The two men challenging the health care reform bill asked again for an en banc hearing after learning, over the Internet, of a new order. The order dismisses all the pending motions they had filed—but they have not yet received a hard copy. The order also, for the first time, names the three judges who will hear their case. One of the judges—Joseph Greenaway, Jr—is an Obama appointee.

Background of health care reform bill action

On June 15, Nicholas E. Purpura and Donald R. Laster Jr appealed their case challenging the health care reform bill (Purpura v. Sebelius) to the Third Circuit. The Justice Department filed for an extension of time, saying that they had four other cases about the health care reform bill due in short order. The clerk extended the time—for thirty days, though the Local Appellate Rules set a limit of fourteen days. (They still do, even after the court revised the rules three days ago.)

Purpura and Laster took exception to this. They filed a motion to vacate the extension. And when the original deadline for a response brief passed, and with no word from the court on their motion to vacate the extension, they filed a motion for default. They also wrote letters asking who was going to hear their case. When someone told them over the telephone that several judges had recused themselves, they asked who they were. The clerks refused to tell them either who had recused themselves or who were going to handle their case.

Accordingly, they filed formal motions for recusal, and aimed them at Judges Joseph Greenaway Jr. and Thomas Vanaskie. The man now holding office as President, Barack H. Obama, appointed both men in 2010. Purpura v. Sebelius alleges that Obama was not eligible to be President, and so could not sign the health care reform bill. The outcome of the appeal would place their appointments in jeopardy.

On July 15, they got an order from Judge Vanaskie saying that he would not recuse himself. He stated no cause. So Purpura and Laster filed a motion to vacate Judge Vanaskie’s order. In that same motion they asked the full Third Circuit Court to sit en banc to hear them, and why they had heard nothing on their earlier motions.

The latest orders

On August 1, 2011, two fresh orders appeared on the PACER system, an electronic subscription network with access to every court filing in any US federal court. They were:

1. An order denying every motion that Purpura and Laster had filed thus far. Judge Greenaway signed the order.
2. An order by which Judge Greenaway refused to recuse himself.

Both orders named the judges that the Third Circuit assigned to the case. This is the first notice that Purpura and Laster have had on this point. Those judges are:

• Dolores Korman Sloviter, whom President James Earl Carter Jr. appointed in 1979. Judge Sloviter served as Chief Judge of this court from 1991 through 1998.
• Kent A. Jordan, whom President George W. Bush appointed in 2006.
• Judge Greenaway.

Donald R. Laster Jr, co-plaintiff against the health care reform bill. Photo: self

Laster is a PACER subscriber. But PACER has no automatic notice system for subscribers who happen to be parties to pending cases. He found out about the two orders from your editor. A commenter to this site, named Frances Black, left this comment on an earlier story:

Do they not keep up with the rulings in their case? From yesterday’s docket:

08/01/2011 Open Document ORDER (SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges) The appellant’s motion for an injunction pending appeal is denied. Appellant’s motion to vacate the order granting the government an extension of time to file a response brief is denied. Appellant’s motion for default of appeal and order for declaratory relief is also denied. Appellant’s motion requesting that the court disclose the names of those judges who have recused themselves from this case is denied. Appellants motion for entry of default is denied., filed. Panel No.: BLD-236. GREENAWAY, JR., Authoring Judge. (DW)

08/01/2011 Open Document ORDER (GREENAWAY JR., Circuit Judge) denying Motion to Recuse Judge Greenaway, JR. filed by Appellants Nicholas Purpura and Donald R. Laster, Jr., filed. Panel No.: BLD-236. GREENAWAY, JR., Authoring Judge. (DW)

Black gave no link. But Laster confirmed those orders to your editor by signing in to PACER and retrieving them. Neither he nor Purpura had received hard copy.

The text of the mass-dismissal order has a curious date. The date of July 14, 2011 appears at the top right. But the date of the signature is August 1, 2011.

New motion to vacate

So now Purpura and Laster have filed another motion, this one to vacate the mass dismissal order. Their grounds are simple: Judge Greenaway had no business signing that motion, and ought not to have anything to do with this case.

Purpura and Laster challenged the health care reform bill on fifteen separate grounds. One of these is that Obama is not a natural-born citizen. But they do not allege that Obama does not have a valid birth certificate. (Others have.) They say that Obama’s father was a British colonial subject, and that alone disqualifies him from running for President, no matter where he was born.

Every other count challenges the health care reform bill itself. Count Six challenges Obama’s authority to sign the health care reform bill into law. But the form of that challenge also implies a challenge to his authority to appoint federal judges. That gives every judge (and two Supreme Court Justices) who owes his or her appointment to Obama a “financial interest” in the outcome of the case.

The United States Code, Title 28, Section 455, says that a judge may not hear a case in which he has a financial interest. The law clearly says that a judge shall—not “may” but shall—disqualify himself in that event. 28 U.S.C. § 455 paragraph (b)(4) clearly says that a judge shall disqualify himself if:

He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.

Losing his job would certainly qualify as “an interest that could be substantially affected by the outcome of the proceeding.”

Paragraph (d)(1) defines “proceeding” to include

pretrial, trial, appellate review, or other stages of litigation.

For Greenaway to stay on this case also breaks the Rules for Judicial Conduct. Purpura and Laster wrote as much in another letter to Chief Judge Theodore McKee, a Clinton appointee. They copied their letter to every active and senior judge in the Circuit, as they did with their earlier letter.

The standing issue again

Purpura and Laster also addressed the issue that brought them to the Third Circuit: whether they have standing to challenge the health care reform bill. They quoted Justice Antonin Scalia, who wrote:

When an individual who is the very object of a law’s requirement or prohibition seeks to challenge it, he always has standing. (Doctrine of Standing as an Essential Element of Separation of Power, 17, Suffolk U. L. Rev. 881, 894 (1983)

Not a word of that text says, or implies, that a person must violate the requirement or prohibition of a given law to challenge it. One need only be the object of that law. And as Purpura and Laster point out, the individual mandate in the health care reform bill affects everyone.

Where the case goes from here

The government has a deadline of August 11 to respond, assuming that the court denies the motion to vacate. Purpura and Laster could file fresh motions for default if the government fails to respond.

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

Related:

• Legal confusion
• Frustration
• More motions
• Recusal motion
• Default motion
• Appeal skirmish
• Commerce, health care, and distortion
• Plaintiffs seek injunction
• Appeal delayed
• Plaintiffs have standing after all
• DOJ wants more time on HCR appeal
• Another appeal
• Hazardous to your health
• Court dismissal

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