Calvey v. Obama

• Decision Date: 26 April 2011
• Docket Number: Case No. CIV–10–353–R.
• Citation: 792 F.Supp.2d 1262
• Parties: Kevin CALVEY, et al., Plaintiffs,v.Barack Hussein OBAMA, et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

792 F.Supp.2d 1262

Kevin CALVEY, et al., Plaintiffs,

v.Barack Hussein OBAMA, et al., Defendants.

Case No. CIV–10–353–R.

United States District Court, W.D. Oklahoma.

April 26, 2011.

Kevin J. Calvey, Kevin J. Calvey PC, Oklahoma City, OK, for Plaintiffs.Michelle R. Bennett, U.S. Dept. of Justice, Washington, DC, for Defendants.

ORDER

DAVID L. RUSSELL, District Judge.

Before the Court are Defendants' motion to dismiss Plaintiffs' Amended Complaint [Doc. No 12]; Plaintiffs' motion to amend complaint [Doc. No. 19] and Plaintiffs' proposed Second Amended Complaint [Doc. No. 19–1]; Plaintiffs' Response to Defendants' motion to dismiss [Doc. No. 16]; and Defendants' reply in support of their motion to dismiss [Doc. No. 21].

In their reply brief, Defendants state that they have no objection to Plaintiffs' proposed amendment of their Amended Complaint. See Reply [Doc. No. 21] at p. 1. Moreover, Defendants address the allegation and claims in Plaintiffs' Proposed Second Amended Complaint in their reply brief. Accordingly, Plaintiffs' amended motion to amend is GRANTED and the proposed Second Amended Complaint attached thereto [Doc. No. 171] shall be deemed filed instanter, and Defendants' motion to dismiss as augmented by Defendants' reply shall be treated as directed to Plaintiffs' Second Amended Complaint.

In support of their motion to dismiss, for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), F.R.Civ.P., Defendants assert that Plaintiffs lack standing as to all of their claims and that their claims are not ripe. Encompassed within Defendants' arguments, they assert that Plaintiffs have failed to allege sufficient facts to establish standing and that their claims are ripe.

In their Second Amended Complaint, Plaintiffs allege that the Patient Protection and Affordable Care Act, Pub. L. No. 111–148, 124 Stat. 119 (March 23, 2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111–152, 124 Stat. 1029 (Mar. 30, 2010), hereinafter referred to as the “ACA” or simply the “Act,” and apparently in particular the minimum coverage provision of the Act, Section 1501 of the ACA, is unconstitutional because 1) Congress lacks authority under the Commerce Clause to force private citizens, including Plaintiffs, to purchase health care coverage and the Act therefore violates the Commerce Clause (First Claim); Congress lacks authority under Article I, § 2, 8 & 9 of the Constitution, and by implication the Sixteenth Amendment, to impose a capitation tax to enforce a mandate that private citizens, including Plaintiffs, purchase health care coverage under the Act (Second Claim); the power to enact legislation such as the Act is specifically reserved to the states pursuant to the Tenth Amendment (Third Claim); by forcing Plaintiffs to contribute to the funding of abortion, the Act violates Plaintiffs' “fundamental rights of conscience and the free exercise of religion protected by the First Amendment” (Fourth Claim); the Act deprives Plaintiffs of equal protection of the laws, guaranteed by the Fifth and Fourteenth Amendment “[b]y providing for some religious exemptions from the mandates of the Act, but forcing Plaintiffs to contribute to the funding of abortion in violation of their ... religious convictions” and “[b]y funding and benefitting certain special interest organizations, including unions, through tax exemptions and other mechanisms,” based on their political viewpoints, and “[b]y providing for ‘earmarks,’ or special interest expenditures,” while denying similar funding and benefits to other individuals who don't share similar viewpoints or favor with Congress or Defendants (Fifth Claim); the Act violates the due process requirements of the Fifth Amendment by mandating that all private citizens, including Plaintiffs, purchase health care coverage under penalty of law (Sixth Claim); and it requires citizens to provide private medical information to the federal government and/or its designated agents or authorized health care providers in violation of the Fourth Amendment (Seventh Claim). Plaintiffs seek a declaratory judgment that the Act violates the Constitution as set forth in Plaintiffs' claims and a preliminary and permanent injunction enjoining the Act's enforcement.

For a federal court to have jurisdiction over an action, the party bringing suit must establish standing. The Wildnerness Society v. Kane County, Utah, 632 F.3d 1162, 1168 (10th Cir.2011)(citing cases). The “irreducible constitutional minimum” requirements for standing are three. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351, 364 (1992); Opala v. Watt, 454 F.3d 1154, 1157 (10th Cir.2006). First, the plaintiff must have suffered an injury in fact which is an invasion of a legally protected interest, which is concrete and particularized and actual or imminent, rather than conjectural or hypothetical. Id. Secondly, there must be a causal connection between the plaintiff's injury and the conduct of which the plaintiff complains such that the injury is “fairly traceable” to the challenged action of the defendant and not the result of an independent action of some third party not before the Court. Id. Thirdly, it must be “likely” rather than merely “speculative” that the injury will be redressed by a favorable decision of the Court. Id. The Plaintiffs have the burden of establishing all three elements of standing. Lujan, 504 U.S. at 561, 112 S.Ct. at 2136, 119 L.Ed.2d at 364; Opala, 454 F.3d at 1157. Moreover, Plaintiffs must demonstrate standing for each claim they assert and for each form of relief they seek. Davis v. Federal Election Commission, 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737, 748 (2008); Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir.2007)( “Each plaintiff must have standing to seek each form of relief in each claim.”).

Three of the Plaintiffs herein allege that they “currently do not have health insurance and have no desire or plans to purchase health insurance;” and that the Act requires them “now to investigate how the Act will impact them, investigate alternatives to their current provision for health care, and alter their finances and save money in preparation for the imminent requirement in the Act that ... [they] purchase health insurance.” Second Amended Complaint at ¶ 9. All Plaintiffs “even those currently with health insurance” allege that they must now investigate how the Act will impact them, investigate alternatives to their current provision for health care, and alter their finances and save money in preparation for the imminent requirement in the Act that such Plaintiffs purchase health insurance.” Id. at ¶ 10. In summary, all Plaintiffs allege that they must currently take investigatory steps and make financial arrangements now to ensure compliance with the Act.

Defendants argue that the three Plaintiffs who do not currently have health insurance and object to being required to purchase it have not alleged sufficient facts to establish standing with regard to their First, Second, Third and Sixth Claims. This is so, they assert, because those Plaintiffs have failed to allege facts showing that they are very likely to be subject to the minimum coverage provision in 2014 and because they have not alleged that they are foregoing purchases now to save money to buy insurance in the future, as was true in the cases on which Plaintiffs rely to assert that they have standing. With respect to the Plaintiffs who currently have health insurance, Defendants argue that they have not established an injury in fact with respect to their First, Second, Third and Sixth Claims for Relief. Defendants assert that those Plaintiffs' contention in the brief in opposition to Defendants' motion that their need to take investigatory steps and make financial arrangements now for other means of health insurance or payment of health costs due to the “fact” that the cost of Plaintiffs' health insurance will increase does not demonstrate injury in fact because the predicate “fact” is merely a unilateral prediction and speculation about possible future events, citing Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135, 147 (1990); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 233–35, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990); Covenant Media of S.C., L.L.C. v. City of North Charleston, 493 F.3d 421, 429–30 (4th Cir.2007). Defendants further argue that these Plaintiffs' alleged injury, even assuming that it will occur in the future, is not fairly traceable to the ACA because the Act doesn't require insurance companies to raise their rates and there is no guarantee or even a likelihood that any insurance companies that do raise rates in the future will lower them if Plaintiffs prevail. Defendants argue that in any event, Plaintiffs' claims of injury depend on the choices of third parties not before the court whose actions the Court cannot presume either to control or predict, citing Lujan, 504 U.S. at 560, 112 S.Ct. at 2136, 119 L.Ed.2d at 364 and Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 42–43 & 45–46, 96 S.Ct. 1917, 48 L.Ed.2d 450, 462–63 & 464–65 (1976).

Defendants assert that Plaintiffs have also failed to allege a sufficient injury to confer standing to make their fifth claim, that for an equal protection violation, because Plaintiffs have failed to cite an ACA provision that could be considered an “earmark,” “special interest expenditure” or a tax exemption favoring unions and for that matter do not allege any facts showing that Plaintiffs don't benefit from the alleged “earmarks,” expenditures or exemption or point to other individuals who do benefit from those alleged “provisions” so as to demonstrate injury resulting from differential treatment. Defendants conclude that “Plaintiffs' vague and conclusory allegation that unidentified provisions of the Act treat them differently, in unspecified...