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Judicial Watch • Vining v. Exec Board DC Health Benefit Exchange Def’s Reply 0006496

Vining v. Exec Board DC Health Benefit Exchange Def’s Reply 0006496

Vining v. Exec Board DC Health Benefit Exchange Def’s Reply 0006496

Page 1: Vining v. Exec Board DC Health Benefit Exchange Def’s Reply 0006496


Number of Pages:10

Date Created:December 22, 2014

Date Uploaded to the Library:January 07, 2015

Tags:Exec, 0006496, Vining, exchange, Reply, health, Supreme Court

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	Civil Division  
Plaintiff,  Case No. 14-6496  Judge Herbert Dixon, Jr.  Next Event: Initial Conference  
EXECUTIVE BOARD THE  January 16, 2015  

DISTRICT COLUMBIA HEALTH BENEFIT EXCHANGE AUTHORITY, al. Defendants. __________________________________________) 
Defendants Executive Board the District Columbia Health Benefit Exchange Authority (the Executive Board), District Columbia Health Benefit Exchange Authority (the Authority), and Mila Kofman (in her official capacity Executive Director the Authority), and through their attorneys, hereby file this Reply the Opposition filed Plaintiff Kirby Vining December 12, 2014, Defendants Motion Dismiss the Complaint. 
Plaintiffs opposition failed show how has either standing legal basis proceed with claims that unlawful for Members Congress and designated staff purchase insurance through the District Columbias Small Business Health Options Program (SHOP the SHOP Exchange). First, Defendants motion established that matter public record, District taxpayer money was used fund the operation the D.C. Small Business Exchange, Plaintiffs purported taxpayer standing does not exist. Plaintiff does not dispute this fact, and has otherwise failed explain how District taxpayer standing can exist when there has been expenditure District taxpayer dollars. Second, Defendants provided clear legal 
authority that District Columbia law limiting the small business marketplace small 
employers does not apply Members Congress and their staff because preempted the Affordable Care Act and federal regulations requiring them enroll the SHOP Exchange order obtain employer contribution from the federal government.  Plaintiff has all but ignored this conflict preemption claim, attempting instead challenge preemption theories that Defendant did not even make. matter how Plaintiff wants cast his argument, fails matter law and Plaintiff not entitled either injunction the extraordinary remedy mandamus relief.  The Defendants motion should granted and the Plaintiffs case dismissed with prejudice.		PLAINTIFF FAILS SHOW TAXPAYER STANDING BRING THIS CLAIM 
Plaintiff fails overcome the insurmountable problem has with establishing taxpayer standing bring this lawsuit.  The law clear that municipal taxpayer does not have standing challenge municipal program municipal taxpayer funds are not used support the program question.  See, e.g., Ehm San Antonio City Council, 269 Fed. Appx. 375, 377 (5th Cir. 2008); ACLU-NJ Township Wall, 246 F.3d 258, 262-63 (3d Cir. 2001); Doe Duncanville Indep. School Dist., F.3d 402, 408 (5th Cir. 1995). Plaintiff cannot obtain taxpayer standing simply arguing that [d]efendants are spending monies from D.C.s General Fund.  (Opp. 2.) Instead, must have actually been injured expenditure District taxpayer money the Health Benefit Exchange Authoritys SHOP Exchange that illegal.  See Grayson Corp., A.3d 219, 224 (D.C. 2011). See Grayson Corp., A.3d 219, 224 (D.C. 2011).1 
Plaintiff wrong that D.C. Courts not follow the prudential standing requirements Article III. (See Opp. 5.) Grayson, the Districts highest court sitting banc concluded There factual dispute about the funding the SHOP Exchange 
Plaintiff tries avoid this problem asserting that Defendants motion dismiss raises quintessential factual dispute. (See Opp. 2.) But the only factual question the standing issue whether D.C. taxpayer money was used fund the D.C. Small Business Exchange.  Defendant directed the Court public documents District Columbia Government websites that clearly show that the Exchange has never been funded with D.C. taxpayer dollars.2 (Def. Motion 7-8.) These documents confirm that the Council the District Columbia, exercising its function approve city budget, allocated federal grant and other non-tax dollars the Health Benefit Exchange Authority for the operation the D.C. Small Business Exchange. Plaintiff does not dispute the validity authenticity the records Defendant cited, nor has Plaintiff provided any evidence the contrary. Instead, Plaintiff attached pages from the exact same documents and claims entitled presumption standing because the funds were appropriated from general account (Opp. 2), even though the documents show that funds that went into the general account support the SHOP Exchange were not taxpayer 
that even though Congress created the District Columbia court system under Article the Constitution, rather than Article III, this court has followed consistently the constitutional standing requirement embodied Article IIIappellants must allege some threatened actual injury resulting from ... putatively illegal action order for this court assume jurisdiction), A.3d 224. 
Plaintiff argues that the Court cannot consider this evidence for purposes motion dismiss.  But well established that the Court can take judicial notice such facts within the public record without going outside the four corners the complaint. See Washkoviak Student Loan Marketing Association, 900 A.2d 168, n.15 (D.C. 2006) ([T]he trial court entitled take judicial notice matters public record.) (quoting Estate Barfield, 736 A.2d 991, 996 n.7 (D.C. 1999). See also Drake McNair, 993 A.2d 607, 661 (D.C. 2010) (trial courts reliance information public land records did not convert motion dismiss motion for summary judgment); Bostic D.C. 906 A.2d 327, 331-32 (D.C. 2006) (court took judicial notice that the United States employed the U.S. Capitol Police and not the District Columbia).  All the documents cited both Plaintiff and Defendants are matter public record. 
dollars. (Def. Motion 7-8). Without the use any D.C. taxpayer money fund the program 
that the Plaintiff attacks, the Plaintiff does not have standing taxpayer.		The law clear that actual tax expenditures are required for taxpayer standing 
Plaintiff criticizes the Defendants for rely[ing] exclusively federal taxpayer standing cases.  (Opp. 5.)   Despite the fact that this false, Plaintiff does not explain why those cases, which all stand for the proposition that municipal taxpayer has standing when municipal taxpayer money used support the program under attack, not apply his case. 
Indeed, odd that Plaintiff would criticize Defendants for relying federal cases when cites the federal decision Commack Waihee, 932 F.2d 765, 770 (9th Cir. 1991), and then misreads the case. (See Opp. 6.) The question Commack was whether plaintiff, taxpayer Honolulu, had municipal standing challenge federal court state law making Good Friday holiday. Id. 769. The Ninth Circuit said that cases have made clear that municipal taxpayer standing only available when there expenditure municipal funds challenged. Id. 770 (emphasis added). The court then cited Freedom From Religion Found., Inc. Zielke, 845 F.2d 1463, 146970 (7th Cir.1988), which held that municipal taxpayers have standing challenge the improper use tax revenues but standing where there has been expenditure city funds. The Commack court also cited Donnelly Lynch, 691 F.2d 1029 (1st Cir. 1982), which held that municipal taxpayers ... have standing sue challenge allegedly unconstitutional use their tax dollars. Id. 1031 (emphasis added), rev'd other grounds, 465 U.S. 668 (1984). The Commack court concluded that the plaintiffs had standing only because they alleged the use funds generated the taxing governmental entities, meaning the State Hawaii and the municipality Honolulu. Id. 771. Thus, Commack actually 
defeats Plaintiffs argument here because District money was used fund the D.C. Small 
Business Exchange. 
Plaintiff  also cites the federal case District Columbia Common Cause District Columbia, 858 F.2d (D.C. Cir. 1988), which held that federal taxpayer standing was proper because the expenditures question were federal funds appropriated Congress. Plaintiff misreads this case, too. The relevant inquiry not whether the City Council has appropriated funds; the question whether the City Council appropriated District Columbia taxpayer money, opposed appropriating federal money for District program. other words, for purposes standing, where D.C. money involved, District resident cannot challenge the appropriation federal grant money municipal taxpayer, even though the act appropriating the federal funds the City Council. And that the situation here. Indeed, Plaintiff fails cite single casestate federalthat stands for the proposition that District Columbia resident has standing bring taxpayer case when the funds used operate the program under attack are not District Columbia taxpayer funds. There are such cases that support Plaintiffs argument this point because that not the law.3 
Since Plaintiff cannot show how his District Columbia taxpayer money goes fund the Exchange and has alleged other basis for standing, the Court lacks subject matter jurisdiction and his case must dismissed.4 Standing requires individualized proof both Plaintiff engages budget-talk semantics argue that District Columbia municipal funds are used operate the D.C. Small Business Exchange.  The substantial evidence (Opposition that Plaintiff submits with his opposition the same information that Defendants filed with their motion.  There remains material dispute that about the funding the D.C. Small Business Exchange. Nor does Plaintiffs argument that may suffer future harm carry the day for him. (See Opp. 10.) allegation future and recurring harm only has merit there evidence some present harm. See District Columbia Common Cause District Columbia, 858 F.2d 8-9 
the fact and extent injury. Laufer Westminster Brokers, Ltd., 532 A.2d 130, 135 (D.C. 
1987) (quoting Consumer Federation America Upjohn Co., 346 A.2d 725, 728 (D.C. 1975). Such generalized grievances the one made the Plaintiff this lawsuit do not warrant the exercise jurisdiction. Aeon Financial, LLC District Columbia, A.3d 522, 530 
(D.C. 2014) (quoting Padou, A.3d 212). sum, its face, Plaintiffs complaint fails show that has standing bring this lawsuit. The complaint should dismissed for this reason alone.  
Plaintiff argues that neither the ACA nor regulations can preempt District Columbia law limiting employer size its SHOP exchange authorize the sale health insurance Members Congress and designated staff.  Plaintiff wrong. 
Congress imposed size limitations state SHOP exchanges when enacted the ACA, but also required the federal government provide health insurance Congress through Exchange established under the ACA. U.S.C.  1312(d)(3)(D)(i).  Consistent with this mandate, the Office Personnel Management, which authorized Congress contract with insurance carriers behalf federal employees under the Federal Employees Health Benefit Act, U.S.C.  8902, promulgated regulations that required Congress and designated staff enroll health plan offered the District Columbia SHOP order receive employer contribution from the federal government.  See C.F.R.  890.102(c)(9); see also Preamble 
(D.C. Cir. 1988) (standing only there showing a real and immediate threat repeated injury) (emphasis added) (quoting OShea Littleton, 414 US. 488, 496 (1974); Haase Sessions, 835 F.2d 902, 911 (D.C. Cir. 1987) (plaintiff must show likelihood future harm). Here, Plaintiff not experiencing any present harm because District taxpayer funds are being used, and thus his claim future harm far too speculative. 
C.F.R.  890, Fed. Reg. 60653, 60654 (October 2013).5 Indeed, the District Columbia created its Health Benefit Exchange under the Affordable Care Act and established size limitations for its SHOP Exchange within the parameters established the Affordable Care Act.  But because those size limitations conflict with OPMs determination contract with plans the Districts SHOP Exchange and carry out the ACAs mandate for the health plans Congress and staff, they simply not apply the enrollment Congress and staff the SHOP. When compliance with both federal and state regulations physical impossibility when state law stands obstacle the accomplishment and execution the full purposes Congress, that state law preemptedas the size limitations imposed the D.C. statute applied Congress and staff are, here. See Angulo Gochnauer, 772 A.2d 830, 836 (D.C. 2001).  
Plaintiff does not dispute that this clear conflict exists but instead argues that OPM [is] unlawfully attempting rewrite federal law. (Opp. 16.) The Supreme Court has clearly stated many times that state law can preempted federal regulations well federal statutes. See, e.g., Geier American Honda Motor Company, Inc., 529 U.S. 861 (2000); Capital Cities Cable, Inc. Crisp, 467 U.S. 699 (1991) (federal regulations have less preemptive effect than statutes); Fidelity Federal Savings Loan Association Cuesta, 458 U.S. 141 (1982).  The District Columbia Court Appeals also recognizes that there distinction between federal statute and federal regulation, both can preempt state law. See Angulo Gochnauer, 772 A.2d 830, 836 (D.C. 2001). clear that the Districts conflicting limitation not more than employees 31-3171.01(16)(A) does not apply Members Congress and its staff. Plaintiff has valid argument the preemption issue. noted Plaintiffs Motion, even the Secretary Health and Human Services through the Center for Medicare and Medicaid Services determined that the regulations rendered the size limitations inapplicable members Congress and their staff. See 

III. PLAINTIFF NOT ENTITLED WRIT MANDAMUS his Opposition, Plaintiff complains that the District did not address his request for writ mandamus.  (Opp. 17.)  Plaintiff apparently fails recognize that his lawsuit dismissed because does not have proper taxpayer standing, because the sale health insurance the Districts Exchange Member Congress and their staff lawful, his claim for writ mandamus also fails. any event, Defendant Kofman not failing carry out ministerial function. the contrary, she has lawfully facilitated the enrollment Congress and staff the District Columbia SHOP Exchange accordance with both federal and District Columbia law. fact, she refused so, she would blocking the accomplishment and execution the full purposes Congress expressed the Affordable Care Act and OPM regulations. 
There high burden proof this jurisdiction for plaintiff entitled mandamus relief. District Columbia Fitzgerald, 953 A.2d 288, 298-99 (D.C. 2008), the court stated: It well established that the writ mandamus extraordinary remedy, available only those few cases where trial court has refused exercise exceeded its jurisdiction. addition, the court stated:  [T]he party seeking the writ must show that [its] right clear and indisputable and that [it] has other adequate means obtain relief. Id. court should issue the writ only for clear abuse discretion. Id. This not such case.  Because Director Kofman administering the Health Benefit Exchange behalf the District accordance with the requirements the Affordable Care Act, Plaintiff cannot demonstrate even the minimal predicate for the extraordinary remedy mandamus. grant writ mandamus under these facts would permit plaintiffs seek mandamus every case where nonextraordinary issues should presented the courts for judicial resolution. Therefore, 
Plaintiffs request for writ mandamus also should dismissed. 

Plaintiff requests Oral Hearing this matter.  (Opp. 17.) Oral Hearing not 
matter right; committed the sound discretion the Court.  SCR-Civil 12-I (f).  The 
issues raised this motion are solely matters law that are clear and straightforward. Oral 
Hearing required. 

For the above-stated reasons, and for the reasons set forth the Defendants Motion 
Dismiss, the Court should dismiss the Plaintiffs complaint with prejudice. 
Respectfully submitted, 
EUGENE ADAMS Interim Attorney General for the District Columbia 
ELLEN EFROS Deputy Attorney General Public Interest Division 
/s/ Grace Graham GRACE GRAHAM, [Bar No. 472878] Chief, Equity Section 441 Fourth Street, NW, Sixth Floor South Washington, 20001 Telephone: (202) 442-9784 Facsimile: (202) 741-8892 Email: 
/s/ William Causey WILLIAM CAUSEY [Bar No. 260661] Assistant Attorney General Public Interest Division, Equity Section 441 Fourth Street, NW, Sixth Floor South Washington, D.C. 20001 Telephone: (202) 724-6610 Facsimile: (202) 741-0599 Email: 
Attorneys for the District Columbia 
Dated: December 22, 2014 

CERTIFICATE SERVICE hereby certify that this 22nd day December 2014, have caused served, 
electronic filing, true copy this document on: 
Michael Bekesha, Esq.
	Paul Orfanedes
	Judicial Watch, Inc.
	425 Third Street, S.W.
	Suite 800
	Washington, 20024
Attorneys for Plaintiff 
/s/William Causey William Causey Bar No. 260661