The Department of Justice (DOJ) wants more time to answer the appeal of a pro se anti-HCR case. That very request shows their weakness.

Where the case now stands

The case of Purpura v. Sebelius is the most comprehensive case against the health care reform bill. Plaintiffs Nicholas E. Purpura and Donald R. Laster Jr say that the bill is unconstitutional for fifteen separate reasons. These reasons vary from the arcane (that the bill favors certain religions because their adherents can get exemptions from the Minimal Coverage Mandate but adherents of “newer” religions cannot) to the sweeping (Obama is not qualified to sign that or any other bill, because he is not a natural-born citizen).

Federal Judge Freda L. Wolfson of the New Jersey District Court has ruled that Purpura and Laster do not have standing to sue. The two have appealed to the Third Circuit Court of Appeals. According to federal court rules, an appeal respondent has thirty days to answer an appeal brief, “rounded forward” to the next business day.

Why does the DOJ say they deserve an extension?

The DOJ, in their motion for an extension, give three reasons. The first of these, according to Purpura and Laster, is totally specious. They say that they never got an extension before.

That might be true of the appeal of the case. Of course they never got an extension from the Third Circuit. But the DOJ got extension after extension from Judge Wolfson. And as the plaintiffs say in their opposition brief, Wolfson should never have given the DOJ those extensions.

The James A. Byrne Federal Courthouse, Philadelphia, PA, home of the Third Circuit Court of Appeals. Photo: US Department of Justice

Next, the DOJ says that they need more time to prepare by talking to the “affected agencies.” None of these agencies of the HHS, Treasury, or Labor Departments could possibly speak to the plaintiffs’ standing to sue the government. Either a citizen may sue the government, maybe because he doesn’t like the idea of his “electronic” medical records being subject to search and seizure at any time, or he may not. That is the issue before the Court of Appeals, and the only issue that matters. The directors and their assistants at these “affected agencies” are not lawyers. As Purpura said to your editor this afternoon: if the DOJ, a department made of lawyers, can’t argue that someone lacks standing, how do they expect these other agencies to? If any other lawyer had to ask his client for advice on how to argue his case, the client would start looking for another lawyer. (Purpura and Laster’s opposition brief asks the same question.)

The third reason strikes your editor as just plain weird. Your editor cannot make this stuff up:

The extension is also necessary in light of appellate deadlines in other Affordable Care Act cases that fall within or shortly after the briefing period. On June 22, this Court will hear oral argument in New Jersey Physicians v. President of the United States, no. 10-4600 (3^rd Cir.). On June 27, the government’s answering brief is due in Seven-Sky v. Holder, no. 11-5047 (D.C. Cir.). On June 30, the government’s answering brief is due upon extension in US Citizen Association v. Sebelius, No. 11-3327 (6^th Cir.) On July 13, the Ninth Circuit will hear oral argument in Baldwin v. Sebelius, No. 10-56374 (9^th Cir.).

Only one of those cases is up before the Third Circuit. Is the DOJ trying to help the Third Circuit manage its docket? The Third Circuit Court, not any appellant or respondent, manages its own docket and decides when it wants to see anyone’s brief. The other cases shouldn’t matter anyway. Whether any given plaintiff has standing is a simple matter. Yet the DOJ suggests that it cannot spare the time to argue the standing issue in this case, when it has four other cases on its plate.

That those four cases all deal with the matter at hand—the health care reform bill—already shows that the government is, quite simply, under legal siege. But more than that: if the DOJ needs sixty days in all to argue that two pro se plaintiffs do not have standing, that means that the matter is not so simple. And that suggests that they do have standing, and the DOJ knows it and is simply trying to stall.

To sum up

The DOJ is in a weak spot. If they could argue soundly that Purpura and Laster have no standing, they would have done it at once. And if they’re so worried about how to manage all their other cases, why not take an easy shot and make this case go away?

The likely answer: they can’t. And once the case goes back to the New Jersey District, the DOJ will be in an even weaker spot. Because they have messed up their case in several ways:

1. They didn’t answer on time.
2. They threw away their last chance to argue that the plaintiffs hadn’t served everybody on the government side, as they should have.
3. When they did answer, they answered only nine of the fifteen counts.

Purpura and Laster filed their opposition brief on the day that they got the motion to extend. The next step is up to a randomly chosen judge on the Third Circuit Court.

Featured image: the United States Constitution. Photo: National Archives of the United States.

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