Friday, May 27, 2011

U.S. moves to dismiss appeal in TMLC v. Obama as moot

Another fascinating development on the justiciability front.

In light of the supplemental letter brief filed by the plaintiff-appellants in Thomas More Law Center v. Obama late Wednesday--which disclosed that plaintiff Jann DeMars has had health insurance through her employer since October 2010--the United States has filed a motion in the Sixth Circuit urging the court to dismiss the appeal as moot.

The argument proceeds as follows:

* Because DeMars now has health coverage, she can allege no actual or imminent injury from the legal requirement that, beginning in January 2014, such coverage will be mandated. She is voluntarily engaging in that conduct right now, absent any legal requirement. Thus, she can show no injury from the coming requirement.

* Individual plaintiff Steven Hyder has done no more than make the bare allegation that the minimum coverage provision “negatively impacts me now because I will have to reorganize my affairs and essentially change the way I live to meet the government’s demands.” This is insufficient to establish an injury in fact. Indeed, every court to have found standing thus far (for an individual) has required more than such a conclusory assertion.

* Individual plaintiffs John Ceci and Salina Hyder did not submit any declarations in the district court proceeding. Moreover, argues the United States, "the complaint does not even allege that they will face imminent economic injury as a result of the minimum coverage provision." Hence, they have no standing.

* The Thomas More Law Center can only have associational standing to challenge the minimum coverage provision to the extent that one of its members has standing in his or her own right. But the only members identified in the complaint as suffering an injury are DeMars, the Hyders, and Cici.

In short, says DOJ, there is no one left who has standing. The appeal is moot and should be dismissed forthwith.

You can find the United States' motion to dismiss the appeal as moot here.