The two plaintiffs in the 15-count pro se lawsuit against the health care reform bill filed a motion for default of appeal today. They did this as the original deadline for filing a brief passed.
What does this motion mean?
A motion for default of appeal means that the movant (the one making the motion) wins. The grounds for this motion are simple: the Department of Justice hasn’t filed a response brief yet. The District Court for New Jersey dismissed the case for lack of subject-matter jurisdiction, saying that the plaintiffs, as ordinary citizens, lacked standing. The plaintiffs appealed that dismissal on June 10.
The DOJ did seek an extension of time to file. But the grounds they gave are specious. They amount to nothing more than being too busy to write the brief.
What do the rules say?
The Local Appellate Rules for the Third Circuit Court of Appeals say that “counsel is too busy” is not good grounds for an extension. Those rules also say:
- The court rarely extends time to file a brief or for any other act.
- The court, or its clerk, may grant a first extension for 14 days or less.
- If a party wants a further extension, they must ask for it separately and show that something came up that they did not expect the first time.
- The court, or its clerk, may extend time for a reply brief once only.
What did the Court do in this case?
In the case of Purpura v. Sebelius, Chief Clerk Marcia M. Waldron extended the time for the DOJ appellee brief for thirty days, not fourteen. Nick Purpura and Don Laster, the two lead plaintiffs, filed a motion to vacate the extension almost at once. On the same day they filed a motion for a temporary restraining order (TRO) that would shut down the health care reform bill while the case was in the Third Circuit.
Now that the 30th day has passed since Purpura and Laster filed their appeal, they filed this motion for default, as if the extension of time never happened. They have asked the court to roll back the extension, and now have served notice that they expect the court to uphold their appeal on the original schedule. This will force the court to act. A judge on the Third Circuit must now ask himself: did the Court’s chief clerk act improperly in extending time for longer than the rules say she may, and on grounds that she may not accept as valid? If so, then the court must find that the DOJ has failed to file its brief on time. The usual remedy for that is that the appellant wins.
What would this do to the health care reform bill?
If the appeal holds, then the motion will shut down the health care reform bill. The motion asks for that directly, and gives the court the “fallback” of signing the order for the TRO.
Under any other circumstances, the case would go back to the District Court. But the DOJ has other problems in that forum:
- They have repeatedly failed to file briefs on time.
- The one answer they gave to the complaint addresses nine of the 15 counts in the lawsuit, but in a very weak way.
- The DOJ utterly failed to answer six of the counts.
Any one of those counts would be enough to invalidate the health care reform bill, because it has no severability clause. Congress usually writes in a clause saying that if a court strikes down any part of a law, the rest of the law can still stand. The 111th Congress did not do that with the health care reform bill. Judge Roger Vinson of the Northern Florida District ruled in his own case (Florida ex rel. McCollum et al. v. DHHS et al.) that that one fact made the entire law invalid, after he found the Minimal Coverage Mandate an invalid exercise of Congress’ authority “to regulate [interstate] commerce.”
More to the point: if a defendant does not answer any part of a complaint, he accepts that part as valid. Hence the argument by the DOJ that Purpura and Laster had not made a good-enough case for any injury in fact from the health care reform bill. But since Purpura and Laster filed their appeal, the Supreme Court handed down a powerful decision that could weigh decisively in their favor. The Court held, in Bond v. United States, that private citizens do have standing to challenge a law as unconstitutional, on the grounds that it interferes with a State’s “reserved powers.” Purpura and Laster do have a 10th Amendment count in their complaint. Furthermore, the Bond case came to the Supreme Court from the Third Circuit. That will surely weigh heavily on the mind of any judge that considers this motion.
Featured image: the Constitution of the United States. Photo: National Archives.
- Health care reform bill appeal skirmish
- Commerce, health care, and distortion
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Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.
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