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Judicial Watch • Vining v. Exec Board DC Health Benefit Exchange Motion to Dismiss 0006496

Vining v. Exec Board DC Health Benefit Exchange Motion to Dismiss 0006496

Vining v. Exec Board DC Health Benefit Exchange Motion to Dismiss 0006496

Page 1: Vining v. Exec Board DC Health Benefit Exchange Motion to Dismiss 0006496

Category:Lawsuit

Number of Pages:20

Date Created:November 7, 2014

Date Uploaded to the Library:January 07, 2015

Tags:Exec, 0006496, Dismiss, Vining, exchange, health, motion, Supreme Court


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SUPERIOR COURT THE DISTRICT COLUMBIA 
Civil Division 
__________________________________________ 
KIRBY VINING, 
  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 MOTION DISMISS THE COMPLAINT 
 
 Defendants Executive Board the District Columbia Health Benefit Exchange Authority (the Executive Board), District Columbia Health Benefit Exchange Authority (the Authority HBX), and Mila Kofman (in her official capacity Executive Director the Authority), and through their attorneys, hereby move for judgment the pleadings, pursuant SCR-Civil 12(b)(1) and (b)(6), the grounds that the plaintiff lacks standing bring this action, and alternatively because the complaint fails state claim upon which relief can granted. Memorandum Points and Authorities Support this Motion and Proposed Order filed herewith. 
 Pursuant SCR-Civil 12-I, defendants have informed plaintiff this motion and sought his consent.  Plaintiff does not consent the motion. 
      Respectfully submitted,  
       
      IRVIN NATHAN  
      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: grace.graham@dc.gov 
 
        /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: William.causey@dc.gov 
      Attorneys for the District Columbia 
Dated:  November 2014 
CERTIFICATE SERVICE hereby certify that this 7th day November, 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
SUPERIOR COURT THE DISTRICT COLUMBIA 
Civil Division 
__________________________________________ 
KIRBY VINING, 
  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. 
__________________________________________) 
 
MEMORANDUM POINTS AND AUTHORITIES SUPPORT  
DEFENDANTS MOTION DISMISS 
 
 Defendants Executive Board the District Columbia Health Benefit Exchange Authority (the Executive Board), District Columbia Health Benefit Exchange Authority (the Authority HBX), and Mila Kofman (in her official capacity Executive Director the Authority), and through their attorneys, pursuant Superior Court Rules Civil Procedure 12(b)(1) and 12(b)(6), hereby file this Memorandum Points and Authorities Support their Motion Dismiss the complaint.    
INTRODUCTION October 15, 2014, Plaintiff Kirby Vining filed complaint alleging that unlawful for Members Congress and their designated Congressional staff purchase health insurance through the District Columbias Small Business Health Options Program (SHOP the SHOP Exchange).  Kirby, alleged taxpayer the District Columbia (see Compl.  1), claims that illegal for the Exchange permit the purchase health insurance Members Congress and their staff through the SHOP Exchange because District Columbia law limits 
the sale insurance through its SHOP Exchange small businesses with fewer employees, and because Congress employs more than people.  See Compl.  17, 18, 19, 21.   Plaintiff seeks declaratory and injunctive relief, and writ mandamus restraining the Authority from permitting Congress and designated Congressional staff enroll the SHOP Exchange.  See Compl.  23-32. Plaintiff claims can bring this suit because alleges that the SHOP Exchange funded with District Columbia taxpayer dollars.  See Compl.  10. set forth below, the Court should dismiss Plaintiffs lawsuit its entirety.  First, lacks standing bring this claim because District Columbia taxpayer dollars were not appropriated fund the SHOP Exchange.  Accordingly, Plaintiff not injured District Columbia taxpayer.  Second, federal law expressly and specifically authorizes use the D.C.s SHOP Exchange Members Congress and designated Congressional staff through the Patient Protection and Affordable Care Act (ACA), implementing regulations, and guidance.  Therefore, District Columbia law, applied Congressional enrollment, preempted the ACA and pertinent regulations.  For these reasons, Plaintiffs lawsuit should dismissed. 
STATEMENT FACTS March 23, 2010, Congress enacted the ACA (Pub. No. 111-148, 124 Stat. 119), amended the Health Care and Education Reconciliation Act 2010 (Pub. No. 111-148, 124 Stat. 109 (collectively the ACA), which made significant changes the scope and delivery health care this country.  Section 1311(b)(1)(B) the ACA provides that each State and the District Columbia could establish and operate Health Benefit Exchange (or marketplace) facilitate the sale Qualified Health Plans individuals and small 
businesses.1  Alternatively, the citizens State would purchase affordable health insurance through Federal Exchange established the State. U.S.C.  18041(c).  The ACA provides that federal grant funds would made available those States (and the District Columbia) that established state-operated Exchanges for initial start-up period and implementation. U.S.C.  18031(a).  The ACA defined Qualified Health Plan one that met the standards the Health Insurance Market Reforms under Part Title XXVII the Public Health Service Act (PHSA) for the provision essential health benefits, such for hospitalization and maternity care, ambulatory patient services, mental health and substance use disorder services, and certain stand-alone dental plans.  See U.S.C.  18022(b). The District Establishes the Small Business Health Options Program (SHOP) 

 Under  1311(b)(1)(B) the ACA, the small employer portion any states health Exchange called the Small Business Health Options Program (SHOP), and exists for the purpose assisting qualified employers providing health insurance options for their employees. U.S.C.  18031 (b)(1)(B).  See also U.S.C.  18031 (d)(1)(2)(A).  The ACA regulations define small employer an employer who employed average least but not more than 100 employees during the preceding calendar year, but allowed states elect define small employers substituting employees for 100 employees.  See C.F.R.  155.20. qualified employer defined any small employer that elects make its full time employees eligible for one more qualified health plans offered through SHOP.  Id. 2012, the Council the District Columbia (the Council) enacted the Health Benefit Exchange Authority Establishment Act, D.C. Law 19-94, D.C. Official Code  31-3171.01 seq. (2012 Repl. and 2013 Supp.) (the Establishment Act). The Establishment Act, which became effective March 2012, created the District Columbia Health Benefit Exchange Authority response the ACA provision that permits the District establish and 
operate state-based Exchange the District Columbia.  D.C. Official Code  31-3171.04.2  Pursuant ACA requirements, the Council established SHOP component its Exchange serve qualified small employers.  The Council elected the option provided the ACA define small employer employer who employed an average not more than employees during the preceding calendar year.  D.C. Official Code,  31-3171.01(16)(A).  Under the ACA and the Establishment Act, only small employers are qualified employers eligible enroll the Districts SHOP Exchange. See D.C. Code  31-3171.04(a)(2); 31-3171.01(11).  See also C.F.R.  155.20. addition the District Columbia, States have elected operate Exchange.  See http://www.cms.gov/CCIIO/Programs-and-Initiatives/Health-Insurance-Marketplaces/index.html. March 27, 2012, the Department Health and Human Services issued final rules establishing October 2013, the date for open enrollment exchange individual and SHOP markets.  See C.F.R.  155.410.  Exchanges were required have their technical infrastructures designed and place well advance that date.  Accordingly, when the District built its website, restricted the SHOP Exchange enrollment qualified small employers with less employees pursuant the definition described the Establishment Act above.  See D.C. Official Code,  31-3171.01 (16)(A). Congress Provides That Its Members and Staff Can Obtain Insurance Through the District SHOP Exchange  

The ACA includes specific provision for the sale health insurance Members Congress and designated Congressional staff.  Section 1312(d)(3)(D) the Act provides:  MEMBERS CONGRESS THE EXCHANGE.  
 (i)  REQUIREMENT.  Notwithstanding any other provision law, after  the effective date this subtitle, the only health plans that the Federal  Government may make available Members Congress and  congressional staffs with respect their service Member Congress congressional staff shall health plans that are  
  (I) created under this Act (or amendment made this Act); 
  (II) offered through Exchange established under this Act (or    amendment made this Act). 
   (ii) DEFINITIONS. this section: 
    (I) MEMBER CONGRESS. The term Member       Congress means any member the House Representatives      the Senate. 
(II) CONGRESSIONAL STAFF.The term congressional staff means all full-time and part- time employees employed the official office Member Congress, whether Washington, D.C. outside Washington, D.C. October 2013, one day after the Districts SHOP Exchange opened for business, the Office Personnel Management (OPM) promulgated regulations implement  1312(d)(3)(D) the ACA.  See C.F.R.  890.102(c)(9).  That section provides: 
The following employees are not eligible purchase health benefit plan for which OPM contracts which OPM approves under this paragraph (c), but may purchase health benefit plans, defined U.S.C. 8901(6), that are offered appropriate SHOP determined the Director, pursuant section 1312(d)(3)(D) the Patient Protection and Affordable Care Act, Public Law 111-148, amended the Health Care and Education Reconciliation Act, Public Law 111-152 (under Affordable Care Act the Act): 
 (i) Member Congress. 
 (ii) congressional staff member, the individual determined employing office the Member Congress meet the definition congressional staff member  890.101 January 2014, any subsequent calendar year.  
 
According OPM, the regulation required Members Congress and designated congressional staff enroll appropriate SHOP determined the Director order receive Government contribution.  See Preamble C.F.R.  890, Fed. Reg. 60653, 60654 (October 2013).  Thus, consistent with the Act and the regulation, OPM determined the District Columbia Exchange was the appropriate SHOP for members Congress and congressional staff.  Id.     
 Additionally, the Centers for Medicare and Medicaid Services (CMS) issued guidance interpreting the OPM regulation that stated that Members Congress and congressional staff: 
[A]re eligible participate SHOP regardless the size and offering requirements set forth the definition qualified employer the Exchange final rule, provided that the office offers coverage those full-time employees who are determined statute purchase health insurance from Exchange for the purpose the government contribution.3  See https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/members-of-congress-faq-9-30-2013.pdf (September 30, 2013) (emphasis added, footnote omitted). Congressional open enrollment began November 11, 2013.  See http://www.opm.gov/retirement-services/publications-forms/benefits-administration-letters/2013/13-401.pdf and http://www.opm.gov/faqs/QA.aspx?fid=fd635746-de0a-4dd7-997d-b5706a0fd8d2pid=532e0a01-e194-4483-b18e-4f13ffaa6832]. 
 
 
Thus, based this express authorizationand notwithstanding the fact that the D.C. SHOP Exchange website architecture was built for small employers with less employees and that Congress employees more than 50Members Congress and their staff used the D.C. SHOP Exchange enroll health insurance coverage.4 The Districts SHOP Exchange Has Never Been Funded Through Local Taxpayer Dollars 

 Since its inception, the D.C. SHOP Exchange has been funded exclusively federal grants awarded the District establish its Exchange, and, more recently, assessment imposed health carriers doing business the District.  These dollars are passed through the Authority the Council each annual appropriating budget and local District Columbia taxpayer dollars are used fund and operate the D.C. SHOP Exchange.   
The ACA makes grants funds available state-based exchanges assist them planning, establishing, and implementing their marketplaces.  See U.S.C.  18031(a).  The District has been the recipient multiple federal exchange establishment grants awarded the Department Health and Human Services build and implement its exchange marketplace.  
See United States Center for Medicare and Medicaid Services District Columbia Health Insurance Marketplace Grants Award List.5  See http://www.cms.gov/CCIIO/Resources/Marketplace-Grants/dc.html).  The July 24, 2014 award available http://hbx.dc.gov/sites/default/files/dc/sites/hbx/page_content/attachments/NOGA07-24-2014.pdf). See Mayors FY13 Proposed Budget and Financial Plan E-189, E-195 (available http://cfo.dc.gov/node/290762). The FY2013 budget for the Health Benefit Exchange was housed with the District Columbia Department Health Care Finance its Health Care Reform and Innovation Program (HCRIA), the Health Benefit Exchange Authority (HBX) had not been established separate entity eligible receive funding the time appropriations.  Id. See Report and Recommendations the Committee Health the Fiscal Year 2013 Budget for Agencies Under Its Purview; the Fiscal Year 2013 Budget Request Act 2012, and the  Fiscal Year 2013 Budget Support Act 2012  (available http://dccouncil.us/budget/2013). See Mayors FY2014 Proposed Budget and Financial Plan, H-86 (available http://cfo.dc.gov/node/46798).   
 
According the Mayors FY2013 proposed budget and financial plan, the Mayor requested $46,893,000 for the Health Care Reform and Innovation Program (HCRIA) in anticipation new grant award for the proposed state-operated Health Insurance Exchange System (DC Health Insurance Exchange Grant).6  The Committee Health adopted the Mayors requests, and the Council subsequently approved the Committees recommendation.7 FY2014, total $66,140,499 was approved for the Health Benefit Exchanges (HBX) FY2014 gross budget.  According the Mayors FY2014 Proposed Budget and Financial Plan, HBXs budget was newly established for 2014 and comprised entirely Special Purpose Revenue Funds.8   District Columbia Special Purpose Revenues are non-tax revenues generated agency that collects the revenues cover the cost performing 
the function.9  The Committee Health adopted the Mayors request and the Council subsequently approved the Committees recommendation appropriate such Special Purpose Revenue funds.10 See FY2015 Proposed Budget and Financial Plan, 2-3 (available (http://cfo.dc.gov/node/809182). See Report and Recommendations the Committee Health the Fiscal Year 2014 Budget for Agencies Under Its Purview; the Fiscal Year 2014 Budget Request Act 2013, and the  Fiscal Year 2014 Budget Support Act 2013 (available http://dccouncil.us/budget/2014); see also Table FY2014 Approved Budget Gross Funds G-6. (available http://cfo.dc.gov/sites/default/files/dc/sites/ocfo/publication/attachments/ FY14_Approved_Budget.pdf). See Mayors FY2015 Proposed Budget and Financial Plan E-202.  (available http://cfo.dc.gov/node/878112). See FY2015 Proposed Budget and Financial Plan 2-2 (available http://cfo.dc.gov/node/809182).     
 
Finally, for FY2015, total $28,751,244 was approved for HBXs FY2015 gross budget.  According the Mayors FY2015 proposed budget and financial plan, the HBX budget comprised entirely Dedicated Taxes and designated Enterprise and Other Funds.11    Dedicated taxes the District are tax revenues that are dedicated law particular agency for particular purpose.12 this case, the dedicated tax assessment health carriers that the Council authorized through legislation sustain the Exchange, not local      
taxpayer dollars.13  The Committee Health adopted the Mayors request and the Council  subsequently approved the Committees recommendation approve such Dedicated Taxes.14 Both the Affordable Care Act and District Columbia law require the Exchange financially self-sustaining after grant funds expire.  See ACA  1311(a)(4)(B); C.F.R. 155.160(b); D.C. Official Code  31-3171.16(b)(1) (requiring the Health Benefit Exchange Authority prepare plan that identifies how the Authority will financially self-sustaining January 2015).  The Council amended Official Code  31-3171.03 authorize the Authority annually assess all health carriers doing business the District.  See the Health Benefit Exchange Authority Financial Sustainability Emergency Amendment Act 2014, effective May 22, 2014 (D.C. Act A20-0329) (the Emergency Assessment Act); the Health Benefit Exchange Authority Financial Sustainability Temporary Amendment Act 2014, D.C. Law No. L20-1033; http://cfo.dc.gov/page/annual-operating-budget-and-capital-plan-2013pdfs. See Report and Recommendations the Committee Health the Fiscal Year 2015 Budget for Agencies Under Its Purview; the Fiscal Year 2015 Budget Request Act 2014, and the  Fiscal Year 2015 Budget Support Act 2014 (available http://dccouncil.us/budget/2015).     
STANDARD REVIEW 12(b)(1) 
SCR-Civil 12(b)(1) provides for the dismissal claims the Court lacks subject matter jurisdiction. order for court exercise jurisdiction over claim, the constitutional requirement case controversy and the prudential prerequisites standing must present.  Bd. Dirs. the Washington City Orphan Asylum Bd. Trs. the Washington City Orphan Asylum, 798 A.2d 1068, 1073-74 (D.C. 2002) (internal citations omitted); see also Padou District Columbia, A.3d 383, 389 n.6 (D.C. 2013) (noting that Superior Court generally adhere[s] the case and controversy requirement Article III well prudential principles standing.); Grayson Corp., A.3d 219, 224 (D.C. 2011) (We conclude 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 III.). the Supreme Court held Lujan Defenders Wildlife, 504 U.S. 555, 560-61 (1992), plaintiff must meet three basic requirements establish standing.   
First, plaintiff must have suffered injury factan invasion legally protected interest which (a) concrete and particularized, and (b) actual imminent, not conjectural hypothetical.  Second, there must causal connection between the injury and the conduct complained ofthe injury has fairly traceable the challenged action the defendant, and not the result the independent action some third party not before the court.  Third, must likely, opposed merely speculative, that the injury will redressed favorable decision. 
 
(emphasis added).  See also Friends Tilden Park, Inc. District Columbia, 806 A.2d 1201, 1206 (D.C. 2002) (citing, inter alia, Speyer Barry, 588 A.2d 1147, 1160 (D.C. 1991)).  These basic requirementsinjury-in-fact, causation, and redressabilitymust proven separately each request for relief.  Friends the Earth, Inc. Laidlaw Envtl. Servs. Inc., 528 U.S. 167, 185 (U.S. 2000) (a plaintiff must demonstrate standing separately for each form relief sought); see also Lewis Casey, 518 U.S. 343, 358 (U.S. 1996) (standing not dispensed gross). Further, [a] court may look beyond the pleadings resolve disputed jurisdictional facts when considering motion dismiss[.]  Tootle Secretary Navy, 446 F.3d 167, 174 (D.C. Cir. 2006).  
Because Plaintiff here cannot establish any injury virtue his status municipal taxpayer, cannot establish standing proceed.  Accordingly, the court lacks jurisdiction over the case and must dismissed pursuant SCR-Civil 12(b)(1).  Grayson, A.3d 224. Rule 12(b)(6) 

SCR-Civil 12(b)(6) provides for the dismissal complaint that fails state claim upon which relief can granted.  Rule 8(a) the Superior Court Rules Civil Procedure provides that a short and plain statement the claim showing that the pleader entitled relief. SCR-Civil 8(a).  This pleading standard does not require detailed factual allegations, 
but demands more than unadorned, the-defendant-unlawfully-harmed-me accusation. Potomac Development Corp., A.3d 544 (quoting Ashcroft Iqbal, 556 U.S. 662, 678 (2009)). survive motion dismiss, then, complaint must contain sufficient factual matter, accepted true, state claim relief that plausible its face.  Id.  A claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant liable for the misconduct alleged. Id.  Where complaint pleads facts that are merely consistent with defendant's liability, stops short the line between possibility and plausibility entitlement relief.  Id.  Moreover, although the factual allegations the complaint must taken true, the Court not bound accept true legal conclusion couched factual allegation. Papasain Allain, 478 U.S. 265, 286 (1986), cited Twombly, 550 U.S. 555; see also Iqbal, 556 U.S 674 (providing that the tenet that court must accept true all the allegations contained complaint inapplicable legal conclusions). this case, federal law preempts the application the local law establishing 50-employee limit for participation SHOP applies Members Congress and their staff.  Accordingly, Plaintiff has failed state claim for relief. 
ARGUMENT PLAINTIFF LACKS STANDING BRING THIS CLAIM 
 While municipal taxpayer may challenge the unlawful expenditure municipal funds, Bradfield Roberts, 175 U.S. 291 (1899), and enjoin the illegal use the moneys municipal corporation, Frothingham Mellon, 262 U.S. 447, 486-87 (1923), municipal taxpayer must have some injury fact order prevail.  Padou District Columbia 
Alcoholic Beverage Control Board, A.3d 208, 211 (D.C. 2013).  Standing requires individualized proof both 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).  Moreover, when Plaintiff requests injunction, the ultimate standing inquiry whether there real and immediate threat repeated injury.  District Columbia Common Cause District Columbia, 858 F.2d 8-9 (D.C. Cir. 1988) (quoting OShea Littleton, 414 U.S. 488, 496 (1974)). 
Plaintiff cannot meet this requirement.  Funds used establish and operate the D.C. SHOP Exchange FY13 and came exclusively from federal grants, while FY15 operations will funded through health carrier assessment. discussed above, Fiscal Years 2013 through 2014, the Council appropriated federal grant fundsnot local taxpayer dollarsand the Authority relied solely these grants build the D.C. SHOP Exchange.  For Fiscal Year 2015, the Council provided for assessment health carriers sustain the operations the Exchange marketplace.   Thus, District Columbia taxpayer money has never been used fund operate the D.C. SHOP Exchange.       
Courts have repeatedly held that municipal taxpayer cannot establish injury for purposes standing where municipal tax money spent connection with the tax expenditure challenged the complaint.  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); Gonzales North Township Lake County, Indiana, F.3d 1412, 1415-16 (7th Cir. 1993); Friedman Sheldon Community School Dist., 995 F.2d 802, 803 (8th Cir. 1993); Cammack Waihee, 932 
F.2d 765, 770 (9th Cir. 1991); Freedom From Religion Foundation, Inc. Zielke, 845 F.2d 1463, 1266 (7th Cir. 1988); ACLU City St. Charles, 794 F.2d 265, 267 (7th Cir. 1986).   
 Applying the law this case, Plaintiff lacks standing bring this lawsuit because there has been expenditure local District Columbia taxpayer money for the operation the D.C. SHOP Exchange. there were taxpayer funds appropriated, there can misuse, past injury, and immediate threat repeated injury.  Because the Court lacks jurisdiction over Plaintiffs claim, this lawsuit must dismissed. 
II. THE ACA AND OPM REGULATIONS PREEMPT ANY CONTRARY D.C. LAW PERTAINING SIZE APPLIED THE ENROLLMENT MEMBERS CONGRESS AND THEIR DESIGNATED STAFF THE D.C. SHOP EXCHANGE clear that the ACA language  1312 (d)(3)(D), interpreted OPM C.F.R.  890.102(c)(9), conflicts with, and therefore preempts, any provision District law pertaining size applied Members Congress and their designated staff enroll the D.C. SHOP Exchange. fundamental that acts Congress are the supreme law the land, and thus state laws that conflict with federal law are without effect.  Maryland Louisiana, 451 U.S. 725, 746 (1981).  Moreover, Congressional action preempts state law when state law stands obstacle the accomplishment and execution the full purpose and objectives Congress.  Capital Cities Cable, Inc. Crisp, 467 U.S. 691, 699 (1984); District Columbia Institute Mental Hygiene Medical Service D.C., 474 A.2d 831, 833 (D.C. 1984) (preemption doctrine applies District Columbia legislation). has also been repeatedly recognized that state laws can preempted federal regulations well federal statutes.   See, e.g., Hillsborough County, Florida Automated Medical Laboratories, Inc., 471 U.S. 707 (1995); Capital Cities Cable, Inc. Crisp, 467 U.S. 699 (1991); Fidelity Federal Savings Loan Association Cuesta, 458 U.S. 141, 153-54 (1982); District Columbia Institute 
Mental Hygiene Medical Service D.C., 474 A.2d 833 n.1.  See also Wells Chevy Chase Bank F.S.B., 832 A.2d 812, 820 (Md. 2003). noted above, under the ACA, Congress expressly requires that the only health plans that can made available Members Congress and their designated staff the federal government are those created under the ACA through State-created Exchange.  See  1312(d)(3)(D).  The Health Benefit Exchange Authority was created the District Columbia Council under the ACA, and authorized operate SHOP Exchange the District through which qualified small businesses could access health coverage for employees.  See D.C. Official Code,  31-3171.03;  31-3171.04(a)(2). limiting the SHOP Exchange small employers with average not more than employees during the preceding calendar year, D.C. Code  31-3171.01 prevents Congressional enrollment the SHOP Exchange because Congress does not fall within the definition small employer. 
Subsequently, however, OPM interpreted  1312(d)(3)(D) the ACA require Members Congress and their designated staff purchase insurance through an appropriate SHOP order obtain premium contribution from the federal government, and moreover, that the appropriate SHOP for Congress was determined the D.C. SHOPnotwithstanding the fact that single employer under the D.C. SHOP Exchange limited less employees.  See C.F.R.  890.102(c)(9).  CMS then issued guidance stating that Members Congress and designated congressional staff are eligible participate SHOP regardless the size and offering requirements set forth the definition qualified employer the Exchange final rule. .  See https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/members-of-congress-faq-9-30-2013.pdf (September 30, 2013) (emphasis added, footnote omitted). 
 
 Accordingly, District Columbia law limiting the SHOP small employers, thereby excluding the participation Members Congress and congressional staff, obviously conflicts with regulations authorizing Members Congress and designated staff enroll.  Where the local statute preempted federal statute regulation, the local statute must yield the extent the federal statute regulation applies.  Capital Cities, 467 U.S. 698; Jones Rath Packing Co., 430 U.S. 519, 525 (1977). this case, the size restrictions the District Columbia statute are preempted they apply the enrollment Members Congress and designated staff the District SHOP Exchange.  Thus, contrary Plaintiffs allegations, cannot unlawful for Members Congress and their staff purchase health insurance through D.C. SHOP.  For this reason well, Plaintiffs lawsuit must dismissed. 
CONCLUSION 
 For the above stated reasons, the Court should grant this motion and dismiss the complaint with prejudice.     
       
      Respectfully submitted,  
       
      IRVIN NATHAN  
      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: grace.graham@dc.gov 
 
        /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: William.causey@dc.gov 
      Attorneys for the District Columbia 
 
  
SUPERIOR COURT THE DISTRICT COLUMBIA 
Civil Division 
__________________________________________ 
KIRBY VINING, 
  Plaintiff, Case No. 14-6496 Judge Herbert Dixon, Jr. Next Event: Initial Conference 
EXECUTIVE BORAD THE January 16, 2015 
DISTRICT COLUMBIA HEALTH 
BENEFIT EXCHANGE AUTHORITY, al. 
  Defendants. 
__________________________________________ 
 
PROPOSED ORDER 
 
 Upon consideration the Motion Dismiss the Complaint filed the Defendants, the opposition thereto filed the Plaintiff, and the entire record, this ___ day __________, 2014, 
 ORDERED, that the Motion Dismiss the Complaint be, and the same hereby is, GRANTED; and further  
 ORDERED, that the Plaintiffs Complaint DISMISSED WITH PREJUDICE. 
 
 
       _____________________________ 
       Judge Herbert Dixon, Jr. 
 
Copies Sent to: 
 
MICHAEL BEKESHA 
PAUL ORFANEDES 
Judicial Watch, Inc. 425 Third Street, S.W. 
Suite 800 
Washington, 20024 
Email: mbekesha@judicialwatch.org  
Attorneys for Plaintiff 
  
  
GRACE GRAHAM  
WILLIAM CAUSEY        
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: William.causey@dc.gov 
Attorneys for the District Columbia