asserted
this case the Nuclear Regulatory
Commission. Our decision today rests the constitutional authority
Congress and the respect that the
Executive and the Judiciary properly
owe Congress the circumstances
here.
Id. 267.
The same true here. Defendants have not
indicated that the President has constitutional
objection the employer mandate. Nor have
Defendants suggested that they lack the funds
necessary implement the employer mandate.
Defendants simply seek replace Congress policy
choice about when the employer mandate should
take effect January 2014 with their own policy
choice sometime 2016. The constitutional
authority Congress and the respect that the
Executive and the Judiciary properly owe
Congress demands that Congress policy choice
prevail.
Therefore, whether Kawa Ortho, entity
that lost least some the value the substantial
time and resources prematurely expended and the
time value the money spent anticipatory
compliance costs, has been sufficiently injured
confer Article III standing question utmost
importance. Like many cases before it, this case
presents another circumstance which
responsible and rational business injured the
Executive Branch refusing adhere the rule
law. this case, Defendants caused harm Kawa
Ortho unilaterally and unlawfully delaying the
employer mandate provisions the ACA. Kawa
Ortho was only injured because sought comply
with newly enacted law. Had Defendants not
ignored the law written, Kawa Ortho would not
have been injured. Therefore, the Court should
grant this petition and ultimately reverse the panel
ruling allow for the lower courts provide the
check the Executive Branch which the
Constitution requires.
CONCLUSION
The Court should grant this petition.
Respectfully submitted,
Michael Bekesha
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
mbekesha@judicialwatch.org
(202) 646-5172
Counsel for Petitioner
UNITED STATES COURT APPEALS
For the Eleventh Circuit
____________
No. 14-10296
District Court 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 _________
JUDGMENT hereby ordered, adjudged, and decreed that the
opinion issued this date this appeal entered the judgment this Court.
Entered: December 02, 2014
For the Court: John Ley, Clerk Court
By: Djuanna Clark
ISSUED MANDATE 02/23/2015
[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
year until 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 Treasury 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 Treasury 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 party
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 plaintiff 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 Reg Healthcare Sys., Inc.,
768 F.3d 1135, 1145 (11th Cir. 2014). Applying this
test, conclude Kawa lacks Article III standing
challenge Treasury delay the mandate.1 address each element turn. Injury its complaint Kawa alleges Treasury
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 invasion legally protected interest that sufficiently concrete and particularized rather
than abstract and indefinite. Ga. State Conference
Because conclude Kawa lacks Article III standing, need not address whether Treasury decision postpone
enforcement the employer mandate unreviewable under
701(a)(2) the Administrative Procedure Act (the APA), which
precludes judicial review agency action the agency
action committed agency discretion law. U.S.C.
701(a)(2). 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 Kawa 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 plaintiff
allegations showed only that the property was
worth less him, not that the property was
fact worth less Therefore, set out its
complaint, Kawa 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 Kawa 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 Kawa 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)). Kawa
complaint does not mention the word interest, let
alone allege that Kawa had specific plans invest
its money into interest-bearing asset.2 Therefore,
Kawa 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. short, Kawa complaint alleges only
subjective perception that Treasury delay caused
harm, which insufficient establish Article III
standing.3
Kawa 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 Kawa complaint had alleged lost interest
revenue its injury, that would not confer standing
challenge Treasury delay. First, explained our
discussion causation, was the ACA itself, not Treasury
delay, which caused Kawa spend money legal research
2013 and thereby forego the opportunity earn interest
whatever money spent. Second, explained our Causation
Even Kawa had established concrete and
particularized injury, Kawa 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 Treasury
delay the mandate. Kawa has not demonstrated
its purported injury fairly traceable Treasury
delay. Any injuries associated with the timing
Kawa compliance expenses, including any
opportunity costs, are attributable the ACA itself.
Cf. Arcia Fla Sec State, No. 12-15738, 2014 6235917, (11th Cir. Nov. 17, 2014)
(plaintiffs who incurred costs because Florida
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
discussion redressability, the only remedy that could restore
Kawa lost interest money, which Kawa does not seek.
requirements the ACA. Therefore, Kawa cannot
show causation.4 Redressability
Even Kawa had met both the injury and
causation requirements establish standing,
cannot meet the redressability requirement. This because Kawa does not and cannot5 seek
money damages this case, and money damages
are the only relief that could redress Kawa alleged
injury. Kawa nevertheless requests declaratory
judgment that Treasury 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, 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 Kawa purported
injury. Kawa would not recoup its compliance
expenses any value associated with the time and
The dissent does not cite any authority for its view that
Kawa alleged injury fairly traceable Treasury actions,
but instead relies only its characterization Kawa 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
10a
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 Treasury 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 Nat 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.6
IV. CONCLUSION
For the foregoing reasons, conclude Kawa
lacks Article III standing.
AFFIRMED.
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.
11a
MARTIN, Circuit Judge, dissenting:
Kawa Orthodontics, LLP (Kawa) filed suit
federal court challenging the Treasury Department
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. 111148, 1513(d), 124 Stat. 119, 256. However, July 2013, the Treasury Department announced oneyear 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).
12a October 2013, Kawa filed suit federal
district court challenging Treasury 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 Kawa suit for
lack subject-matter jurisdiction, holding that
Kawa lacked Article III standing. Kawa appeals that
holding here.
13a
II. order show standing, plaintiff must
allege personal injury fairly traceable the
defendant 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 Int
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). 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 government 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. Comm 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)
14a
(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 Sec State, 746 F.3d 1273, 1279
(11th Cir. 2014) Under the diversion-of-resources
theory, organization has standing sue when
defendant illegal acts impair the organization
ability engage its own projects forcing the
organization divert resources response. ).1
This loss the time value Kawa 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
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.
15a
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 loss 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
fine and costs and $1.50 poll tax sufficient
16a
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, (2012) [S]tanding treats
identically plaintiff who alleges only 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 Kawa 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 loss matter how small has 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 defendant allegedly unlawful
conduct, Allen, 468 U.S. 751, 104 Ct. 3324.
The government argues that Kawa 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
17a
Kawa spent the money compliance costs all,
the government would correct that the statutory
mandate not the delay brought about the need
make such expenditures. But since the injury the
lost time value Kawa 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 relief not 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
18a
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 Kawa
complaint does not mention the word interest, let
alone allege that Kawa had specific plans invest
its money into interest-bearing asset [its] lostinterest 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
19a
time value money means that spending money
other priorities 2013 and reaping the benefits
those investments between 2013 and 2015 would
financially benefit Kawa even eventually
expends money 2015 comply with the mandate.
Construing Kawa complaint liberally, understand
Kawa have easily alleged facts sufficient
demonstrate Article III standing its complaint.2 course, view the issue standing
has nothing with the merits Kawa
complaint challenging the employer mandate
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 court 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 agree with the majority suggestion that Kawa has
poorly explained how expending funds 2013 rather than
2015 would injure it. However, party 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)).
20a
merits Kawa claims. therefore respectfully
dissent.
21a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT FLORIDA
CASE NO. 13-80990-CIV-DIMITROULEAS
KAWA ORTHODONTICS, LLP,
Plaintiff,
vs.
JACK LEW, his official capacity
Secretary the U.S. Department the
Treasury,
and
U.S. DEPARTMENT THE
TREASURY,
and
DANIEL WERFEL, his official
capacity the Acting Commissioner the Internal Revenue Service,
and
INTERNAL REVENUE SERVICE,
Defendants.
_____________________________________/
ORDER GRANTING MOTION DISMISS
THIS CAUSE before the Court upon
Defendant Motion Dismiss for Lack Subject
Matter Jurisdiction (the Motion [DE 13], filed
herein December 2013. The Court has
considered the Motion [DE 13], the Response [DE
14], and the Reply [DE 22] and otherwise fully
advised the premises.
22a
BACKGROUND
The parties this action are Plaintiff Kawa
Orthodontics, LLP Plaintiff and Defendants Jack
Lew, Secretary the U.S. Department the
Treasury; the U.S. Department the Treasury;
Daniel Werfel, Acting Commissioner the
Internal Revenue Service; and the Internal Revenue
Service (together, Defendants Pursuant the
Administrative Procedure Act, U.S.C. 500, seq.
(the APA Plaintiff seeks declaratory and
injunctive relief certain aspects the Patient
Protection and Affordable Care Act ACA
Under the ACA, employers who have more
than fifty (50) full-time employees face certain
requirements (the employer mandate First, these
employers face tax penalties they not offer
health insurance coverage that meets statutorily
specified minimum requirements. Second, these
employers must fulfill certain annual reporting
obligations. The ACA specifies that the employer
mandate including these tax penalties and
reporting requirements would take effect the
beginning 2014. However, July 2013,
Defendants announced that the tax penalties and
reporting requirements would not begin until 2015.
Prior July 2013, Plaintiff had expended
substantial time and resources preparation for
complying with the employer mandate scheduled take effect January 2014. Plaintiff would not
have expended its time and resources these issues
23a Plaintiff had known that the employer mandate
would not take effect until January 2015.
Plaintiff alleges that Defendants action
delaying the implementation the employer
mandate exceeded Defendants statutory authority,
was arbitrary and capricious, and was contrary
law. Accordingly, Plaintiff seeks declaratory
judgment that Defendants delay the employer
mandate violates the APA and injunction
prohibiting and setting aside Defendants delay
the employer mandate. Through the instant Motion
[DE 13], Defendants argue that this Court lacks
subject matter jurisdiction because Plaintiff has
failed establish its standing.
II.
DISCUSSION
Standard Review threshold matter, the Court must
determine jurisdiction exists before proceeding
the merits the case. Sinochem Int Co. Malay
Int Shipping Corp, 127 Ct. 1184, 1191 (2007) Without jurisdiction the court cannot proceed all any cause; may not assume jurisdiction for the
purposes deciding the merits the case. (internal
quotations omitted)). The burden for establishing
federal subject matter jurisdiction rests with the
party bringing the claim. Sweet Pea Marine, Ltd.
APJ Marine, Inc., 411 F.3d 1242, 1247 (11th Cir.
2005).
24a
Federal courts cannot exercise jurisdiction
over cases where the parties lack standing. Fla.
Wildlife Fed Inc. Fla. Water Mgmt. Dist., 647
F.3d 1296, 1302 (11th Cir. 2011). establish
standing, plaintiff must show (1) has suffered injury fact that (a) concrete and
particularized and (b) actual imminent, not
conjectural hypothetical; (2) the injury fairly
traceable the challenged action the defendant;
and (3) likely, opposed merely speculative,
that the injury will redressed favorable
decision. Id. (citing Friends the Earth, Inc.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
180 181 (2000)). any point the litigation the
plaintiff ceases meet all three requirements for
constitutional standing, the case longer presents live case controversy, and the federal court must
dismiss the case for lack subject matter
jurisdiction. Id.
Analysis
Plaintiff has not established that has
standing. First, there concrete injury fact.
Second, even there were concrete injury fact,
Plaintiff has not shown that favorable decision
would redress that injury.
Plaintiff alleges that [p]rior July 2013,
[it] expended substantial time and resources,
including money spent legal fees and other costs, preparation for the employer mandate taking
effect January 2014 and that would not
have expended its time and resources and incurred
25a
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. [DE 13]. These
allegations not show that Plaintiff has uselessly
expended resources. Plaintiff has prepared comply
with imminent statutory requirements. The
substance those requirements has not changed.
There basis conclude that the fruits
Plaintiff time and resources are any less valuable
because the one-year delay the commencement the employer mandate.
The Court can imagine circumstances where
plaintiff might have injury based delayed
implementation the employer mandate. The
employer mandate may require some employers
incur additional costs yearly basis. For example,
some employers may have upgrade more
expensive insurance coverage. employer could
have purchased the more expensive insurance
otherwise incurred the additional costs for the 2014
calendar year only discover that those additional
expenditures were longer mandatory for that
calendar year. Those additional and unnecessary
costs for the 2014 calendar year could then arguably
constitute injury fact.1
However, those facts are absent from this
case. Plaintiff does not allege that, based the
employer mandate, made insurance purchase
Even under those facts, however, unclear whether
the injury could redressed through declaratory injunctive
relief.
26a incurred any other expenses limited the 2014
calendar year. Rather, Plaintiff expended time and
resources prepare for its eventual ongoing
compliance with the employer mandate. Plaintiff
must still comply with that mandate and,
doing, may rely the fruits its previously
expended time and resources. There allegation
that Plaintiff efforts are somehow valueless
because they took place the first half 2013
rather than the first half 2014. The
knowledge that Plaintiff has gained will not lapse
the end 2014. The benefits will continue through
the initiation the employer mandate 2015.
Thus, Plaintiff early preparations for the employer
mandate not give rise any concrete injury.
Furthermore, even Plaintiff had concrete
injury fact, the requested relief would not redress
that injury. Neither declaration that Defendants
acted unlawfully nor injunction requiring the
immediate implementation the employer mandate
would compensate Plaintiff for its time and
resources expended 2013. Plaintiff time and
resources will remain expended regardless the
date enforcement the employer mandate.
Finally, Plaintiff does not cite any binding
authority indicating that party who has taken
steps prepare for statutory requirements has
standing sue the government for delaying
enforcement those requirements. Thus, because
Plaintiff has not established that has standing, the
Court does not have subject matter jurisdiction over
this dispute.
27a
III.
CONCLUSION
Accordingly,
ORDERED
ADJUDGED follows:
AND
The Motion [DE 13] hereby
GRANTED;
This action DISMISSED WITHOUT
PREJUDICE for lack subject matter
jurisdiction;2
and
The Clerk directed CLOSE this
case and DENY any pending motions moot.
DONE AND ORDERED Chambers
Fort Lauderdale, Broward County, Florida, this
13th day January, 2014.
______________________________
WILLIAM DIMITROULEAS
United States District Judge dismissal for lack subject matter jurisdiction
should without prejudice because the Court has power
render judgment the merits. See Crotwell HockmanLewis Ltd., 734 F.2d 767, 769 (11th Cir. 1984); Georgia
Advocacy Office, Inc. Camp, 172 F.3d 1294, 1299 (11th Cir.
1999).
28a
UNITED STATES COURT APPEALS
For the Eleventh Circuit
____________
No. 14-10296
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
_________ PETITIONS) FOR REHEARING AND
PETITION(S) FOR REHEARING BANC
BEFORE: MARTIN, JULIE CARNES and BLACK,
Circuit Judges.
PER CURIAM:
The Petition(s) for Rehearing are DENIED and
Judge regular active service the Court having
requested that the Court polled rehearing
bane (Rule 35, Federal Rules Appellate
29a
Procedure), the Petition(s) for Rehearing Banc
are DENIED.
ENTERED FOR THE COURT:
UNITED STATES CIRCUIT JUDGE