1/28/2015

fox news: Boehner confirms lawsuit against Obama, defends Netanyahu invitation

Boehner said that he will file a lawsuit against Obama’s  immigration actions.

26 states have filed a lawsuit against Obama’s immigration actions.

The Obama administration has requested dismissal of US House of Representatives v Burwell lawsuit and the 26 states’ immigration lawsuit.

 

Benghazi | Select Committee Hearing | January 27, 2015

Oversight Committee Details State Department Efforts to Obstruct Benghazi Investigation in 37 Page Letter to Select Committee. July 11, 2014. I used Chrome to open the full letter.

1/20/2015

Joni Ernst GOP Response

http://www.politico.com/story/2015/01/gop-response-transcript-joni-ernst-gop-response-114423.html

Barry Soetoro aka Barack Hussein Obama

Obama Gene Tew

Image by Gene Tew

 

STRAIGHT OUT OF THE COMMUNIST MANIFESTO

This image was around in 2009; it is appropriate today.

From each according to his ability; the rich. To each according to his need; college students.

“…It’s like I told Joe the Plumber, we have to spread the wealth around. We have to redistribute the wealth of the country through taxation”

1/19/2015

Lawsuit filed in Texas | Immigration

Related: UNITED STATES HOUSE OF REPRESENTATIVES Case No. 14-cv-01967

You can read below or open PDF file below.

Link to PDF file


Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION

STATE OF TEXAS;

STATE OF ALABAMA;

STATE OF GEORGIA;

STATE OF IDAHO;

STATE OF INDIANA;

STATE OF KANSAS;

STATE OF LOUISIANA;

STATE OF MONTANA;

STATE OF NEBRASKA;

STATE OF SOUTH CAROLINA;

STATE OF SOUTH DAKOTA;

STATE OF UTAH;

STATE OF WEST VIRGINIA;

STATE OF WISCONSIN;

GOVERNOR PHIL BRYANT, State of Mississippi;

GOVERNOR PAUL R. LEPAGE, State of Maine;

GOVERNOR PATRICK L. MCCRORY, State of North Carolina; and

GOVERNOR C.L. “BUTCH” OTTER, State of Idaho,

Plaintiffs,

vs.

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UNITED STATES OF AMERICA;

JEH JOHNSON, Secretary of the Department of Homeland Security;

R. GIL KERLIKOWSKE, Commissioner of U.S. Customs and Border Protection;

RONALD D. VITIELLO, Deputy Chief of U.S. Border Patrol, U.S. Customs and Border Protection;

THOMAS S. WINKOWSKI, Acting Director of U.S. Immigration and Customs Enforcement; and

LEÓN RODRÍGUEZ, Director of U.S. Citizenship and Immigration Services,

Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1. The State of Texas, the State of Alabama, the State of Georgia, the State of Idaho, the State of Indiana, the State of Kansas, the State of Louisiana, the State of Montana, the State of Nebraska, the State of South Carolina, the State of South Dakota, the State of Utah, the State of West Virginia, the State of Wisconsin, and Governor Phil Bryant of Mississippi, Governor Paul R. LePage of Maine, Governor Patrick L. McCrory of North Carolina, and Governor C.L. “Butch” Otter of Idaho (collectively, “Plaintiffs” or “Plaintiff States”) seek declaratory and injunctive relief against the United States and the above-named federal officials (collectively, “the Defendants”) for their violations of the Take Care Clause, U.S. CONST. art. II, § 3, cl. 5, and the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.

2. This lawsuit is not about immigration. It is about the rule of law, presidential power, and the structural limits of the U.S. Constitution.

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3. On November 20, 2014, the President of the United States announced that he would unilaterally suspend the immigration laws as applied to 4 million of the 11 million undocumented immigrants in the United States.

4. The President candidly admitted that, in so doing, he unilaterally rewrote the law: “What you’re not paying attention to is, I just took an action to change the law.”

5. In accordance with the President’s unilateral exercise of lawmaking, his Secretary of the Department of Homeland Security (“DHS”) issued a directive that purports to legalize the presence of approximately 40% of the known undocumented-immigrant population, and affords them legal rights and benefits. See Memorandum from Jeh Charles Johnson, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Whose Parents are U.S. Citizens or Permanent Residents (Nov. 20, 2014) (“DHS Directive”) (attached as Ex. A).

6. That unilateral suspension of the Nation’s immigration laws is unlawful. Only this Court’s immediate intervention can protect the Plaintiffs from dramatic and irreparable injuries.

I. THE PARTIES

7. Plaintiffs are the State of Texas, the State of Alabama, the State of Georgia, the State of Idaho, the State of Indiana, the State of Kansas, the State of Louisiana, the State of Montana, the State of Nebraska, the State of South Carolina, the State of South Dakota, the State of Utah, the State of West Virginia,

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the State of Wisconsin, and the Governors of Mississippi, Maine, North Carolina, and Idaho.

8. Defendant United States of America is sued under the Administrative Procedure Act (“APA”). See 5 U.S.C. § 703 (“[T]he action for judicial review may be brought against the United States.”).

9. Defendant Jeh Johnson is the Secretary of DHS. Johnson and DHS are responsible for U.S. Citizenship and Immigration Services (“USCIS”), U.S. Customs and Border Protection (“CBP”), and U.S. Immigration and Customs Enforcement (“ICE”). Johnson authored the DHS Directive.

10. Defendant R. Gil Kerlikowske is the Commissioner of CBP. Defendant Kerlikowske shares responsibility for implementing the DHS Directive. And Kerlikowske is Defendant Vitiello’s supervisor.

11. Defendant Ronald D. Vitiello is the Deputy Chief of U.S. Border Patrol. Vitiello authored a May 30, 2014, memorandum entitled “Unaccompanied Alien Children Transfer Process Bottleneck” (“Vitiello Memorandum”), which recognizes that Defendants’ abandonment of the federal immigration laws caused and is continuing to cause crises in the Plaintiff States.

12. Defendant Thomas S. Winkowski is the Acting Director for ICE. ICE administers a formal program for allowing undocumented immigrants to apply for deferred action and to appeal for reconsideration if deferred action is denied.

13. Defendant León Rodríguez is the Director of USCIS. Rodríguez and USCIS administer the Deferred Action for Childhood Arrivals (“DACA”) program.

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President Obama announced the DACA program on June 12, 2012, to allow undocumented immigrants to stay in the United States in violation of the Nation’s immigration laws. And USCIS is the principal agency charged with implementing the DHS Directive.

II. JURISDICTION AND VENUE

14. The Court has federal question jurisdiction under 28 U.S.C. § 1331 because this action arises under the U.S. Constitution, art. II, § 3, cl. 5, and the APA, 5 U.S.C. § 706. The Court also has jurisdiction under 28 U.S.C. § 1346 because this is a civil action or claim against the United States. Finally, the Court has jurisdiction to compel an officer or employee of the above-named federal agencies to perform his or her duty under 28 U.S.C. § 1361.

15. Venue is proper in this District under 28 U.S.C. § 1391(e) because the State of Texas is a resident of this judicial district, and a substantial part of the events or omissions giving rise to the Plaintiffs’ claims occurred in this District.

16. This Court is authorized to award the requested declaratory and injunctive relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, the APA, 5 U.S.C. § 706, and 28 U.S.C. § 1361.

III. FACTUAL ALLEGATIONS

A. The DREAM Act

17. On March 26, 2009, Senator Richard Durbin and Representative Howard Berman introduced the DREAM Act in the U.S. Senate and House, respectively. See DREAM Act of 2009, S. 729 (111th Cong.) (2009); American Dream Act, H.R. 1751 (111th Cong.) (2009). Both bills would have allowed

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undocumented immigrants to apply for conditional permanent resident status if, among other things, (a) they entered the United States before their 16th birthdays, and (b) they had been in the United States continuously for five years.

18. The President repeatedly and forcefully urged Congress to pass the DREAM Act.

19. And the President consistently insisted that he could not achieve the goals of the DREAM Act on his own. He said, for instance:

  • “Comprehensive reform, that’s how we’re going to solve this problem. . . . Anybody who tells you . . . that I can wave a magic wand and make it happen hasn’t been paying attention to how this town works.” (May 5, 2010)
  • “I am president, I am not king. I can’t do these things just by myself. . . . [T]here’s a limit to the discretion that I can show because I am obliged to execute the law. . . . I can’t just make the laws up by myself.” (Oct. 25, 2010)
  • In response to a question about whether he could stop deportation of undocumented students with an executive order: “Well, first of all, temporary protective status historically has been used for special circumstances where you have immigrants to this country who are fleeing persecution in their countries, or there is some emergency situation in their native land that required them to come to the United States. So it would not be appropriate to use that just for a particular group that came

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here primarily . . . for economic opportunity. With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed. . . . There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as President.” (Mar. 28, 2011) (emphasis added)
  • “I can’t solve this problem by myself. . . . We’re going to have to change the laws in Congress.” (Apr. 20, 2011)
  • “I know some here wish that I could just bypass Congress and change the law myself. But that’s not how democracy works. See, democracy is hard. But it’s right. Changing our laws means doing the hard work of changing minds and changing votes, one by one.” (Apr. 29, 2011)
  • “And sometimes when I talk to immigration advocates, they wish I could just bypass Congress and change the law myself. But that’s not how a democracy works.” (May 10, 2011)
  • “[B]elieve me, the idea of doing things on my own is very tempting. . . . But that’s not how . . . our system works. . . . That’s not how our Constitution is written.” (July 25, 2011)

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    “Administratively, we can’t ignore the law. . . . We are doing everything we can administratively. But the fact of the matter is there are laws on the books that I have to enforce.” (Sept. 28, 2011)

20. Neither congressional chamber passed the DREAM Act.

B. DACA

21. The President then asked the Department of Justice’s Office of Legal Counsel (“OLC”) whether he could effectuate the goals of the un-enacted DREAM Act by executive fiat. OLC said “yes,” with certain conditions. In particular, OLC advised the President that he could use the concept of “deferred action for childhood arrivals,” or “DACA,” to stop deporting individuals who (a) entered the United States before their 16th birthdays, and (b) had been in the United States continuously for five years. See Memorandum Opinion for the Secretary of Homeland Security, from Karl R. Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel, The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others at 18 n.8 (Nov. 19, 2014) (“OLC Memo”) (attached as Ex. B) (noting that OLC orally advised the President “[b]efore DACA was announced” in 2012). OLC further advised, however, that “it was critical that, like past policies that made deferred action available to certain classes of aliens, the DACA program require immigration officials to evaluate each application for deferred action on a case-by-case basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria.” Ibid.


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22. Notwithstanding his repeated insistence that he could not stretch his executive powers any further, the President announced his unilateral creation of the DACA program on June 15, 2012.

23. At the President’s direction, the DHS Secretary then suspended the Nation’s immigration laws for approximately 1.7 million undocumented immigrants. See Memorandum from Janet Napolitano, Secretary of the Department of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012) (“DACA Memo”) (attached as Ex. C).

24. The President and his DHS Secretary ordered federal immigration officials to extend “deferred action” to undocumented immigrants who (a) entered the United States before their 16th birthdays, and (b) had been in the United States continuously for five years.

25. Although OLC had cautioned the President that it was “critical” to DACA’s legality that the Administration evaluate every application on a case-bycase basis, the President and DHS ignored that advice. According to the latest figures available, the Administration granted deferred action to 99.5-99.8% of DACA applicants.

C. Nava-Martinez

26. The Executive Branch did not stop at dispensing with the Nation’s immigration laws. Rather, as this Court already has found, the Administration adopted a policy that encouraged international child smuggling across the Texas

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Mexico border. See Order, United States v. Nava-Martinez, No. 1:13-cr-00441, at 2

(S.D. Tex. Dec. 13, 2013) (“Nava-Martinez Order”).

27. The defendant in Nava-Martinez, an admitted human trafficker, was caught attempting to smuggle a ten-year-old El Salvadorean girl into the United States. Id. at 1.

28. The Court noted that this was “the fourth case with the same factual situation this Court has had in as many weeks.” Id. at 3. Although the human traffickers were apprehended in each case, “the DHS completed the criminal conspiracy . . . by delivering the minors to the custody of the parent.” Ibid.

29. This was done pursuant to DHS’s “apparent policy . . . of completing the criminal mission of individuals who are violating the border security of the United States.” Id. at 2. As this Court observed, “[t]his DHS policy is a dangerous course of action.” Ibid. Under the policy, “instead of enforcing the laws of the United States, the Government [takes] direct steps to help the individuals who violated it.” Id. at 3.

30. Moreover, this Court found that DHS’s policy promotes human trafficking, which in turn “help[s] fund the illegal drug cartels which are a very real danger for both citizens of this country and Mexico.” Id. at 6. The Court explained that citizens of the United States bear the economic brunt of this policy, because DHS “funds these evil ventures with their tax dollars.” Id. at 8. In addition, the policy harms the citizens of each country that suffers from the “nefarious activities of the cartels.” Ibid.

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D. The Defendants Cause a Humanitarian Crisis

31. The Defendants’ policies (including DACA and the policy described in Nava-Martinez) have had and continue to have dire consequences in the Plaintiff States. In the summer of 2014, an enormous wave of undocumented immigrants surged across the Texas-Mexico border, creating what President Obama described as a “humanitarian crisis.” Nick Miroff & Joshua Partlow, Central American Migrants Overwhelm Border Patrol Station in Texas, WASH. POST (Jun. 12, 2014).

32. As many as 90,000 undocumented children are expected to be detained this year, and as many as 140,000 may be detained in 2015. Brett LoGiurato, There’s a Staggering Humanitarian Crisis on the US Border, and It’s Only Going to Get Worse, BUS. INSIDER (Jun. 16, 2014). By comparison, only 6,000 to 7,500 children were detained between 2008 and 2011, under 14,000 were detained in 2012, and only 24,000 were detained in 2013. Alicia A. Caldwell, Border Patrol Resources Stretched Thin As Children Illegally Enter U.S. Alone, ASSOCIATED PRESS (Jun. 5, 2014).

33. Law enforcement officers reported “picking up children as young as 4 without their parents and other children with Hello Kitty backpacks, cellphones and the telephone numbers of U.S. relatives on note cards.” Miroff & Partlow, supra.

34. But the humanitarian crisis is by no means limited to unaccompanied children. There is also “an unprecedented surge of families crossing illegally into the U.S.” Cindy Carcamo, Rumors of U.S. Haven for Families Spur Rise in Illegal Immigration, L.A. TIMES (June 6, 2014). While immigration officials do not have an

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official count of such families, they acknowledge that “the numbers appear to be substantial.” Ibid.

35. This wave of immigration has been concentrated in the Rio Grande Valley of South Texas. Miroff & Partlow, supra. “Every day, hundreds of Central American migrants, in groups as large as 250 people, are wading across the muddy Rio Grande.” Ibid.

36. The crisis has imposed enormous law enforcement costs on the Plaintiff States. For example, the Texas Department of Public Safety estimated that it was spending $1.3 million a week on troopers and resources to deal with the immigration surge; in addition, Governor Perry deployed 1,000 National Guard troops to the border at a cost of $38 million.

37. This crisis was caused by the immigration policies of the federal government, including the policy that this Court has already held to be unlawful. As Defendant Vitiello explained in his May 30th memorandum, “[i]f the U.S. government fails to deliver adequate consequences to deter aliens from attempting to illegally enter the U.S., the result will be an even greater increase in the rate of recidivism and first-time illicit entries.” And the Obama Administration acknowledges that there is a “growing perception minors are crossing the border because they feel they will not be deported by the administration.” LoGiurato, supra. Indeed, a research report commissioned by DHS revealed that “[w]ord had spread in Central America about a ‘lack of consequences’ for illegal entry” and that

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“[s]mugglers were exploiting the system.” Susan Carroll, Report Warned of Child Migrant Crisis, HOUSTON CHRON. (Jun. 17, 2014).

38. The President himself predicted this outcome. On July 1, 2010, he explained that it would be “both unwise and unfair” to “ignore the laws on the books and put an end to deportation” because it “would suggest to those thinking about coming here illegally that there will be no repercussion for such a decision.” That in turn “could lead to a surge in more illegal immigration.” As the President concluded, “no matter how decent they are, no matter their reasons, the 11 million who broke these laws should be held accountable.”

39. The Defendants, however, have contributed to the surge of illegal immigration by refusing to enforce the laws on the books. On average, only 1,600 unaccompanied children are removed each year; in 2013, there were over 20,000 detentions of unaccompanied children from Guatemala, Honduras, and El Salvador, but only 496 unaccompanied children from those countries were repatriated. Carroll, supra. And the total number of undocumented children deported by the Obama Administration in 2013 was only 1,669 — an 80 percent reduction from 2008. Brian Bennett, Deportation Data Won’t Dispel Rumors Drawing Migrant Minors to U.S., L.A. TIMES (July 5, 2014).

40. Similarly, adults with children who are detained at the border are routinely released and allowed to travel within the United States. Carcamo, supra. And while they may be instructed to show up for a follow-up appointment, “ICE officials said they couldn’t guarantee that they would pursue all cases in which

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immigrants do not show up for follow-up appointments.” Ibid. Tellingly, the immigrants arrested for illegally entering the U.S. refer to ICE’s Notice to Appear documents as “permisos,” or permits. Byron York, On Immigrant Surge, White House Story Falls Apart, WASH. EXAMINER (Jun. 16, 2014).

41. Unsurprisingly, the undocumented immigrants crossing the border are motivated primarily by the belief that they will not be deported. The federal government’s own analysis demonstrates as much. When Border Patrol agents recently questioned 230 undocumented immigrants about why they came, “the results showed overwhelmingly that the immigrants, including those classified as . . . unaccompanied children, were motivated by the belief that they would be allowed to stay in the United States.” Ibid.

42. Multiple reports indicate that undocumented immigrants are counting on federal officials for help in reuniting with their friends or family in the U.S. Hundreds of Central American migrants “turn[] themselves in to the Border Patrol” on a daily basis. Miroff & Partlow, supra. One undocumented immigrant stated that she and her group “had looked forward to being caught . . . at one point even waving down federal helicopters . . . because of the welcoming treatment they had assumed they would receive.” Carcamo, supra. Another planned to surrender to Border Patrol because she had heard “that the Americans are helping Hondurans right now,” especially women and children. Miroff & Partlow, supra. All of the 230 undocumented immigrants interviewed by Border Patrol agents for their recent

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report “stated that they had family members or, to a lesser extent, friends already living in the U.S.” York, supra.

43. And the Defendants have conceded that their failure to enforce the federal immigration laws has increased the flow of illegal immigration across the Texas-Mexico border. See Vitiello Memorandum. The effects of that failure have caused acute crises in the Plaintiff States.

E. The President “Change[s] the Law”

44. Between his 2012 DACA announcement and the midterm elections in November 2014, the President repeatedly acknowledged that his non-enforcement efforts already had reached the outer limit of his administrative powers, and that any further transformation of the immigration system would have to be accomplished by legislation. He said, for instance:

  • “[A]s the head of the executive branch, there’s a limit to what I can do. . . . [U]ntil we have a law in place that provides a pathway for legalization and/or citizenship for the folks in question, we’re going to continue to be bound by the law.” (Sept. 20, 2012)
  • “We are a nation of immigrants. . . . But we’re also a nation of laws. So what I’ve said is, we need to fix a broken immigration system. And I’ve done everything that I can on my own.” (Oct. 16, 2012)
  • In response to a question about the possibility of a moratorium on deportations for non-criminals: “I’m not a king. I am the head of the

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executive branch of government. I’m required to follow the law.” (Jan. 30, 2013)
  • In response to the question whether he could do for “an undocumented mother of three” what he did for DACA recipients: “I’m not a king. . . . [W]e can’t simply ignore the law. When it comes to the dreamers we were able to identify that group. . . . But to sort through all the possible cases of everybody who might have a sympathetic story to tell is very difficult to do. This is why we need comprehensive immigration reform. . . . [I]f this was an issue that I could do unilaterally I would have done it a long time ago. . . . The way our system works is Congress has to pass legislation. I then get an opportunity to sign and implement it.” (Jan. 30, 2013)
  • “This is something I’ve struggled with throughout my presidency. The problem is that you know I’m the president of the United States, I’m not the emperor of the United States. . . . And what that means is that we have certain obligations to enforce the laws that are in place. . . . [W]e’ve kind of stretched our administrative flexibility as much as we can.” (Feb. 14, 2013)
  • “I think that it’s very important for us to recognize that the way to solve this problem has to be legislative. . . . And we’ve been able to provide help through deferred action for young people and students. . . . But this is a problem that needs to be fixed legislatively.” (July 16, 2013)

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  • “[M]y job in the executive branch is supposed to be to carry out the laws that are passed. Congress has said ‘here is the law’ when it comes to those who are undocumented, and they’ve allocated a whole bunch of money for enforcement. . . . What we can do is then carve out the DREAM Act, saying young people who have basically grown up here are Americans that we should welcome. . . . But if we start broadening that, then essentially I would be ignoring the law in a way that I think would be very difficult to defend legally. So, that’s not an option.” (Sept. 17, 2013) (emphasis added)
  • “[I]f in fact I could solve all these problems without passing laws in Congress, then I would do so. But we’re also a nation of laws. That’s part of our tradition. And so the easy way out is to try to yell and pretend like I can do something by violating our laws. And what I’m proposing is the harder path, which is to use our democratic processes to achieve the same goal.” (Nov. 25, 2013)
  • “[W]hat I’ve said in the past remains true, which is until Congress passes a new law, then I am constrained in terms of what I am able to do. What I’ve done is to use my prosecutorial discretion. . . . What we’ve said is focus on folks who are engaged in criminal activity, focus on people who engaged in gang activity. Do not focus on young people, who we’re calling DREAMers. . . . That already stretched my administrative capacity very far. But I was confident that that was the right thing to do. But at a

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certain point the reason that these deportations are taking place is, Congress said, ‘you have to enforce these laws.’ They fund the hiring of officials at the department that’s charged with enforcing. And I cannot ignore those laws any more than I could ignore, you know, any of the other laws that are on the books.” (Mar. 6, 2014) (emphasis added)

45. Accordingly, the President repeatedly called on Congress to pass an immigration reform bill. On June 27, 2013, the Senate passed a bill that, among other things, would have created a pathway to citizenship for undocumented immigrants. See Border Security, Economic Opportunity, & Immigration Modernization Act, S. 744 (113th Cong.) (2013). The House, on the other hand, did not pass similar legislation.

46. Before the midterm elections in November 2014, Democrats in the Senate urged the President not to act unilaterally because it “could be so politically damaging in their states that it would destroy their chances to hold control of the Senate.” Michael D. Shear & Julia Preston, Obama Pushed ‘Fullest Extent’ of His Powers on Immigration Plan, N.Y. TIMES (Nov. 28, 2014). The President honored that request.

47. On November 20, 2014, the President announced that he would unilaterally create legal protections for approximately 4 million undocumented immigrants. Under the President’s plan, the undocumented parents of U.S. citizens and legal permanent residents would receive deferred action status, as well as work permits and tolling of their unlawful presence in the United States. The President

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also expanded DACA to hundreds of thousands of additional undocumented immigrants.

48. The President candidly admitted that his plan was unilateral legislation: “What you’re not paying attention to is, I just took an action to change the law.”

49. The President further admitted that he was changing the law because Congress chose not to: “[W]hen members of Congress question my authority to make our immigration system work better, I have a simple answer: Pass a bill. . . . And the day I sign that bill into law, the actions I take will no longer be necessary.”

50. The President also made clear that he was “offer[ing] the following deal”: “[I]f you’ve taken responsibility, you’ve registered, undergone a background check, you’re paying taxes, you’ve been here for five years, you’ve got roots in the community — you’re not going to be deported. . . . If you meet the criteria, you can come out of the shadows, you can get right with the law.”

F. The DHS Directive

51. The President’s new policies were effectuated through Defendant Johnson’s DHS Directive. The DHS Directive closely resembled, and purported to “supplement[] and amend[],” the DACA Memo. See Exs. A & C.

52. In particular, Johnson instructed USCIS “to expand DACA as follows:” by “[r]emov[ing] the age cap” that had previously applied, by “[e]xtend[ing] DACA renewal and work authorization to three-years [sic]” from the previous two, and by “[a]djust[ing] the date-of-entry requirement” from June 15, 2007, to January 1, 2010. DHS Directive at 3-4.

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53. Johnson also “direct[ed] USCIS to establish a process, similar to DACA” for extending deferred action to the parents of citizens or lawful permanent residents. Id. at 4. In addition, the beneficiaries of deferred action are eligible to apply for federal work authorization.

54. The DHS Directive sets out a series of explicit criteria for who will be eligible for this expansion of deferred action. It requires applicants to “file the requisite applications for deferred action” and “submit biometrics for USCIS to conduct background checks.” Ibid. USCIS is instructed to “begin accepting applications from eligible applicants no later than one hundred and eighty (180) days” from the date of the Directive. Id. at 5. Moreover, USCIS, ICE, and CBP are directed to consider the new deferred action criteria “for all individuals [they] encounter[],” including individuals in their custody, and individuals whose removal is pending. Ibid.

55. The Defendants have made clear that the DHS Directive will operate like the DACA program that came before it — namely, as an entitlement to relief for virtually every applicant who meets DHS’s eligibility criteria. That is evident from the President’s statement that the DHS Directive provides a “deal” to ensure that eligible applicants “will not be deported”; from the DHS Directive itself, which creates an application process and eligibility criteria in mandatory terms (like “shall” and “must”); and from the 99.5-99.8% acceptance rate for DACA applicants.

56. The purported legal justification for the DHS Directive is contained in the OLC Memo. See Ex. B. In relevant part, the memo analyzed two DHS

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proposals. The first proposal, which the Administration adopted, was the extension of deferred action status to parents of U.S. citizens and lawful permanent residents. The second proposal, which the Administration has not yet adopted, was the extension of deferred action status to parents of DACA recipients. OLC concluded that the first proposal would be a lawful exercise of enforcement discretion, but the second would not.

57. The OLC Memo acknowledged that there are three important differences between the proposed programs and exercises of enforcement discretion. Id. at 20-21. First, deferred action is not merely a “decision not to prosecute an individual for past unlawful conduct”; instead, it is “a decision to openly tolerate an undocumented alien’s continued presence in the United States.” Id. at 20. Second, deferred action carries legal benefits beyond nonenforcement, such as the right to seek employment authorization. Ibid. Third, class-based deferred action programs, like the ones at issue here, “do not merely enable individual immigration officials to select deserving beneficiaries,” but instead “set forth certain threshold eligibility criteria and then invite individuals who satisfy these criteria to apply for deferred action status.” Ibid. In spite of all this, OLC concluded that the programs could potentially constitute exercises of enforcement discretion.

58. OLC then considered whether the proposals would be lawful under Heckler v. Chaney, 470 U.S. 821 (1985), a seminal enforcement-discretion case. OLC acknowledged that Chaney imposes four limitations on enforcement

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discretion. First, enforcement decisions must rely on factors that are within the agency’s expertise; second, the executive cannot effectively rewrite the laws under the guise of enforcement discretion; third, the executive cannot adopt a general policy that amounts to an abdication of its statutory responsibilities; and finally, enforcement discretion generally requires case-by-case decisionmaking. OLC Memo at 6-7.

59. OLC concluded that the first DHS proposal, which concerned the parents of citizens and legal permanent residents, met this test. Id. at 26-31. OLC based that conclusion, in part, on much smaller and more targeted deferred action programs that previous Congresses approved. In particular, OLC found probative that Congress previously approved deferred action for victims of violence and trafficking, family members of U.S. citizens killed in combat, and family members of individuals killed in the September 11 attacks. Id. at 29-30. In OLC’s view, those previous congressional approvals legalized DHS’s unilateral effort to create the single largest deferred action program in our Nation’s history, permitting 4 million undocumented immigrants to remain in the country.

60. OLC reached the opposite conclusion with respect to the second DHS proposal, which concerned deferred action for parents of DACA recipients. Although OLC acknowledged that the two proposals had significant similarities, it nevertheless rejected the second proposal as unlawful because it was not “consistent with the congressional policies and priorities embodied in the immigration laws.” Id. at 33.

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G. The DHS Directive Harms Plaintiffs

61. The DHS Directive will substantially increase the number of undocumented immigrants in the Plaintiff States. At the most basic level, the Directive is a promise to openly tolerate entire classes of undocumented immigrants. In addition, the Directive offers affirmative legal inducements to stay, such as work authorization and the tolling of unlawful presence. White House officials also have stated that the beneficiaries of deferred action are eligible for Social Security and Medicare. The removal of the deportation threat, combined with the incentives to stay, will make remaining in the United States far more attractive for the affected classes of undocumented immigrants.

62. Moreover, the DHS Directive is certain to trigger a new wave of undocumented immigration. As explained above, DACA led directly to a flood of immigration across the Texas-Mexico border and a “humanitarian crisis” in Texas. The federal government itself recognized that its lax attitude toward the immigration laws caused this wave. See Vitiello Memorandum. The DHS Directive is a much larger step than DACA, and it will trigger a larger response.

63. The DHS Directive will increase human trafficking in the Plaintiff States. Such trafficking is largely controlled by the Mexican drug cartels, which are the most significant organized crime threat to the State of Texas. See Texas Department of Public Safety, Texas Public Safety Threat Overview at 2, 23 (Feb. 2013). By boosting undocumented immigration, the DHS Directive will bolster the business of the cartels and greatly exacerbate the risks and dangers imposed on

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Plaintiffs by organized crime. See Nava-Martinez Order at 6 (explaining that human trafficking “help[s] fund the illegal drug cartels which are a very real danger for both citizens of this country and Mexico”).

64. The Plaintiff States will be forced to expend substantial resources on law enforcement, healthcare, and education. Some of these expenditures are required or coerced by federal law. For instance, the Supreme Court has held that States are constitutionally obligated to provide free education to children of undocumented immigrants. Plyler v. Doe, 457 U.S. 202 (1982). Similarly, both Medicare and Medicaid require provision of emergency services, regardless of documented immigration status, as a condition of participation. See 42 U.S.C. § 1395dd; 42 C.F.R. § 440.225.

65. Other expenditures are required by state law. For example, Texas law requires local governments to provide healthcare for the indigent. See Indigent Health Care and Treatment Act, TEX. HEALTH & SAFETY CODE §§ 61.001 et seq. In FY2014, Texas counties reported over $23 million in indigent health care expenditures. Texas law also requires nonprofit hospitals to provide unreimbursed care for the indigent as a condition of maintaining their nonprofit status. See TEX. HEALTH & SAFETY CODE § 311.043.

66. Other costs follow specifically from the extension of deferred action status. For instance, federal work authorization functions as a precondition for certain professional licenses in the Plaintiff States. See, e.g., 16 TEX. ADMIN. CODE § 33.10 (requiring applicants for an alcoholic beverage license to be “legally

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authorized to work in the United States”); 37 TEX. ADMIN. CODE § 35.21 (requiring employees of private security companies to submit application, including a copy of a current work authorization card); TEX. RULES GOVERN. BAR ADM’N, R. II(a)(5)(d) (making individuals who are “authorized to work lawfully in the United States” eligible to apply for admission as licensed attorneys).

67. Texas and other Plaintiff States also rely on Defendants’ evidence of lawful presence for certain benefits under their respective state laws. See, e.g., TEX. LAB. CODE § 207.043(a)(2) (extending unemployment benefits to individuals who were “lawfully present for purposes of performing the services”); TEX. FAM. CODE § 2.005(b)(4) (allowing an “Employment Authorization Card” to be used as proof of identity for the purposes of a marriage license application).

68. By authorizing a large class of undocumented immigrants to work in the United States, the DHS Directive will expose Texas to the cost of processing and issuing additional licenses and benefits. Moreover, it will cause Texas to issue such licenses and benefits to individuals who are not legally authorized to be in the country (or to take on the burdensome task of attempting to figure out which undocumented immigrants have bona fide deferred action status and which ones benefited from the unlawful DHS Directive).

69. If the Plaintiff States had the sovereign power to redress these problems, they would. See Massachusetts v. EPA, 549 U.S. 497, 519 (2007) (citing Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982)). But the Supreme Court has held that authority over immigration is largely lodged

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in the federal government. See, e.g., Arizona v. United States, 132 S. Ct. 2492 (2012). Accordingly, litigation against the federal government is the only way for the States to vindicate their interests and those of their citizens.

IV. CLAIMS FOR RELIEF

COUNT ONE

Violation Of The Take Care Clause, Art. II, § 3, Cl. 5

70. The allegations in paragraphs 1-69 are reincorporated herein.

71. The DHS Directive violates the President’s constitutional duty to “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, § 3, cl. 5.

72. The Supreme Court has made clear that the Take Care Clause is judicially enforceable against presidential invocations of the dispensing power. See, e.g., Kendall v. United States, 37 U.S. (12 Pet.) 524, 612-13 (1838); Angelus Milling Co. v. Comm’r of Internal Revenue, 325 U.S. 293, 296 (1945).

73. The Take Care Clause limits the President’s power and ensures that he will faithfully execute Congress’s laws — not rewrite them under the guise of executive “discretion.”

74. In this case, the President admitted that he “took an action to change the law.” The Defendants could hardly contend otherwise because a deferred action program with an acceptance rate that rounds to 100% is a de facto entitlement — one that even the President and OLC previously admitted would require a change to the law.

75. At least for the 4 million people who will benefit from the DHS Directive, Congress has taken several steps to curtail the reunification of

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undocumented immigrants and their documented family members. The undocumented parent of a U.S. citizen or legal permanent resident generally can stay in the United States only by (i) waiting until their child turns 21, (ii) leaving the country, (iii) waiting 10 more years, and then (iv) obtaining a family-preference visa from a U.S. consulate abroad. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1182(a)(9)(B)(i)(II), 1201(a), 1255. The Defendants cannot faithfully execute the law by directly contravening Congress’s objectives.

76. Accordingly, the Defendants’ actions violate the Take Care Clause.

COUNT TWO

Violation of the APA, 5 U.S.C. § 553

77. The allegations in paragraphs 1-76 are reincorporated herein.

78. The APA requires this Court to hold unlawful and set aside any agency action taken “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).

79. DHS is an “agency” under the APA. 5 U.S.C. § 551(1).

80. The DHS Directive is a “rule” under the APA. 5 U.S.C. § 551(4).

81. With exceptions that are not applicable here, agency rules must go through notice-and-comment rulemaking. 5 U.S.C. § 553.

82. The Defendants promulgated and relied upon the DHS Directive without authority and without notice-and-comment rulemaking. It is therefore unlawful.

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COUNT THREE

Violation of the APA, 5 U.S.C. § 706

83. The allegations in paragraphs 1-82 are reincorporated herein.

84. The APA requires this Court to hold unlawful and set aside any agency action that is “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2).

85. The DHS Directive purports to create legal rights for millions of undocumented immigrants. And it does so by rewriting the immigration laws and contradicting the priorities adopted by Congress. See, e.g., ¶ 75, supra.

86. As such, the DHS Directive violates the aforementioned provisions in 5 U.S.C. § 706, and it is therefore unlawful.

V. DEMAND FOR JUDGMENT

Plaintiffs respectfully request the following relief from the Court:

  1. A declaratory judgment and injunction that the Defendants’ deferred action program violates the Take Care Clause;
  2. A declaratory judgment that the Defendants’ deferred action program is procedurally unlawful under the APA;
  3. A declaratory judgment that the Defendants’ deferred action program is substantively unlawful under the APA; and
  4. All other relief to which the Plaintiffs may show themselves to be entitled.

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LUTHER STRANGE
Attorney General of Alabama

SAMUEL S. OLENS
Attorney General of Georgia

LAWRENCE G. WASDEN
Attorney General of Idaho

JOSEPH C. CHAPELLE
Counsel for the State of Indiana

DEREK SCHMIDT
Attorney General of Kansas

JAMES D. “BUDDY” CALDWELL
Attorney General of Louisiana

TIMOTHY C. FOX
Attorney General of Montana

JON C. BRUNING
Attorney General of Nebraska

ALAN WILSON
Attorney General of South Carolina

MARTY J. JACKLEY
Attorney General of South Dakota

SEAN D. REYES
Attorney General of Utah

PATRICK MORRISEY
Attorney General of West Virginia

J.B. VAN HOLLEN
Attorney General of Wisconsin

Respectfully submitted.

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

ANDREW S. OLDHAM
Deputy Solicitor General Attorney-in-Charge

Office of the Attorney General of Texas
P.O. Box 78711
Austin, Texas 78711-2548
512-936-1700

additional counsel on the following page

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DREW SNYDER
Counsel for the Governor of Mississippi

CARLISLE MCLEAN
Counsel for the Governor of Maine

ROBERT C. STEPHENS
Counsel for the Governor of North Carolina

TOM C. PERRY
CALLY YOUNGER
Counsel for the Governor of Idaho

Dated: December 3, 2014

30

Open PDF file to see all pages

AUSTIN, Texas (AP) — “Texas says two more states have joined its coalition suing over the Obama administration's executive action on immigration, meaning 26 states are now part of the case”. http://www.mynews3.com/content/news/story/Immigration-Lawsuit-Nevada-executive-action-Obama/uYFTfbU4xEan81dOt1uIWQ.cspx

UNITED STATES HOUSE OF REPRESENTATIVES Case No. 14-cv-01967

Link to PDF file or read below:

Respectfully submitted,
/s/ Jonathan Turley
JONATHAN TURLEY
Link
DC Bar No. 417674
2000 H Street, N.W.
Washington, D.C. 20052
(202) 285-8163
jturley@law.gwu.edu

The following is a copy of the PDF file:
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
UNITED STATES HOUSE OF REPRESENTATIVES, )
United States Capitol )
Washington, D.C. 20515, )
)
Plaintiff, )
)
v. ) Case No. 14-cv-01967
)
SYLVIA MATHEWS BURWELL, )
in her official capacity as Secretary of the United States )
Department of Health and Human Services, )
200 Independence Avenue, S.W. )
Washington, D.C. 20201, )
)
UNITED STATES DEPARTMENT OF HEALTH )
AND HUMAN SERVICES, )
200 Independence Avenue, S.W. )
Washington, D.C. 20201, )
)
JACOB J. LEW, )
in his official capacity as Secretary of the United States )
Department of the Treasury, )
1500 Pennsylvania Avenue, N.W. )
Washington, D.C. 20220, and )
)
UNITED STATES DEPARTMENT OF )
THE TREASURY, )
1500 Pennsylvania Avenue, N.W. )
Washington, D.C. 20220, )
)
Defendants. )
)
COMPLAINT
PRELIMINARY STATEMENT
This case arises out of unconstitutional and unlawful actions taken by the Administration
of President Barack Obama (the “Administration”) in respect of the Patient Protection and
Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (“ACA”). In challenging these
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2
actions, this case addresses fundamental issues regarding the limits of Executive power under our
constitutional form of government, and the continued viability of the separation of powers
doctrine upon which “the whole American fabric has been erected.” Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 176 (1803). This lawsuit thus raises issues of exceptional importance, not only
to plaintiff United States House of Representatives, but also to the entire nation.
One fundamental tenet of our divided-power system of government is that all legislative
power is vested in Congress, and Congress alone. U.S. Const. art. I, § 1 (“All legislative Powers
herein granted shall be vested in a Congress of the United States, which shall consist of a Senate
and House of Representatives.”). This legislative power may be exercised only through the
“single, finely wrought, and exhaustively considered process,” Clinton v. City of New York, 524
U.S. 417, 439-40 (1998), that is familiar to us all, namely, the passage of identical bills by the
House of Representatives and the Senate (bicameralism), followed by delivery to the President
for his signature or veto (presentment). U.S. Const. art. I, § 7, cl. 2 (“Every Bill which shall have
passed the House of Representatives and the Senate, shall, before it become a Law, be presented
to the President of the United States . . . .”). Beyond the President’s role in the presentment
process, the Constitution does not permit the Executive Branch to enact laws, or to amend or
repeal duly enacted laws, including by adopting rules or taking other unilateral actions that have
such an effect.
Equally fundamental is the constitutional ban on the expenditure of any public funds by
any branch of the federal government, including the Executive Branch, absent enactment of a
law appropriating such funds: “No Money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law . . . .” U.S. Const. art. I, § 9, cl. 7. Congress thus
has a necessary role – indeed, the defining role – in our system over any expenditure of public
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funds by virtue of the fact that it first must pass identical appropriations bills in the House of
Representatives and the Senate – and such bills then must become law – before any public funds
may be expended, and then only expended as directed in such duly enacted appropriations laws.
The Executive Branch has no authority to expend public funds that have not been thus
appropriated.
The Administration has made no secret of its willingness, notwithstanding Article I of the
Constitution, to act without Congress when Congress declines to enact laws that the
Administration desires. Not only is there no license for the Administration to “go it alone” in our
system, but such unilateral action is directly barred by Article I. Despite such fundamental
constitutional limitations, the Administration repeatedly has abused its power by using executive
action as a substitute for legislation. This suit challenges two such abuses:
A. Defendants Sylvia Mathews Burwell, Secretary of the United States Department of
Health and Human Services, Jacob J. Lew, Secretary of the United States Department of the
Treasury, and the respective Executive Branch departments they head, have violated, and are
continuing to violate, the Constitution by directing, paying, and continuing to pay, public funds
to certain insurance companies to implement a program authorized by the ACA, but for which no
funds have been appropriated. Such unconstitutional payments are estimated to exceed $3 billion
in Fiscal Year 2014, and total approximately $175 billion over the ten succeeding Fiscal Years.
Defendants’ expenditure of taxpayer funds, absent a congressional appropriation, plainly is
unconstitutional as it violates Article I of the Constitution; it also violates statutory law, in
particular, 31 U.S.C. § 1324, the ACA, and the Administrative Procedure Act, 5 U.S.C. §§ 500 et
seq.
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B. Defendants Lew and the United States Department of the Treasury also have violated
the Constitution by issuing a regulation that effectively amends ACA provisions that impose
mandates on certain employers and establish a deadline by which such employers must comply
with those mandates. These unconstitutional actions are estimated to cost federal taxpayers at
least $12 billion.
The House now brings this civil action for declaratory and injunctive relief to halt these
unconstitutional and unlawful actions which usurp the House’s Article I legislative powers.
PARTIES
1. Plaintiff United States House of Representatives (“House”) is the legislative body
constituted by Article I, section 2 of the United States Constitution.
2. Defendant Sylvia Mathews Burwell is, and has been since June 9, 2014, the
Secretary of the United States Department of Health and Human Services. As Secretary,
defendant Burwell is responsible for all actions taken by the department she heads.
3. Defendant United States Department of Health and Human Services (“HHS”) is
an agency in the Executive Branch of the federal government.
4. Defendant Jacob J. Lew is, and has been since February 28, 2013, the Secretary of
the United States Department of the Treasury. As Secretary, defendant Lew is responsible for all
actions taken by the department he heads.
5. Defendant United States Department of the Treasury (“Treasury Department”) is
an agency in the Executive Branch of the federal government.
JURISDICTION AND VENUE
6. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1345. This case
arises under the Constitution and the laws of the United States, and is brought by the United
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States, i.e., the United States House of Representatives, which is a component of the United
States government.
7. On July 30, 2014, the United States House of Representatives adopted, by a vote
of 225-201, H. Res. 676, which provides that
the Speaker is authorized to initiate or intervene in one or more
civil actions on behalf of the House of Representatives in a Federal
court of competent jurisdiction to seek any appropriate relief
regarding the failure of the President, the head of any department
or agency, or any other officer or employee of the executive
branch, to act in a manner consistent with that official’s duties
under the Constitution and laws of the United States with respect
to implementation of any provision of the Patient Protection and
Affordable Care Act, title I or subtitle B of title II of the Health
Care and Education Reconciliation Act of 2010, including any
amendment made by such provision, or any other related provision
of law, including a failure to implement any such provision.
8. Section 3(a) of H. Res. 676 provides that “[t]he Office of the General Counsel of
the House of Representatives, at the direction of the Speaker, shall represent the House in any
civil action initiated, or in which the House intervenes, pursuant to this resolution, and may
employ the services of outside counsel and other experts for this purpose.”
9. This Court has authority to issue a declaratory judgment, and to order injunctive
and other relief that is just and proper, pursuant to 28 U.S.C. §§ 2201 and 2202, and Rules 57
and 65 of the Federal Rules of Civil Procedure.
10. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) and (e), and
5 U.S.C. § 703.
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ALLEGATIONS
The Constitution Vests the Congress, Not the Executive, with the Authority to Legislate,
Including the Authority to Legislate to Appropriate Public Funds
11. Article I, section 1 of the Constitution provides that “All legislative Powers herein
granted shall be vested in a Congress of the United States, which shall consist of a Senate and
House of Representatives.”
12. Article I, section 7, clause 2 of the Constitution provides that “Every Bill which
shall have passed the House of Representatives and the Senate, shall, before it become a Law, be
presented to the President of the United States; If he approve he shall sign it . . . .”
13. Article I, section 9, clause 7 of the Constitution provides that “No Money shall be
drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular
Statement and Account of the Receipts and Expenditures of all public Money shall be published
from time to time.”
Authorizing Legislation Is Distinct from Appropriations Legislation
14. “Authorization” legislation establishes, continues, or modifies an agency,
program, or government function. Authorization laws alone, however, do not provide the legal
authority required by Article I, section 9, clause 7 of the Constitution to expend public funds.
Only an “appropriations” law can do that.
15. An “appropriations” law – and only an appropriations law – permits the
expenditure of public funds. That is, appropriations legislation is the sole mechanism by which
Congress empowers federal agencies to expend public funds in compliance with Article I,
section 9, clause 7 of the Constitution.
16. In keeping with its broad, constitutional authority, Congress may choose not to
appropriate funds for an authorized program, or Congress may appropriate a different amount of
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money than the amount (if any) provided for in an authorization. Congress also may limit the
purposes for which appropriated funds may be used. Only a validly enacted appropriations law –
not an underlying authorization – permits a federal agency to expend public funds. Although
Congress may combine an authorization and an appropriation in a single bill, it may (and most
often does) enact them separately.
17. Appropriations laws generally take one of two forms: (a) temporary
appropriations, which typically are enacted on an annual basis,1 and (b) permanent
appropriations, which are few in number and which (i) remain in effect until Congress repeals or
modifies them, and (ii) permit federal agencies to expend public funds without the need for
passage of a temporary appropriations bill in the current Congress. For an appropriation to be
considered permanent, the law must clearly and expressly so provide.2
18. By providing funding to the Executive Branch through temporary (typically
annual) appropriations, Congress ensures Executive Branch accountability by forcing the
Executive Branch to return to Congress each year to seek continued funding for authorized
agencies, programs, and government functions. This process provides Congress the opportunity
1 See, e.g., Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, § 5, 128 Stat. 5, 7 (2014) (“The
following sums in this Act are appropriated, out of any money in the Treasury not otherwise appropriated,
for the fiscal year ending September 30, 2014.”); id. div. B, tit. II (“For expenses necessary for the
administration of the Department of Justice, $110,000,000 . . . .”).
2 Examples of permanent appropriations laws are 31 U.S.C. § 1304(a) (payment of certain judgments:
“Necessary amounts are appropriated to pay final judgments, awards, compromise settlements, and
interest and costs . . . when [certain specified conditions are met]”); 31 U.S.C. § 1305(2) (payment of
interest on national debt: “Necessary amounts are appropriated . . . to pay interest on the public debt
under laws authorizing payment.”); 31 U.S.C. § 1324 (payments for refunds due under Internal Revenue
Code: “Necessary amounts are appropriated to the Secretary of the Treasury for refunding internal
revenue collections as provided by law . . . .”); 42 U.S.C. § 401(a) (payments to Social Security
recipients: “There is hereby appropriated to the Federal Old-Age and Survivors Insurance Trust Fund for
the fiscal year ending June 30, 1941, and for each fiscal year thereafter, [certain specified tax
revenues].”); and 42 U.S.C. § 1395i(a) (payments for Medicare benefits: “There are hereby appropriated
to the [Federal Hospital Insurance] Trust Fund for the fiscal year ending June 30, 1966, and for each fiscal
year thereafter, [certain specified tax revenues].”).
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to determine a suitable amount of funding after careful consideration of, among other things,
needs and effectiveness.
19. Temporary appropriations also reinforce and further Congress’ constitutional
responsibility to oversee the Executive Branch, and thereby act as a check upon the Executive
Branch, as the Framers intended.
20. Without an explicit appropriation of funds by Congress, legal requirements
imposed on Administration officials are merely unfunded authorizations. In such cases, the
Administration is constitutionally barred from expending public funds on the agency, program,
or government function which has been authorized.
21. The Administration is constitutionally barred from converting an authorization
that requires a temporary appropriation into a permanent appropriation. Indeed, such conversion
effectively would negate the defining “power of the purse” given to Congress by the Framers.
The Patient Protection and Affordable Care Act – the ACA – Becomes Law
22. On December 24, 2009, H.R. 3560, 111th Cong. (2009), as amended and retitled
“Patient Protection and Affordable Care Act,” passed the Senate by a vote of 60-39.
23. On March 21, 2010, the House of Representatives agreed to the Senate
amendments by a vote of 219-212.
24. On March 23, 2010, H.R. 3560, as agreed to by both the Senate and the House of
Representatives, was signed into law by President Obama. See ACA, Pub. L. No. 111-148, 124
Stat. 119 (2010).
The Administration Expends Public Funds That Congress Has Not Appropriated
25. Section 1402(a)(2) of the ACA requires all health insurance issuers that offer a
qualified health plan through the ACA (“Insurers”) to provide reduced deductibles, co-pays, and
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co-insurance levels to qualified policyholders enrolled in such plans (“Beneficiaries”). These
reductions are referred to in the ACA as “Cost-Sharing Reductions.”
26. ACA Cost-Sharing Reductions are required by law and are not contingent upon
the receipt by Insurers of any offsetting payments from the government. Rather, Insurers – who
benefit enormously by participating in the ACA – are statutorily required to provide Cost-
Sharing Reductions to Beneficiaries as a condition of being permitted to offer insurance policies
through an ACA health insurance marketplace exchange.
27. The ACA also establishes a program by which the government is authorized to
make direct payments to Insurers to offset costs that Insurers incur in providing Cost-Sharing
Reductions to Beneficiaries (referred to herein as the “Section 1402 Offset Program”).3
28. Congress has not, and never has, appropriated any funds (whether through
temporary appropriations or permanent appropriations) to make any Section 1402 Offset
Program payments to Insurers.
29. In contrast, Congress has appropriated funds for section 1401 of the ACA. That
provision authorizes refundable tax credits to be paid for qualified individuals to reduce the cost
of their health insurance premiums (referred to herein as the “Section 1401 Refundable Tax
Credit Program”) through the standing permanent appropriation for refunds due under the
Internal Revenue Code (“IRC”), 31 U.S.C. § 1324. The Section 1402 Offset Program, on the
other hand, is not funded through this or any other appropriation.4
3 Section 1412(c)(3) of the ACA establishes the mechanism by which any Section 1402 Offset Program
payments would be made.
4 Compare ACA §§ 1401(a), 1401(d)(1), 1412(c)(2) (payment of tax credits under Section 1401
Refundable Tax Credit Program to be made through IRC), with ACA §§ 1402, 1412(c)(3) (providing no
authority for Section 1402 Offset Program payments to Insurers to be funded through IRC).
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30. The Congressional Budget Office (“CBO”) estimates that the Administration’s
Section 1402 Offset Program payments to Insurers would total approximately $178 billion for
fiscal years 2014 through 2024.5
31. The Administration repeatedly has acknowledged that it requires temporary
appropriations to fund Section 1402 Offset Program payments to Insurers. For example, in its
Fiscal Year 2014 budget submission to Congress – and in particular, in the section of its Fiscal
Year 2014 budget submission dealing with the Centers for Medicare and Medicaid Services
(“CMS”), an agency within defendant HHS – the Administration specifically requested, “[f]or
carrying out . . . sections 1402 and 1412 of the [ACA], such sums as necessary,” and, “[f]or
carrying out . . . such sections in the first quarter of fiscal year 2015[,] . . . $1,420,000,000.”6
32. Similarly, defendant HHS, in its underlying budget justification for Fiscal Year
2014, expressly recognized that it required an annual (temporary) appropriation for CMS’ “five
annually-appropriated accounts,” including, in particular, a new, “annually-appropriated”
account for the 1402 Offset Program payments beginning in FY 2014, the “Reduced Cost
Sharing for Individuals Enrolled in Qualified Health Plans (Cost Sharing Reductions)” account.7
CMS said it needed an “annual” appropriation for Section 1402 Offset Program payments in the
amount of “$4.0 billion in the first year of [ACA Exchange] operations . . . [and] a $1.4 billion
advance appropriation for the first quarter of FY 2015 . . . to permit CMS to reimburse [certain
5 See CBO, Insurance Coverage Provisions of the Affordable Care Act – CBO’s April 2014 Baseline at
Table 3 (Apr. 14, 2014), available at
http://www.cbo.gov/sites/default/files/cbofiles/attachments/43900-
2014-04-ACAtables2.pdf.
6 Office of Mgmt. & Budget (“OMB”), Fiscal Year 2014 Budget of the U.S. Government, App. at 448
(Apr. 10, 2013), available at
http://www.whitehouse.gov/sites/default/files/omb/budget/fy2014/
assets/appendix.pdf.
7 See HHS, Fiscal Year 2014, CMS, Justification of Estimates for Appropriations Committees (“FY 2014
CMS Justification”), at 2, 4, 7, 183-84, available at
http://www.cms.gov/about-cms/agency-information/
performancebudget/downloads/fy2014-cj-final.pdf.
Case 1:14-cv-01967 Document 1 Filed 11/21/14 Page 10 of 28
11
insurance] issuers.”8 As defendant HHS explained: “CMS requests an appropriation in order to
ensure adequate funding to make payments to issuers to cover reduced cost-sharing in FY
2014.”9
33. In other words, at the time of its Fiscal Year 2014 budget submission to Congress,
the Administration correctly recognized that Section 1402 Offset Program payments to Insurers
could not be made unless and until Congress specifically appropriated funds for that purpose.
34. Congress has not appropriated any funds for Section 1402 Offset Program
payments to Insurers for Fiscal Years 2014 or 2015.
35. Notwithstanding the lack of any congressional appropriation for Section 1402
Offset Program payments, defendants Lew and the Treasury Department, at the direction of
defendants Burwell and HHS, began making Section 1402 Offset Program payments to Insurers
in January 2014, and, upon information and belief, continues to make such payments.10 The
Office of Management and Budget (“OMB”) has reported that Section 1402 Offset Program
payments to Insurers for Fiscal Year 2014 were estimated to be $3.978 billion.11
8 FY 2014 CMS Justification, at 2, 7.
9 FY 2014 CMS Justification, at 183-84.
10 See CMS, March Marketplace Payment Processing Cycle: Enrollment & Payment Data Reporting and
Restatement at 9 (Feb. 12, 2014) (“Payments for the January payment month . . . were sent to issuers in
January.”), available at
https://www.regtap.info/uploads/library/FM_MPP_Slides_021214_5CR_
021214.pdf; see also CMS, Marketplace Payment Processing: Restatement and Payment Reporting at 7,
11 (Jan. 13, 2014) (stating that payments would begin in January 2014), available at
https://www.regtap.info/uploads/library/FM_MPP_RestatementPayRprtSlides_011314_5CR_011514.pdf.
11 See OMB, OMB Sequestration Preview Report to the President and Congress for Fiscal Year 2014 and
OMB Report to the Congress on the Joint Committee Reductions for Fiscal Year 2014, Corrected
Version, p. 23 (May 20, 2013) (“OMB Report FY 2014”), available at
http://www.whitehouse.gov/sites/
default/files/omb/assets/legislative_reports/fy14_preview_and_joint_committee_reductions_reports_0520
2013.pdf. The House does not know the actual amount that defendants have expended on Section 1402
Offset Program payments because, as discussed below, the Administration has disguised those figures.
See infra note 14.
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12
36. In its Fiscal Year 2015 budget submission, submitted to Congress in March 2014,
the Administration dramatically and conspicuously changed course. The Administration’s
request for a temporary appropriation to CMS to enable it to make Section 1402 Offset Program
payments to Insurers disappeared, and was replaced with a single line item in the Internal
Revenue Service (“IRS”) section of the budget, lumping together Section 1401 Refundable Tax
Credit Program payments – funding for which is permanently appropriated through the IRC –
with Section 1402 Offset Program payments which are not funded through the IRC.12
37. The only explanation the Administration has offered for its unilateral decision to
make Section 1402 Offset Program payments to Insurers, notwithstanding the lack of any
congressional appropriation for such payments, came from defendant Burwell in May 2014,
when she was serving as Director of OMB, in the context of Senate hearings on her nomination
to be Secretary of HHS.
38. Specifically, defendant Burwell then stated, in a letter to Senators Ted Cruz and
Michael Lee, that no payments would be made from a Treasury account established for the
purpose of making Section 1402 Offset Program payments to Insurers (account no. 009-38-
0126). (Presumably this was so because there was no money in that account since Congress had
not appropriated any funds for Section 1402 Offset Program payments.) Instead, defendant
Burwell said, Section 1402 Offset Program payments “will be paid out of the same account
12 See OMB, Fiscal Year 2015 Budget of the U.S. Government, App. at 1087 (Mar. 4, 2014), available at
http://www.whitehouse.gov/sites/default/files/omb/budget/fy2015/assets/appendix.pdf.
Case 1:14-cv-01967 Document 1 Filed 11/21/14 Page 12 of 28
13
[account no. 015-45-0949] from which the [Section 1401 Refundable Tax Credit Program
payments] are paid,” an explanation that she justified on grounds of “efficiency.”13
39. Defendant Burwell’s explanation – translated – means that defendants are using
the permanent appropriation meant to pay for tax refunds due under the IRC (31 U.S.C. § 1324)
to fund not only Section 1401 Refundable Tax Credit Program payments, but also Section 1402
Offset Program payments, even though (a) the ACA does not permit that permanent
appropriation to be used to fund Section 1402 Offset Program payments, and (b) 31 U.S.C.
§ 1324 expressly states that “[d]isbursements may be made from the appropriation made by this
section only for (1) refunds to the limit of liability of an individual tax account, and (2) refunds
due from credit provisions of the [IRC],” 31 U.S.C. § 1324(b); defendants’ direct payments to
Insurers under the Section 1402 Offset Program are neither.
40. The Constitution does not permit such a sleight of hand. Absent enactment of a
law appropriating funds for the Section 1402 Offset Program – and no such law exists –
13 Letter from Sylvia M. Burwell, Dir., OMB, to Senators Ted Cruz and Michael S. Lee, at Responses p.
4 (May 21, 2014), available at
http://www.cruz.senate.gov/files/documents/Letters/20140521_Burwell_Response.pdf. The Burwell
letter responded to a letter from Senators Cruz and Lee which inquired why the Administration had flipflopped
on the question of whether Section 1402 Offset Program payments would be subject to
mandatory sequestration rules. See Letter from Senators Ted Cruz and Michael S. Lee, to Sylvia M.
Burwell, Dir., OMB, at 2 (May 16, 2014), available at
http://www.cruz.senate.gov/files/documents/Letters/Burwell%20Letter.pdf.
The Senators’ May 16, 2014 letter, in turn, resulted from a significant discrepancy between OMB’s
sequestration reports to Congress for Fiscal Years 2014 and 2015. In particular, OMB reported for FY
2014 that Section 1402 Offset Program payments to Insurers for FY 2014 were predicted to be $3.978
billion, and that such payments were subject to mandatory sequestration in the amount of $286 million.
See OMB Report FY 2014 at App., p. 23 (referencing Treasury account no. 009-38-0126 under “Centers
for Medicare and Medicaid Services”). Ten months later, Treasury account no. 009-38-0126 disappeared
from the OMB report, with no explanation provided. See OMB, OMB Sequestration Preview Report to
the President and Congress for Fiscal Year 2015, at App., p. 6 (Mar. 10, 2014), available at
http://www.whitehouse.gov/sites/default/files/omb/assets/legislative_reports/sequestration/sequestration_
preview_report_march2014.pdf.
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14
defendants may not legally or constitutionally make Section 1402 Offset Program payments to
Insurers.14
41. Defendants’ actions injure the House by, among other things, usurping its Article
I legislative authority.
The Administration Unilaterally Amends Employer Mandate Provisions of the ACA
42. Section 1513 of the ACA amends the IRC by adding to Chapter 43 a new section
4980H. New section 4980H imposes on “applicable large employer[s]” who fail to offer to all of
their full-time employees (and their dependents) affordable health insurance coverage, as defined
in the statute, one or both of two tax penalties set forth in section 4980H(a)-(b).15 The tax
penalties are sometimes referred to as “employer shared responsibility payments.”
43. Section 1513(d) of the ACA states expressly that “[t]he amendments made by this
section shall apply to months beginning after December 31, 2013.” ACA § 1513(d) (emphasis
added).
44. Given its obvious importance to the budgetary impact of the ACA and the balance
of burdens between private and governmental sources, the selection of the December 31, 2013
14 Defendant Treasury Department is making Section 1402 Offset Program payments to Insurers from an
account entitled “Refundable Premium Assistance Tax Credit,” which refers to the account for the
Section 1401 Refundable Tax Credit Program. See OMB, SF 133 Reports on Budget Execution and
Budgetary Resources, at p. 12,085 (Department of the Treasury) (Oct. 29, 2014), available at
https://max.omb.gov/maxportal/document/SF133/Budget/attachments/703038966/705527982.pdf.
Because defendant Treasury Department is making, from one account, payments to Insurers under the
Section 1402 Offset Program and Section 1401 Refundable Tax Credit Program payments, see id. at p.
12,087, Line No. 4190, and because defendant Treasury Department has not separated out the amounts
for these two types of payments, the House and the American people do not know the actual amounts that
defendants unconstitutionally and unlawfully have expended on Section 1402 Offset Program payments
to Insurers.
15 Section 4980H(c)(4) defines “full-time employee” (“FTE”) as, “an employee who is employed on
average at least 30 hours of service per week.”
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15
date was a matter of intense debate in Congress during its consideration of the bills that became
the ACA.
45. Defendants Lew and the Treasury Department effectively and unilaterally have
amended section 1513(d) of the ACA by altering the date by which penalties will be assessed:
i. Notwithstanding the clear direction in section 1513(d) of the ACA, defendant
Treasury Department announced on July 2, 2013, that it was “extending . . .
transition relief to the employer shared responsibility payments. These payments
will not apply for 2014. Any employer shared responsibility payments will not
apply until 2015.”16
ii. Notwithstanding the clear direction in section 1513(d) of the ACA, the IRS, a
bureau of defendant Treasury Department, announced on July 9, 2013, that “no
employer shared responsibility payments will be assessed for 2014.”17
iii. Notwithstanding the clear direction in section 1513(d) of the ACA, defendant
Treasury Department, in February 2014, promulgated a regulation, the Preamble
to which states that “no assessable payment under section 4980H(a) or (b) will
apply for any calendar month during 2015 or any calendar month during the
portion of the 2015 plan year that falls in 2016” for employers who employ “on
16 Mark J. Mazur, Continuing to Implement the ACA in a Careful, Thoughtful Manner, Treasury Notes
(July 2, 2013), available at
http://www.treasury.gov/connect/blog/pages/continuing-to-implement-theaca-
in-a-careful-thoughtful-manner-.aspx.
17 IRS Notice 2013-45, 2013-31 I.R.B. 116, at 3 (July 9, 2013), available at
http://www.irs.gov/pub/irsdrop/
n-13-45.pdf.
Case 1:14-cv-01967 Document 1 Filed 11/21/14 Page 15 of 28
16
average at least 50 full-time employees (including FTEs) but fewer than 100 fulltime
employees (including FTEs) on business days during 2014.”18
46. Defendants Lew and the Treasury Department also effectively and unilaterally
have amended section 4980H of the IRC by altering the percentage of FTEs who must be offered
insurance by certain employers:
i. Notwithstanding the requirement in section 4980H of the IRC that applicable
large employers offer affordable coverage to all of their FTEs to avoid the tax
penalty imposed by section 4980H(a), the Preamble to the Treasury Rule states
that “for each calendar month during 2015 and any calendar months during the
portion of the 2015 plan year that falls in 2016, an applicable large employer
member that offers coverage to at least 70 percent (or that fails to offer to no more
than 30 percent) of its full-time employees . . . will not be subject to an assessable
payment under section 4980H(a).” Treasury Rule, pmbl. § XV.D.7.a, 79 Fed.
Reg. at 8575.
ii. Notwithstanding the requirement in section 4980H of the IRC that applicable
large employers offer affordable coverage to all of their FTEs to avoid the tax
penalties imposed by section 4980H(a)-(b), the Treasury Rule provides that
applicable large employers must offer affordable coverage to only 95% of their
FTEs in 2016 and beyond to avoid the tax penalties imposed by section 4980H(a)-
18 Shared Responsibility for Employers Regarding Health Coverage, pmbl. § XV.D.6.a.(1), 79 Fed. Reg.
8544, 8574 (Feb. 12, 2014) (to be codified at 26 C.F.R. pts. 1, 54 & 301) (“Treasury Rule”). The
Treasury Rule purports to provide similar transition relief to large employers for 2014 by referencing and
incorporating IRS Notice 2013-45. See Treasury Rule, pmbl. § XV.B, 79 Fed. Reg. at 8569 (“Notice
2013-45, issued on July 9, 2013, provides as transition relief that no assessable payments under section
4980H will apply for 2014.”).
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17
(b). Treasury Rule, pt. 54, §§ 54.4980H-4(a), 54.4980H-5(a), 79 Fed. Reg. at
8597-99.
47. No legislation has been enacted to alter (i) the deadline established by section
1513(d) of the ACA, or (ii) the ACA’s mandate in section 4980H of the IRC that applicable large
employers offer affordable coverage to all of their FTEs to avoid the tax penalties imposed by
section 4980H(a)-(b) of the IRC.
48. The ACA does not delegate to defendant Lew, to defendant Treasury Department,
or to anyone else or any other Executive Branch entity the authority to legislate such changes to
the ACA.
49. Defendants Lew’s and the Treasury Department’s alterations to the employer
mandate provisions of the ACA are estimated to cost federal taxpayers approximately $12
billion.19
50. The actions of defendants Lew and the Treasury Department injure the House by,
among other things, usurping its Article I legislative authority.
CLAIMS FOR RELIEF
COUNT I
(Section 1402 Offset Program Payments to Insurers
Violate Article I, Section 9, Clause 7 of the Constitution)
51. The House incorporates and re-alleges paragraphs 1 through 50, above, as if set
forth fully herein.
19 See Letter from Douglas W. Elmendorf, Dir., CBO, to Hon. Paul Ryan at 3 & attached tbl. (July 30,
2013), available at
https://www.cbo.gov/sites/default/files/44465-ACA.pdf. CBO’s $12 billion estimate
is likely low inasmuch as it was calculated prior to the promulgation of the Treasury Rule that further
delayed the mandate an additional year for employers with 50-99 FTEs. See Treasury Rule, pmbl. §
XV.D.6.a(1), 79 Fed. Reg. at 8574.
Case 1:14-cv-01967 Document 1 Filed 11/21/14 Page 17 of 28
18
52. Defendants may not “draw[] [Money] from the Treasury, but in Consequence of
Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7.
53. No law appropriating funds for Section 1402 Offset Program payments to Insurers
has been enacted.
54. The Section 1402 Offset Program payments that defendants have made to
Insurers, and are continuing to make to Insurers, violate Article I, section 9, clause 7 of the
Constitution.
55. The House has been injured, and will continue to be injured, by defendants’
unconstitutional actions which, among other things, usurp the House’s legislative authority.
56. WHEREFORE, the House prays that the Court (i) declare that defendants’
Section 1402 Offset Program payments to Insurers violate Article I, section 9, clause 7 of the
Constitution, and (ii) enjoin defendants Lew and the Treasury Department from making any
additional Section 1402 Offset Program payments to Insurers unless and until a law
appropriating funds for such payments is enacted in accordance with Article I of the
Constitution.
COUNT II
(Section 1402 Offset Program Payments to Insurers
Violate Article I, Section 1 and Article I, Section 7, Clause 2 of the Constitution)
57. The House incorporates and re-alleges paragraphs 1 through 56, above, as if set
forth fully herein.
58. Defendants may not “draw[] [Money] from the Treasury, but in Consequence of
Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7.
59. No law appropriating funds for Section 1402 Offset Program payments to Insurers
has been enacted.
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19
60. Defendants’ actions in making, and continuing to make, Section 1402 Offset
Program payments to Insurers violate Article I, section 1 and Article I, section 7, clause 2 of the
Constitution.
61. The House has been injured, and will continue to be injured, by defendants’
unconstitutional actions which, among other things, usurp the House’s legislative authority.
62. WHEREFORE, the House prays that the Court (i) declare that defendants’
Section 1402 Offset Program payments to Insurers violate Article I, section 1 and Article I,
section 7, clause 2 of the Constitution, and (ii) enjoin defendants Lew and the Treasury
Department from making any additional Section 1402 Offset Program payments to Insurers
unless and until a law appropriating funds for such payments is enacted in accordance with
Article I of the Constitution.
COUNT III
(Section 1402 Offset Program Payments to Insurers Violate 31 U.S.C. § 1324)
63. The House incorporates and re-alleges paragraphs 1 through 62, above, as if set
forth fully herein.
64. Section 1324(a) of title 31 provides that “[n]ecessary amounts are appropriated to
the Secretary of the Treasury for refunding internal revenue collections as provided by law.”
65. Section 1324(b) of title 31 provides that “[d]isbursements may be made from the
appropriation made by this section [i.e., section 1324] only for – (1) refunds to the limit of
liability of an individual tax account; and (2) refunds due from credit provisions of the
[IRC] . . . .”
66. Defendants are using the permanent appropriation for refunds due under the IRC,
provided by section 1324 of title 31, to fund Section 1402 Offset Program payments.
Case 1:14-cv-01967 Document 1 Filed 11/21/14 Page 19 of 28
20
67. Defendants’ direct payments to Insurers under the Section 1402 Offset Program
are neither “(1) refunds to the limit of liability of an individual tax account; [nor] (2) refunds due
from credit provisions of the [IRC].”
68. The Section 1402 Offset Program payments by defendants to Insurers violate
section 1324 of title 31.
69. The House has been injured, and will continue to be injured, by defendants’
unlawful actions which, among other things, usurp the House’s legislative authority.
70. WHEREFORE, the House prays that the Court (i) declare that defendants’
Section 1402 Offset Program payments to Insurers violate section 1324 of title 31, and (ii) enjoin
defendants Lew and the Treasury Department from making any additional Section 1402 Offset
Program payments to Insurers unless and until a law appropriating funds for such payments is
enacted in accordance with Article I of the Constitution.
COUNT IV
(Section 1402 Offset Program Payments to Insurers Violate the ACA)
71. The House incorporates and re-alleges paragraphs 1 through 70, above, as if set
forth fully herein.
72. In crafting legislation, Congress chooses whether particular programs will be
authorized without appropriation, authorized and funded with temporary appropriations, or
authorized and funded with permanent appropriations.
73. The budgetary impact of programs was a prominent element running through the
debate over the ACA, and Congress selected different forms of authorization or appropriations
for different programs.
74. For example, Congress selected different appropriation schemes for ACA sections
1401 and 1402.
Case 1:14-cv-01967 Document 1 Filed 11/21/14 Page 20 of 28
21
75. In section 1401 of the ACA, Congress established a new program – the Section
1401 Refundable Tax Credit Program – and, elsewhere in the ACA, appropriated funds for that
program by expressly linking the program to the permanent appropriation for refunds due under
the IRC (31 U.S.C. § 1324). See ACA, §§ 1401(a), 1401(d)(1), 1412(c)(2).
76. In section 1402 of the ACA, Congress established another new program – the
Section 1402 Offset Program. However, in stark contrast to the Section 1401 Refundable Tax
Credit Program, Congress did not provide any appropriation for the Section 1402 Offset
Program, either by linking that program to the permanent appropriation for refunds due under the
IRC (31 U.S.C. § 1324) or otherwise.
77. Congress thereby manifested its intent that the Section 1402 Offset Program be
funded by temporary appropriations, if at all, and that no Section 1402 Offset Program payments
be made absent such a temporary appropriation.
78. Congress has not enacted any temporary appropriation for the Section 1402 Offset
Program, and defendants cannot imply from mere authorizing language in ACA § 1402 the
authority to expend funds. Moreover, defendants cannot convert ACA § 1402 into a permanent
appropriation by executive fiat or unilateral action.
79. In light of the entire statutory scheme, the Section 1402 Offset Program payments
that defendants have made to Insurers, and are continuing to make to Insurers, violate the ACA.
80. The House has been injured, and will continue to be injured, by defendants’
unlawful actions which, among other things, usurp the House’s legislative authority.
81. WHEREFORE, the House prays that the Court (i) declare that defendants’
Section 1402 Offset Program payments to Insurers violate the ACA, and (ii) enjoin defendants
Lew and the Treasury Department from making any additional Section 1402 Offset Program
Case 1:14-cv-01967 Document 1 Filed 11/21/14 Page 21 of 28
22
payments to Insurers unless and until a law appropriating funds for such payments is enacted in
accordance with Article I.
COUNT V
(Section 1402 Offset Program Payments to Insurers Violate
the Administrative Procedure Act)
82. The House incorporates and re-alleges paragraphs 1 through 81, above, as if set
forth fully herein.
83. Defendants’ direct payments to Insurers under the Section 1402 Offset Program
constitute “agency action” and/or “final agency action” within the meaning of the Administrative
Procedure Act, 5 U.S.C. §§ 500 et seq. (“APA”).
84. Defendants’ direct payments to Insurers under the Section 1402 Offset Program
are “not in accordance with law” within the meaning of the APA § 706(2)(A).
85. Defendants’ direct payments to Insurers under the Section 1402 Offset Program
are “contrary to constitutional right, power, privilege, or immunity” within the meaning of the
APA § 706(2)(B).
86. Defendants’ direct payments to Insurers under the Section 1402 Offset Program
are “in excess of statutory jurisdiction, authority, or limitation, or short of statutory right” within
the meaning of the APA § 706(2)(C).
87. Accordingly, the Section 1402 Offset Program payments defendants have made to
Insurers, and are continuing to make to Insurers, violate the APA, in particular, APA
§ 706(2)(A), (B), and (C).
88. The House has been injured, and will continue to be injured, by defendants’
unlawful actions which, among other things, usurp the House’s legislative authority.
Case 1:14-cv-01967 Document 1 Filed 11/21/14 Page 22 of 28
23
89. The House has no adequate or available administrative remedy, and/or any effort
to obtain an administrative remedy would be futile.
90. WHEREFORE, the House prays that the Court (i) declare that defendants’
Section 1402 Offset Program payments to Insurers violate the APA, and (ii) enjoin defendants
Lew and the Treasury Department from making any additional Section 1402 Offset Program
payments to Insurers unless and until a law appropriating funds for such payments is enacted in
accordance with Article I of the Constitution.
COUNT VI
(Treasury Rule, pmbl. § XV.D.6.a(1) Violates Article I, Section 1
and Article I, Section 7, Clause 2 of the Constitution)
91. The House incorporates and re-alleges paragraphs 1 through 90, above, as if set
forth fully herein.
92. Defendants Lew and the Treasury Department may not amend or repeal any
provisions of the ACA.
93. By virtue of Treasury Rule, pmbl. § XV.D.6.a(1), defendants Lew and the
Treasury Department effectively have amended section 1513(d) of the ACA, which provides that
“[t]he amendments made by this section shall apply to months beginning after December 31,
2013.” Id. (emphasis added).
94. By thus effectively amending section 1513(d) of the ACA, defendants Lew and
the Treasury Department have violated the Constitution, in particular, Article I, section 1, which
vests in the Congress “[a]ll legislative Powers,” and Article I, section 7, clause 2, requiring
passage by both the House and Senate, and then presentment to the President.
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24
95. The House has been injured, and will continue to be injured, by the
unconstitutional actions of defendants Lew and the Treasury Department which, among other
things, usurp the House’s legislative authority.
96. WHEREFORE, the House prays that the Court declare that Treasury Rule, pmbl.
§ XV.D.6.a(1) violates Article I, section 1 and Article I, section 7, clause 2 of the Constitution.20
COUNT VII
(Treasury Rule, pmbl. § XV.D.7.a Violates Article I, Section 1
and Article I, Section 7, Clause 2 of the Constitution)
97. The House incorporates and re-alleges paragraphs 1 through 96, above, as if set
forth fully herein.
98. Defendants Lew and the Treasury Department may not amend or repeal any
provisions of the ACA, including amendments to the IRC effectuated by the ACA.
99. By virtue of Treasury Rule, pmbl. § XV.D.7.a, defendants Lew and the Treasury
Department effectively have amended section 4980H of the IRC, which mandates that applicable
large employers offer affordable coverage to all of their FTEs in order to avoid the tax penalty
imposed by section 4980H(a).
100. By effectively amending section 4980H of the IRC, defendants Lew and the
Treasury Department have violated the Constitution, in particular, Article I, section 1, which
vests in the Congress “[a]ll legislative Powers,” and Article I, section 7, clause 2, requiring
passage by both the House and Senate, and then presentment to the President.
20 The House does not seek relief with respect to IRS Notice 2013-45 which, as noted above in paragraph
45(ii), effectively altered the deadline established by section 1513(d) of the ACA from “months beginning
after December 31, 2013” to “months beginning after December 31, 2014” for all large employers, for the
sole reason that IRS Notice 2013-45 will cease to have any effect as of January 1, 2015.
Case 1:14-cv-01967 Document 1 Filed 11/21/14 Page 24 of 28
25
101. The House has been injured, and will continue to be injured, by the
unconstitutional actions of defendants Lew and the Treasury Department which, among other
things, usurp the House’s legislative authority.
102. WHEREFORE, the House prays that the Court declare that Treasury Rule, pmbl.
§ XV.D.7.a violates Article I, section 1 and Article I, section 7, clause 2 of the Constitution.
COUNT VIII
(Treasury Rule, pt. 54, §§ 54.4980H-4(a), 54.4980H-5(a) Violate Article I, Section 1 and
Article I, Section 7, Clause 2 of the Constitution)
103. The House incorporates and re-alleges paragraphs 1 through 102, above, as if set
forth fully herein.
104. Defendants Lew and the Treasury Department may not amend or repeal any
provisions of the ACA, including amendments to the IRC effectuated by the ACA.
105. By virtue of Treasury Rule, pt. 54, §§ 54.4980H-4(a), 54.4980H-5(a), defendants
Lew and the Treasury Department effectively have amended section 4980H of the IRC, which
mandates that applicable large employers offer affordable coverage to all of their FTEs to avoid
the tax penalties imposed by section 4980H(a)-(b).
106. By effectively amending section 4980H of the IRC, defendants Lew and the
Treasury Department have violated the Constitution, in particular, Article I, section 1, which
vests in the Congress “[a]ll legislative Powers,” and Article I, section 7, clause 2, requiring
passage by both the House and Senate, and then presentment to the President.
107. The House has been injured, and will continue to be injured, by the
unconstitutional actions of defendants Lew and the Treasury Department which, among other
things, usurp the House’s legislative authority.
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26
108. WHEREFORE, the House prays that the Court declare that Treasury Rule, pt. 54,
§§ 54.4980H-4(a), 54.4980H-5(a) violate Article I, section 1 and Article I, section 7, clause 2 of
the Constitution.
PRAYER FOR RELIEF
WHEREFORE, the House respectfully prays that this Court:
A. Enter declaratory relief as follows:
(i) With respect to Count I, declare that defendants’ Section 1402 Offset
Program payments to Insurers violate Article I, section 9, clause 7 of the
Constitution;
(ii) With respect to Count II, declare that defendants’ Section 1402 Offset
Program payments to Insurers violate Article I, section 1 and Article I,
section 7, clause 2 of the Constitution;
(iii) With respect to Count III, declare that defendants’ Section 1402 Offset
Program payments to Insurers violate 31 U.S.C. § 1324;
(iv) With respect to Count IV, declare that defendants’ Section 1402 Offset
Program payments to Insurers violate the ACA;
(v) With respect to Count V, declare that defendants’ Section 1402 Offset
Program payments to Insurers violate the APA;
(vi) With respect to Count VI, declare that Treasury Rule, pmbl.
§ XV.D.6.a(1) violates Article I, section 1 and Article I, section 7, clause 2
of the Constitution;
Case 1:14-cv-01967 Document 1 Filed 11/21/14 Page 26 of 28
27
(vii) With respect to Count VII, declare that Treasury Rule, pmbl. § XV.D.7.a
violates Article I, section 1 and Article I, section 7, clause 2 of the
Constitution; and
(viii) With respect to Count VIII, declare that Treasury Rule, pt. 54,
§§ 54.4980H-4(a), 54.4980H-5(a) violate Article I, section 1 and Article I,
section 7, clause 2 of the Constitution.
B. Enter injunctive relief as follows:
(i) With respect to Counts I, II, III, IV, and V, enjoin defendants Lew and the
Treasury Department from making any further Section 1402 Offset
Program payments to Insurers unless and until a law appropriating funds
for such payments is enacted in accordance with Article I of the
Constitution.
C. Grant the House such other and further relief as may be just and proper under the
circumstances.
Case 1:14-cv-01967 Document 1 Filed 11/21/14 Page 27 of 28
28
Respectfully submitted,
/s/ Jonathan Turley
JONATHAN TURLEY
DC Bar No. 417674
2000 H Street, N.W.
Washington, D.C. 20052
(202) 285-8163
jturley@law.gwu.edu

Of Counsel:
KERRY W. KIRCHER, General Counsel
DC Bar No. 386816
WILLIAM PITTARD, Deputy General Counsel
DC Bar No. 482949
TODD B. TATELMAN, Assistant Counsel
VA Bar No. 66008
ELENI M. ROUMEL, Assistant Counsel
SC Bar No. 75763
ISAAC B. ROSENBERG, Assistant Counsel
DC Bar No. 998900
KIMBERLY HAMM, Assistant Counsel
DC Bar No. 1020989
OFFICE OF GENERAL COUNSEL
U.S. HOUSE OF REPRESENTATIVES
219 Cannon House Office Building
Washington, D.C. 20515
(202) 225-9700
Counsel for Plaintiff United States House of
Representatives
November 21, 2014
Case 1:14-cv-01967 Document 1 Filed 11/21/14 Page 28 of 28
Case 1:14-cv-01967 Document 1-1 Filed 11/21/14 Page 1 of 2
Case 1:14-cv-01967 Document 1-1 Filed 11/21/14 Page 2 of 2
AO 440 (Rev. 12/09; DC 03/10) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
__________ District of __________
)))))))
Plaintiff
v. Civil Action No.
Defendant
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address)
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are:
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
ANGELA D. CAESAR, CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
District of Columbia
United States House of Representatives,
14-cv-01967
Sylvia Mathews Burwell, et al.,
Sylvia Mathews Burwell
Secretary of the United States Department of Health and Human Services
200 Independence Avenue, S.W.
Washington, D.C. 20201
Jonathan Turley
2000 H Street, N.W.
Washington, D.C. 20052
Case 1:14-cv-01967 Document 1-2 Filed 11/21/14 Page 1 of 2
AO 440 (Rev. 12/09; DC 03/10) Summons in a Civil Action (Page 2)
Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date) .
I personally served the summons on the individual at (place)
on (date) ; or
I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual’s last known address; or
I served the summons on (name of individual) , who is
designated by law to accept service of process on behalf of (name of organization)
on (date) ; or
I returned the summons unexecuted because ; or
Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ .
I declare under penalty of perjury that this information is true.
Date:
Server’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc:
14-cv-01967
0.00
Case 1:14-cv-01967 Document 1-2 Filed 11/21/14 Page 2 of 2
AO 440 (Rev. 12/09; DC 03/10) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
__________ District of __________
)))))))
Plaintiff
v. Civil Action No.
Defendant
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address)
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are:
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
ANGELA D. CAESAR, CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
District of Columbia
United States House of Representatives,
14-cv-01967
Sylvia Mathews Burwell, et al.,
United States Department of Health and Human Services
200 Independence Avenue, S.W.
Washington, D.C. 20201
Jonathan Turley
2000 H Street, N.W.
Washington, D.C. 20052
Case 1:14-cv-01967 Document 1-3 Filed 11/21/14 Page 1 of 2
AO 440 (Rev. 12/09; DC 03/10) Summons in a Civil Action (Page 2)
Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date) .
I personally served the summons on the individual at (place)
on (date) ; or
I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual’s last known address; or
I served the summons on (name of individual) , who is
designated by law to accept service of process on behalf of (name of organization)
on (date) ; or
I returned the summons unexecuted because ; or
Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ .
I declare under penalty of perjury that this information is true.
Date:
Server’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc:
14-cv-01967
0.00
Case 1:14-cv-01967 Document 1-3 Filed 11/21/14 Page 2 of 2
AO 440 (Rev. 12/09; DC 03/10) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
__________ District of __________
)))))))
Plaintiff
v. Civil Action No.
Defendant
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address)
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are:
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
ANGELA D. CAESAR, CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
District of Columbia
United States House of Representatives,
14-cv-01967
Sylvia Mathews Burwell, et al.,
Jacob J. Lew
Secretary of the United States Department of the Treasury
1500 Pennsylvania Avenue, N.W.
Washington, D.C. 20220
Jonathan Turley
2000 H Street, N.W.
Washington, D.C. 20052
Case 1:14-cv-01967 Document 1-4 Filed 11/21/14 Page 1 of 2
AO 440 (Rev. 12/09; DC 03/10) Summons in a Civil Action (Page 2)
Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date) .
I personally served the summons on the individual at (place)
on (date) ; or
I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual’s last known address; or
I served the summons on (name of individual) , who is
designated by law to accept service of process on behalf of (name of organization)
on (date) ; or
I returned the summons unexecuted because ; or
Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ .
I declare under penalty of perjury that this information is true.
Date:
Server’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc:
14-cv-01967
0.00
Case 1:14-cv-01967 Document 1-4 Filed 11/21/14 Page 2 of 2
AO 440 (Rev. 12/09; DC 03/10) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
__________ District of __________
)))))))
Plaintiff
v. Civil Action No.
Defendant
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address)
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are:
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
ANGELA D. CAESAR, CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
District of Columbia
United States House of Representatives,
14-cv-01967
Sylvia Mathews Burwell, et al.,
United States Department of the Treasury
1500 Pennsylvania Avenue, N.W.
Washington, D.C. 20220
Jonathan Turley
2000 H Street, N.W.
Washington, D.C. 20052
Case 1:14-cv-01967 Document 1-5 Filed 11/21/14 Page 1 of 2
AO 440 (Rev. 12/09; DC 03/10) Summons in a Civil Action (Page 2)
Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date) .
I personally served the summons on the individual at (place)
on (date) ; or
I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual’s last known address; or
I served the summons on (name of individual) , who is
designated by law to accept service of process on behalf of (name of organization)
on (date) ; or
I returned the summons unexecuted because ; or
Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ .
I declare under penalty of perjury that this information is true.
Date:
Server’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc:
14-cv-01967
0.00
Case 1:14-cv-01967 Document 1-5 Filed 11/21/14 Page 2 of 2
 
Judge
Rosemary M. Collyer
Additional information: http://ia902606.us.archive.org/34/items/gov.uscourts.dcd.169149/gov.uscourts.dcd.169149.docket.html

Rosemary M. Collyer granted motion to dismiss: (I used Chrome to open link)

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CCAQFjAA&url=https%3A%2F%2Fjonathanturley.files.wordpress.com%2F2015%2F01%2Fproposed-order.pdf&ei=jAfOVODVFaaxsASwhoHYAw&usg=AFQjCNFpS4ZjaBIjh9DLASxTV06hpNEdwA&sig2=KjzHocgnDm3gq_sFMIsA7A