Frustrated HCR bill plaintiffs demand en banc hearing in Third Circuit

The Constitution assumed local control of most government functions, not the current centralized system.
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The two New Jersey men suing against the health care reform bill want an en banc hearing to stop unlawful acts and delays in their case.

Reasons for the health care reform bill appeal

Nicholas E. Purpura and Donald R. Laster Jr appealed their case, Purpura v. Sebelius, to the Third Circuit on June 13. The US District Court in New Jersey had dismissed the case in April. The court said that the two men lacked standing. Specifically, the court said that the two men had not shown how the health care reform bill hurt them in a concrete way.

The Supreme Court, in Bond v. United States, said that any loss of liberty is harm enough to give anyone standing. In fact, the Supremes said that a few days after Purpura and Laster filed their appeal. Besides, events have since vitiated much of the reasoning that the district court used. To give one example: the court wrote that Purpura and Laster could have employer-based health insurance coverage by 2014, when the health care reform bill takes effect. But recent studies predict that half of all employers in the United States will drop coverage for their workforces. The health care reform bill would make that coverage too expensive. (Critics have said from the start that the writers of the health care reform bill want that to happen, so that a single-payer system would be the de facto result.)

Delays in the appeal

James A. Byrne Federal Courthouse, Philadelphia, PA, where the DOJ has two health care reform bill cases on appeal.

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 and Laster filed a motion for an en banc hearing, and wrote an angry letter to Chief Judge Theodore A. McKee of the Third Circuit Court of Appeals. They listed seven separate motions and requests that the court has ignored or denied on specious grounds.

These motions and requests concern two specific issues. First, as soon as Purpura and Laster filed their appeal, the Justice Department requested an extension of time. The only argument that they offered was that they had four other briefs on cases about the health care reform bill also due in July. In short, they argued that they were too busy. The Third Circuit’s own rules say that counsel cannot get an extension of time merely because he is too busy. But the court’s chief clerk extended the time anyway—for 30 days, well over the 14-day limit that the rules set. Purpura and Laster have asked the court to vacate the extension. When the original deadline passed, they also filed for summary judgment. The court has ignored both motions.

Second, one of the court’s assistant clerks said that several judges had recused themselves from the case. Purpura and Laster have asked the court repeatedly which judges are recused. The court has refused to tell them. The two plaintiffs especially want two judges (Joseph Greenaway and Thomas Vanaskie) to recuse themselves. The reason: Barack H. Obama appointed them. As one of their counts, Purpura and Laster say that Obama is not even a natural-born citizen. Therefore he is not the President. Greenaway and Vanaskie would lose their jobs if the court found in Purpura and Laster’s favor. Therefore, they should not hear the case or any motion connected with it.

So when the clerks would not tell the plaintiffs which judges were recused, they filed a Motion for Recusal to take Greenaway and Vanaskie off the case. On July 28, Judge Vanaskie wrote a peremptory order denying the recusal motion. Vanaskie refused to give either reasoning or grounds. According to Purpura, Vanaskie’s choice of phrase suggests that he is assigned to the case.

Purpura told your editor another ground for suspicion. He earlier had heard that Judge D. Brooks Smith would hear the case. Jud Smith got his appointment from President George W. Bush. Therefore, he would be a likely vote against the health care reform bill. Purpura says that he found out, when a clerk let it slip, that Judge Smith was off the case. When he asked another clerk about that, the clerk became terrifically angry that he had found out about it.

Motion to vacate

The two plaintiffs have now filed a Motion to Recall and Vacate and Request for Judicial Intervention by an En Banc Court. They list seven motions and requests that the court has ignored or handled inappropriately:

  • Show Cause Order for a TRO which has still not been signed; (Ignored)
  • Motion to Vacate a procedurally infirm Extension of Time; (Ignored)
  • Motion for a Summary Judgment; (Ignored)
  • Motion for Recusal; July 15, 2011 (Denied July 28, 2011)
  • Request for the names of judges that recused themselves; (Ignored)
  • A request to be informed of which Judges are on the panel; (Ignored)
  • Entry of a Motion Entry for Default. (Ignored)

A temporary restraining order would stop the government from carrying out the health care reform bill. Purpura and Laster asked for that because they believe that the health care reform bill, and the steps to carry it out, would harm the country irreparably.

The preliminary statement expresses the great frustration and anger that the plaintiffs now feel:

For the Republic to function properly, an honorable judiciary is indispensable to justice.According to the Judicial Code of Conduct it is the obligation of every judge to observe the highest standards of conduct to preserve the integrity of the Court. It is indisputable the Court of Appeals for the Third Circuit has in the Appeal of Purpura v. Sebelius been operating as a law unto itself; and has no regard for the [Federal Rules of Civil Procedure], [Federal Rules of Appellate Procedure], [and Local Appellate Rules] as well [as] the Judicial Conduct Rules. [Thus it makes] a mockery of judicial procedure as well [as] violating “due process.” In short, one could say [that the court is acting like] a quasi-criminal enterprise. This Court thus far has demonstrated that impartiality is near impossible.

One could believe the Court fears criticism as the Quisling before Hitler from an all-powerful government that has a tendency to retaliate against anyone interfering with their Draconian policies. In short, this Court’s behavior is unacceptable that mandates an en banc review.

In their letter to the Chief Judge, Purpura and Laster express their anger even more forcefully.

Is the Court administered and run by the Rule of Law or by the whim and dictates of individuals as they [choose], regardless of the law?

To make sure that every judge knows about the complaint, Purpura and Laster copied every active and senior judge on the Third Circuit. That included Vanaskie. But in Vanaskie’s case, they left off the title of “Hon.” for “Honorable.”

Reasons for an en banc hearing

When a court sits en banc, every judge on that court hears the case. Losing parties in an appeal sometimes ask the appellate court to re-hear the appeal en banc. This gives them one more chance for a favorable result before petitioning for certiorari to the Supreme Court. But Purpura and Laster now are asking the court to sit en banc to hear a breach of judicial conduct.

The court might have no choice but to grant this motion. Technically, the issue before the Third Circuit is whether Purpura and Laster have standing to sue over the health care reform bill. But if the court finds in their favor, the case is over, and the plaintiffs automatically win. The reason: the Justice Department did not answer any of the fifteen counts in the original lawsuit until far too late, and never answered six of the fifteen counts.

One of those counts says that Obama is not qualified to be President. So a finding for Purpura and Laster on the standing issue effectively removes Obama from office. And according to Amendment XX of the Constitution, the President in that event would not be Joe Biden, but Dick Cheney. Of course, the health care reform bill would be invalid. But also, every judge or Justice whom Obama appointed would automatically lose his or her appointment. That includes Judges Greenaway and Vanaskie of the Third Circuit, and Justices Elena Kagan and Sonia Sotomayor of the Supreme Court.

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