Metropolitan News-Enterprise


Thursday, July 14, 2011


Page 3


Judges Skeptical of Suit Challenging Health Care Law


By a MetNews Staff Writer


A panel of Ninth U.S. Circuit Court of Appeals judge appeared unlikely yesterday to reach the merits of an ex-lawmaker’s suit challenging the constitutionality of last year’s federal health care overhaul.

The three jurists hearing the case—Judge Richard Tallman, Senior Judge Ferdinand F. Fernandez, and Judge Pamela Ann Rymer—questioned whether plaintiffs Steve Baldwin, a former Republican member of the state Assembly, and the Pacific Justice Institute, had standing to bring the action. They also questioned their own jurisdiction over the subject matter.

Tallman and Fernandez heard the arguments yesterday morning in one of the circuit’s Pasadena courtrooms, while Rymer participated by telephone. The subdued atmosphere—fewer than 30 people, including court employees, were in the room—contrasted sharply with the attention given the debate over the bill’s passage and signing into law by President Obama.

The suit by Baldwin and PJI is one of about 30 brought nationwide, challenging mandates that individuals and employers purchase health insurance, along with other aspects of the law. The Sixth Circuit last month became the first appeals court to rule on those issues, upholding the law in a 2-1 decision.

Yesterday’s arguments were on an appeal from an order by U.S. District Judge Dana M. Sabraw—of the Southern District of California—denying the plaintiffs’ motion for preliminary injunction and dismissing their action, with leave to amend.

Sabraw concluded that the plaintiffs lacked standing because their allegations failed to demonstrate that they would be adversely affected by the law.

The judges yesterday sharply questioned plaintiffs’ attorney Peter D. Lepiscopo’s assertion that they jurisdiction to hear an interlocutory appeal from the order because it denied injunctive relief. Such orders are an exception to the general federal rule that an interlocutory appeal may only be taken by leave of the district court.

Tallman and Fernandez both suggested that the appeal was essentially from the granting of the motion to dismiss, and that they lacked jurisdiction because the plaintiffs had not availed themselves of the opportunity to amend the complaint to demonstrate standing.

Lepiscopo told the judges, however, that the plaintiffs were making a “serious” effort to obtain preliminary injunctive relief and were entitled to bring the interlocutory appeal.

Rymer, however, suggested that even if the court had jurisdiction, the plaintiffs had not made a showing on the record that they would be harmed by the mandates.

Tallman concurred.

There was, he said, no showing that Baldwin lacked insurance, or would refuse to purchase it or would cancel any existing insurance, once the individual mandate becomes effective. Nor had PJI, a conservative advocacy organization that largely uses volunteers and part-time employees, demonstrated that it was large enough to be subject to the employer mandates, which generally require that a company have 50 fulltime employees, the judge said.

Lepiscopo argued that the Affordable Care Act is unique in requiring purchase of a product, and that that fact alone injures the plaintiffs and gives them standing.

Tallman, however, said it would have been wise for the plaintiffs to amend the complaint rather than risk losing the case on appeal. Lepiscopo demurred, saying of the lack of an amendment, “I don’t think it’s relevant.”

Department of Justice attorney Beth Brinkmann said the government believes the appellate panel has jurisdiction, but that the district judge was correct as to standing.


Copyright 2011, Metropolitan News Company