As appeals court judges run from a health care reform bill appeal, their clerks have delayed the case—and broken court rules to do it.

Many of the judges of the Third Circuit Court of Appeals have recused themselves from hearing the appeal in the case of Purpura v. Sebelius, a case that two New Jersey men filed pro se. Instead, they seem to have left some dirty work to their clerks.

The issues in Purpura v. Sebelius

Nicholas E. Purpura and Donald R. Laster Jr filed their case against the health care reform bill (HR 3590) in the fall of 2010. They said it was unconstitutional on fifteen separate grounds. After several delays, the Justice Department finally asserted that Purpura and Laster never showed an “injury in fact” that they need to have standing to sue the government. So Judge Freda L. Wolfson dismissed the case for lack of subject-matter jurisdiction.

Purpura and Laster appealed to the Third Circuit. Almost at once the Justice Department asked for more time to file their response brief. Their key ground: the Justice Department was very busy defending the health care reform bill in four other appeals. Purpura and Laster filed their own motion opposing the extension of time.

Earlier this week, Purpura and Laster contacted the Third Circuit clerk’s office to ask them which judge would be ruling on the extension of time. A clerk known only by her first name (Desiree) said that she did not know which judge would rule on the motion. The reason: most of the judges have recused themselves from this case or any of its issues. The plaintiffs then wrote a letter asking for the names of the judges who, in essence, ducked the case. (Purpura told your editor that he and Laster want to know why those judges would shirk their constitutional duty to rule on something as far-reaching as this health care reform bill.)

What happened today

The James A. Byrne Federal Courthouse, Philadelphia, PA, home of the Third Circuit Court of Appeals. More than one health care reform bill case is on appeal here. Photo: US Department of Justice

Today, Purpura talked with Chief Deputy Clerk Patricia Dodszuweit, and what she told him made him very irate. Purpura described that conversation to your editor this afternoon. Dodszuweit received Purpura and Laster’s letter asking for the names of the recused judges. In reply, she said that the office would not send those names as they asked. Apparently it is “not the policy” of the court to do so. Dodszuweit made no effort to explain.

Purpura then asked which judge was considering the motion to extend time. Dodszuweit replied that a ruling had already come down. But not from a judge—but from Chief Clerk Marcia Waldron.

The response brief was due on July 11, since Purpura and Laster filed their appeal on June 10. Apparently, Waldron extended the government’s time to August 10—a 30-day extension.

Is that legal?

Each Circuit Court of Appeals makes its own rules of appellate procedure. The Third Circuit is no different. Those rules are subject to the Federal Rules of Appellate Procedure that govern all the Circuit Courts of Appeals.

By the Federal rules, any Circuit Court can make a rule allowing a clerk to extend time for any “act.” Rule 27(b) reads:

The court may act on a motion for a procedural order—including a motion under Rule 26(b)—at any time without awaiting a response, and may, by rule or by order in a particular case, authorize its clerk to act on specified types of procedural motions. A party adversely affected by the court’s, or the clerk’s, action may file a motion to reconsider, vacate, or modify that action. Timely opposition filed after the motion is granted in whole or in part does not constitute a request to reconsider, vacate, or modify the disposition; a motion requesting that relief must be filed.

Rule 26(b) says that the court may extend the time for any act.

The Local Appellate Rules for the Third Circuit include Rule 31.4, Motions to Extend Time to File a Brief:

A party’s first request for an extension of time to file a brief must set forth good cause. Generalities, such as that the purpose of the motion is not for delay or that counsel is too busy, are not sufficient. A first request for an extension of 14 days or less may be made by telephone or in writing. Counsel should endeavor to notify opposing counsel in advance that such a request is being made. The grant or denial by the clerk of the extension must be entered on the court docket. If a request for extension of time is made and granted orally, counsel must file a confirming letter to the clerk and to opposing counsel within 7 days. A first request for an extension of time should be made at least 3 days in advance of the due date for filing the brief. A motion filed less than 3 days in advance of the due date must be in writing and must demonstrate that the good cause on which the motion is based did not exist earlier or could not with due diligence have been known or communicated to the court earlier. Subsequent requests for an extension of time must be made in writing and will be granted only upon a showing of good cause that was not foreseeable at the time the first request was made. Only one motion for extension of time to file a reply brief may be granted.

So according to the Third Circuit Court rules, the chief clerk may extend time to file a brief. But she may only extend that time for 14 days or less. Ms. Waldron signed the linked copy of the Local Appellate Rules, so she surely understands them. And in extending the time for 30 days instead of 14, she has broken this rule.

Purpura says that a case manager said that the clerk relied on Federal Rule 27b. But that rule simply gives authority to a given Circuit Court to delegate to its clerk(s) the job of extending time for briefs. It says nothing about for how long a judge or clerk may so extend time.

Whether the Justice Department “set forth good cause,” according to Rule 31.4, is far from clear. True, the DOJ counsel gave specific things that the government is busy doing. But they have not explained why the DOJ, with all its resources, cannot file a brief in this case while writing two more briefs and giving oral argument in two other cases.

Is the health care reform bill a judicial hot potato?

So it would seem. Why have so many judges recused themselves? Why wouldn’t any judge want to weigh in on a health care reform bill case, if only to bask in the limelight? Why have these judges let their clerks make decisions that they ought to make, especially in a case like this? And why are those same clerks breaking the rules to delay the case?

One might argue that the cases of Cuccinelli v. Sebelius and Florida ex rel. McCollum v. Department of Health and Human Services will make all other health care reform bill cases moot once the US Supreme Court decides one or both of them. But that logic won’t hold. Those two cases hang on only one Constitutional issue—the extent of Congress’ authority under the Commerce Clause, and whether the health care reform bill exceeds that authority by taxing (or fining) an inactivity. Purpura and Laster raise fourteen more issues, many of which are far more fundamental. Among them, HR 3590 has a misleading name. It originated in the Senate, not the House of Representatives, this although it raises taxes.

Purpura v. Sebelius might be a hot potato precisely for some of those fifteen reasons. But also, the health care reform bill has earned, not the love of the American people, but their hate. The McKinsey study showing that 30 percent of bosses will drop health-care insurance for their employees, once the health care reform bill takes effect, hit Washington like a thunder-clap. The more than a thousand “Obamacare Waivers” did not help, either. (Last week, HHS Secretary Kathleen Sebelius quietly announced that her Department would grant no more waivers.)

Purpura hinted that he might file a motion to vacate the extension of time, under Federal Appellate Rule 27(b).

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

[amazon_carousel widget_type=”ASINList” width=”500″ height=”250″ title=”” market_place=”US” shuffle_products=”True” show_border=”False” asin=”B00375LOEG, 0451947673, 0800733940, 0062073303, 1595230734, 1936218003, 0981559662, 1935071874, 1932172378″ /]