Purpura v. Sebelius

Purpura et al. v. Sebelius et al. 3:10CV-04814 Decided: 2010

Purpura et al. v. Sebelius et al. is a pro se federal case, filed in the United States District Court for the District of New Jersey, listing as defendants the Secretaries of Health and Human Services, the Treasury, and Labor, individually and in their official capacities, seeking a declaration that the Patient Protection and Affordable Care Act of 2010 is unconstitutional and enjoining these Departments from carrying out their respective enforcement functions as this Act specifies.

At present (8 January 2010), the plaintiffs in the case have filed for summary judgment. The United States government, having failed to file an answer in the requisite time, have pleaded for and obtained extensions of time and intend to present their first motion-to-dismiss on 18 January.

Background

Nicholas E. Purpura and Donald R. Laster, Jr, the originating plaintiffs, are two activists belonging, respectively, to the Jersey Shore Tea Party Patriots organization and to Ocean County Citizens for Freedom, two organizations that are part of the larger Tea Party Movement. They are reticent to discuss their own backgrounds but have shown to be as expert in constitutional law, United States Supreme Court case law, and federal civil procedure as one can be without having any formal legal education or training.

Statement of fact

On September 20, 2010, they filed a lawsuit alleging fifteen separate counts by reason of which the ObamaCare act is unconstitutional. Specifically:

1. The Act, HR 3590, originated in the United States Senate and not the United States House of Representatives. Yet it is clearly a revenue-raising bill, because it includes various tax and penalty provisions. This violates Article I, Section 7, Paragraph 1, which requires that "all bills for raising revenue...originate in the House of Representatives."
2. The Act features a "minimum coverage mandate" that forces individuals, businesses, and other groups, on pain of various fines, to purchase health-care insurance with a mimimum level of coverage that in many cases far exceeds what these individuals, businesses, and groups are prepared to pay for. The government has no authority so to act, even under the Commerce Clause (Article I, Section 8, Clause 3).
3. The Act creates what would become an eighth uniformed service of the United States (in addition to the United States Army, Navy, Marines, Air Force, Coast Guard, United States Public Health Service Corps (the service that the Surgeon General of the United States commands), and the uniformed research service of the National Oceanographic and Atmospheric Administration. Because this new service would be an army (and in fact would be called the National Healthcare Army), it is not supposed to receive an appropriation for any period greater than two years (I.8.12). HR 3590 provides a four-year appropriation.
4. The "individual mandate" is a capitation tax, in violation of I.9.4.
5. The taxes on various medical devices constitute taxes and duties on State exports, in violation of I.9.5.
6. President Barack Obama was not legally qualified to sign the legislation, because he is in fact not a natural-born citizen within the actual meaning of Article II, Section 1, Clause 5. Therefore every signing that the President has done, including the signing of this Act, is ultra vires.
7. The Act double-taxes some forms of income, and taxes other forms of income that do not in fact exist. This exceeds the authority of the United States Congress under the Sixteenth Amendment.
8. The Act subjects patient medical records subject to unreasonable and warrantless search and seizure, in violation of the Fourth Amendment.
9. The Act deprives individuals of property without due process of law (Fifth Amendment) and thus subjects them to involuntary servitude (Thirteenth Amendment).
10. The Act directs the States, through the mandate to create "insurance exchanges," to take their residents' property without due process of law and to deny them the equal protection of the laws (Fourteenth Amendment).
11. The Act creates a mechanism for the establishment of certain "religious sects and divisions" as favored over others, because adherents thereof "don't believe in insurance." (First Amendment)
12. The Act creates a federal monopoly, with clear price-fixing and barriers to entry, in violation of antitrust law, this although it never once specifically abrogates those portions of existing antitrust law that the relevant provisions would violate.
13. The Act discriminates among races, through the differential taxation of certain therapies, cosmetic services, and the like that some races would likely utilize more than others (Fourteenth Amendment).
14. The Act implicates Members of Congress in an action violative of their oath "to support and defend the Constitution...against all enemies, foreign and domestic," namely the passing of a bill that they know, or ought to have known, is unconstitutional on its face. (Article VI)
15. The Act arrogates to the federal government certain powers that were never delegated to it, nor prohibited by it to the States, powers that are, therefore, reserved to the States, or to the people. (Tenth Amendment)

Standing to file

The elements of standing in any suit at common law are:

• Injury in fact, or a very significant probability of future harm.
• Direct causality between the injury and the conduct whereof the plaintiff complains.
• A likelihood that the court can and will grant relief of the injury.

Messrs. Purpura and Laster assert that they derive their standing from the simple fact that anything unconstitutional creates an "injury in fact" that all of the people suffer. In addition, many of their assertions create "a very significant probability of future harm." The electronic medical record (searchable without warrant), the "individual mandate" (as a capitation tax), and the price-fixing and barrier-to-entry aspects of the Act are the best examples.

Sequence of Events Thus Far

Initial filing

On 20 September 2010, Purpura and Laster served their complaint electronically on Secretaries Kathleen Sebelius, Timothy Geithner, and Hilda Solis. Of historical importance only, they did not serve their complaint upon the United States Attorney in New Jersey, as Rule 4 of the Federal Rules of Civil Procedure requires. (However, the time for the defendants to move the dismissal of the case on the basis of "insufficient service of process" has long passed, and by their subsequent correspondence, including the filing of motions of other kinds in this case, they have waived that defense.)

Filing for a TRO

On 1 October 2010, Purpura and Laster filed a motion for a Temporary Restraining Order, seeking to stop enforcement of HR 3590 immediately. Judge Freda L. Wolfson, through her clerk, ordered the two men to serve the order on the defendants without a judge's signature; on 12 October, the two men wrote to the judge to ask her to sign the order, but the judge ignored their request. On 19 October, Department of Justice Trial Attorney Ethan P. Davis wrote the judge and suggested that she deny the TRO immediately, because the two men could never demonstrate a likelihood of success on the merits, or that irreparable harm would come to them. He further said that the Department would "demonstrate in subsequent briefing" that each of the fifteen counts listed above was without merit. The letter bears the signatures of Assistant Attorney General Anthony West, his deputy Ian Heath Gershengorn, New Jersey US Attorney Paul Fishman, and two other Justice Department officials. (The presence of Fishman's signature is especially important, because by placing his signature on this document, Fishman indicates his awareness of the case. If the Justice Department intended to file a motion-to-dismiss alleging insufficient service on the basis of Purpura and Laster's initial failure to serve Fishman, Fishman had no business placing his signature on that letter.

In addition to the above, this letter was not a formal motion and was not even formatted as such. Nevertheless, Judge Wolfson issued an order the next day, denying the TRO. Purpura and Laster filed a reply affidavit, essentially asking Wolfson to reverse herself and enjoin the government after all. When she would not do this, Purpura and Laster then asked her to recuse herself from the case entirely. Wolfson, to date, refuses to do this.

Summary judgment

Rule 12 of the FRCP states that the United States government and its agencies, corporations, and other departments and officials, have sixty days in which to answer any suit against them. Aside from the letter in response to the TRO request, the Justice Department filed no pleadings, responsive or otherwise, no motions, and indeed no letters until well into December. And so, on December 9, 80 days after the initial service on the three Secretaries in Washington, Purpura and Laster filed a motion for summary judgment. The judge accepted that motion and scheduled a hearing for January 3, 2011. The government made no reply until December 17, at which time they claimed an automatic two-week extension of time as per Local Civil Rule 7.1(d)(5). This extended the time to file briefs to January 3, and put off the hearing until January 17.

But then on December 23, the defense filed a motion to stay the proceedings. As grounds for the stay, Davis reiterated yet again that he would file a brief that would demonstrate the lack of merit of the fifteen counts.

This document would not arrive in either Purpura or Laster's mailbox until December 30, because a severe blizzard intervened and disrupted mail service in the week between Christmas Day and New Year's Day. On December 29, six days after filing the motion, Davis called Purpura and asked him over the telephone for still another extension, saying that he, Davis, would do the same for Purpura if he asked. Purpura refused. As he explained not long afterward, he wanted Davis to argue for an extension in a formal motion or, better yet, in an open hearing.

When the motion-for-stay arrived the next day, Purpura and Laster were furious. They of course drafted an immediate reply, and for good measure filed a request for immediate forfeiture. They also included a suggested order that from now on, the Justice Department use the Federal Express overnight express agency for all future hard-copy filings, since the United States Postal Service had proved so unreliable and untimely in delivering a defense motion to the plaintiffs.

The court clerk's office was closed the next day, which was New Year's Eve. So the plaintiffs filed their affidavit and motion on January 3. But next, Davis sent yet another letter (not a motion) requesting a two-week extension of time, and making a third promise that he would plead, or move, that the fifteen counts were without merit. Davis also claimed that he was unable to file a brief in time on account of the two legal holidays that occurred between December 20 (the original deadline) and January 3 (the new deadline).

On 4 January 2010, Judge Wolfson issued an order denying the defense motion to stay the proceedings, but granting the extension of time. This grant seems highly dubious on close inspection, in view of Rule 6, which says that the time for a court to extend time for filing a brief is before the brief is due, and that the court may not extend time after-the-fact unless the failing party files a motion to extend the time, setting forth his excuse for not filing on time. The judge may in that event find that the failing party is guilty of nothing more serious than "excusable neglect."

There, as of 9 January 2010, the case rests.

External links

• Text of HR 3590, in its original form as an amendment-in-nature-of-substitution passed by the United States Senate
• Original pleading by plaintiffs
• Purpura v. Sebelius series from the Essex County Conservative Examiner