Frustrated HCR bill plaintiffs demand en banc hearing in Third Circuit

The Constitution, which sets forth the principle of rule of law, defines what is unconstitutional, and guarantees freedom of speech and other liberties of a Constitutional republic, and also describes the impeachment power. (How many know of the Jewish roots of this document?) Hypocrisy threatens Constitutional government. Could Israel use a constitution like this? More to the point: would a Convention of States save it, or destroy it? (Example: civil asset forfeiture violates the Constitution.) Quick fixes like Regulation Freedom Amendments weaken it. Furthermore: the Constitution provides for removing, and punishing, a judge who commits treason in his rulings. Furthermore, opponents who engage in lawfare against an elected President risk breaking the Constitution.
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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.

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Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.

17 Responses to Frustrated HCR bill plaintiffs demand en banc hearing in Third Circuit

  1. Frances Black says:

    This is really all just performance art (albeit high risk) but performance art, right?

  2. Howard Appel says:

    Too bad that your legal and factual analysis is up to you usual standards, not worth a bucket of warm piss. Bond v. US held that a criminal defendant who faced jail time (loss of liberty) had standing. As no one is subject to jail time under the ACA, standing is not there.

    As to your arguments that Judges nominated by Obama would not continue in office if Obama were somehow forced out (which is not happening as he is a “natural born citizen under every standard ever adopted by the US Supreme Court – you may of heard of them), you seem to forget that whole part of “approved by the Senate.” OOOOOPS.

    But’s let play along for the moment and assume that the plaintiffs have standing. Usual default rules don’t apply when suing the US. Even if there is a default, the court is still required to actually look at the merits of the case, in which case your plaintiffs are again losers.

    Next, your article, as your articles generally are, is full of innuendo, gossip and hearsay. “the clerk became terrifically angry” Well now, if that is not absolute proof of something going on, I don’t know what is (sarcasm alert for your readers).

    Lastly (only because I have work to do and you are really not that amusing), leaving the “Honorable” off the judges name is (a) akin to a bully calling someone a nasty name on a playground, (b) guarantied to persuade the other judges of just how upset you really are and (c) guarantied to get the other judges on your side. After all, they would not want to have you take the “honorable” off their names. Oh no, now you have them so scared!!!!!!!!!

    Purpura and Laster, along with Taitz and the other birthers, are sure evidence that many villages are missing their idiots.

    Howard M. Appel

  3. Horace says:

    They sound like a couple of vexatious litigants to me. And your support of them appears to be motivated, not by any solid legal analysis, but rather by your dislike of the healthcare reforms.

  4. CJT1101 says:

    “The Third Circuit’s own rules say that counsel cannot get an extension of time merely because he is too busy.” This is wrong. As Purpura and Laster note, rule 31.4 says that extensions of time have to set forth good cause and “[g]eneralities, such as that the purpose of the motion is not for delay or that counsel is too busy, are not sufficient.” But that doesn’t mean that you can’t get an extension because you’re too busy. It just means that you have to say more than “I’m too busy,” i.e., you have to give specific details about what your other obligations are so the court can gauge whether they justify an extension. The purpose of the rule is to bar parties from relying on “generalities.” The Government thus fully complied with the rule by providing a specific rundown of deadlines from other cases that fell in the same time-frame as the briefing deadline for this case.

    I noted a previous report in which Purpura and Laster explained that they’re proceeding pro se because “[a]t best, lawyers get in the way.” This makes me suspect that the two are underestimating the utility of attorneys, since any halfway competent one could have explained their basic misinterpretation of 31.4 to them. The idea that attorneys would not be allowed to seek extensions on the basis of other, legitimate pre-existing obligations is absurd; that is far and away the most common reason that extensions are requested and granted.

    • Terry A. Hurlbut says:

      Yeah, well, hey—didn’t you read the part of Rule 31 that says that the court, or a clerk, may extend time for fourteen days max? This clerk extended it for thirty. Got an explanation for that?

      And if their subsequent motions were so infirm, why won’t the court answer them? And I mean all of them.

      I’ll tell you something: I’ve gotten very close to a very messy divorce. (Nunnayer bizznizz whose divorce, or what relationship to me, so don’t ask.) I watched the marital estate go almost entirely to the lawyers. It was worse than the fictitious case of Jarndyce v. Jarndyce in Charles Dickens’ blistering novel about the British Chancery system. And you wonder why those guys would conclude that they could take on the DOJ by themselves?

      Besides: as like as not, any other lawyer would be a ‘fraidy cat about this case.

      • TC says:

        Actually, that’s not what the rule says. The rule does not put a cap on how long an extension can be. The only time the rule mentions 14 days is in this sentence: “A first request for an extension of 14 days or less may be made by telephone or in writing.” Seriously, where did you get your interpretation? You’re just making it up as you go.

        And your obsession with Bond is staggeringly misplaced. As has been pointed out repeatedly, Bond was charged under a criminal statute which put her in a completely different position that these two.

        You should go back and actually read the District Court’s dismissal memo; specifically pages 7 and 8 where it talks about standing.

        “A plaintiff will fail to meet this element if the plaintiff merely raises a generally available grievance about government – claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large. To invoke judicial power the claimant must have a
        ‘personal stake in the outcome,’ or a ‘particular, concrete injury,’ or ‘a direct injury,’ in short, something more than ‘generalized grievances’.” (citations omitted)

        In other words, the plaintiffs have not shown that they are any more impacted by this than any other person. This is unlike Bond, who was personally facing incarceration because of the statute. Because they can show no special harm is going to befall them, they lack standing.

        It should be noted that their failure to show standing is due entirely to their crappy pleading. As the Court stated in its opinion, several other parties have gotten over the standing hurdle. Purpura and Laster, because they clearly have no idea what they’re doing, filed a crappy Complaint which didn’t meet the standard. If they had spent some time actually talking about the facts instead of spouting conclusory talking points, they might have lasted longer before being dismissed.

        To answer your next question: no, this does not mean that you have to break the law in order to be able to challenge a statute. But it does mean that you have to show that you, personally, have more skin in the game than the ordinary citizen.

        When you finish fawning over Bond, you really should read Arizona Christian School Tuition Organization v. Winn. That case is on point here and that case is going to kill you.

        Lastly, even if they win this appeal (which they won’t), they still don’t win the case. Filing the motion to dismiss (let alone having it granted), stopped the clock on the government’s deadline to Answer. They never answered the entire complaint because they never had to. If the appeal succeeds, the government will be given additional time to respond.

        But laying that aside, you don’t really believe that a court will oust a president, nullify an election, install an un-elected private citizen and destroy the government based on a default, right? Even without knowing that it’s insanely easy to get a default judgment overturned, you couldn’t possibly think that the court would do all that because of one missed deadline, right? Or have I overestimated you?

        • Terry A. Hurlbut says:

          That’s not how the opinions read in Bond. Loss of liberty did not have to mean loss of physical liberty, i.e. arrest, conviction, and imprisonment. One loses his liberty any time a law tells him that he may not (or must) do something.

          Those opinions in Bond say that absolutely anyone has skin in this game.

          Besides which, the defense didn’t even file any motion to dismiss until after the deadline had passed. They filed motions in response to a TRO. That was it, until they waited too long to answer the complaint.

          And I have seen courts do stranger things than you suppose.

          • TC says:

            Show me where Bond says that. (Hint: you won’t be able to, because it doesn’t.) What Bond actually says is:

            “Bond’s challenge to her conviction and sentence ‘satisfies the case-or­ controversy requirement, because the incarceration . . . constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction.'” (Edits in original)

            Or, in other words, because she was facing incarceration, she clearly had a great deal of skin in the game.

            Similarly, other case law directly contradicts your belief.

            “The party who invokes the power [of the federal
            courts] must be able to show not only that the statute
            is invalid, but that he has sustained or is immediately
            in danger of sustaining some direct injury as a result
            of its enforcement, and not merely that he suffers in
            some indefinite way in common with people gener­ally.” Doremus v. Board of Ed. of Hawthorne, 342 U. S. 429, 434 (1952)

            “[T]he injury must affect the plaintiff in a personal and individ­ual way.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992)

            But the fun part of this is that I don’t have to convince you. You’re simply wrong and the court is going to keep telling you that you’re wrong.

            As for your statement that the government defaulted and did not file anything timely: I don’t know because I haven’t looked at the docket, but I’m gonna bet you’re wrong there too. Your misinterpretation of the law and facts thus far has shown you’re not a credible source. Also, I simply don’t believe that the government sat and did nothing as the deadline passed. I find it more plausible to believe that a trio of non-lawyers are misreading the rules of civil procedure and don’t know what they’re talking about.

      • Bryan says:

        Terry A. Hurlbut, our hosts, asked: “And if their subsequent motions were so infirm, why won’t the court answer them? And I mean all of them.”

        Recent news: On August 1 a three-judge panel denied the plaintiffs’ outstanding motions. There’s nothing unusual about taking this long, or even longer.

        From Terry’s article: “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.”

        The law does not support granting the motion. Complaints of judicial misconduct are governed by 28 USC Chapter 16. The escalation of a meritorious complaint never goes to the Circuit Court en banc. It goes: Clerk of the Court of Appeals –> Chief Judge of the circuit –> Special Committee appointed by the Chief Judge –> Judicial Council of the circuit –> Judicial Conference of the U.S. –> U.S. House of Representatives for impeachment –> U.S. Senate for trial.

        The current motion is procedurally silly. Furthermore, even if P&S file their complaint under 28 USC Chapter 16, it would be unlikely to get far, because it is “directly related to the merits of a decision or procedural ruling”, which is grounds for its dismissal [28 USC 352(b)(1)(A)(ii)].

  5. […] More Blog News Here : Health care reform bill frustration – Conservative News and Views […]

  6. Frances Black says:

    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)

  7. […] (Aug. 3, 2011) — Nicholas Purpura and Donald E. Laster, Jr., both plaintiffs and appellants in the case of Purpura v. Sebelius, have asked the Third Circuit Court of Appeals in Philadelphia to convene an en banc panel of judges to review alleged “judicial misconduct.” […]

  8. […] (Aug. 3, 2011) — Nicholas Purpura and Donald E. Laster, Jr., both plaintiffs and appellants in a box of Purpura v. Sebelius, have asked a Third Circuit Court of Appeals in Philadelphia to assemble an en banc panel of judges to examination purported “judicial misconduct.” […]

  9. […] (Aug. 3, 2011) — Nicholas Purpura and Donald E. Laster, Jr., both plaintiffs and appellants in the case of Purpura v. Sebelius, have asked the Third Circuit Court of Appeals in Philadelphia to convene an en banc panel of judges to review alleged “judicial misconduct.” […]

    • Zainab says:

      It doesn’t matetr that the SCOTUS declares Obamacare unconstitutional, the decision will help Obama campaign on a single source provider, which is what he wanted in the first place. Obama will campaign that it will be republicans against the middle and poor class warfare on healthcare.

  10. […] (Aug. 3, 2011) — Nicholas Purpura and Donald E. Laster, Jr., both plaintiffs and appellants in a box of Purpura v. Sebelius, have asked a Third Circuit Court of Appeals in Philadelphia to assemble an en banc panel of judges to examination purported “judicial misconduct.” […]

  11. […] Frustration […]

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