DJP Update 3-4-2011 In Orlando to give speech to ACS; Judge Vinson’s “clarification” statement on PPACA decision
ITEM ONE: Now in Orlando to give speech in morning to Florida Chapter of American College of Surgeons.
Title of presentation for 8:00 a.m. Saturday, March 4, 2011:
Mayday! Mayday! Mayday! Physician Leadership in Health System Reform
ITEM TWO: Judge Vinson’s 20 page clarification of his decision in PPACA in response to Federal Government request to “clarify” ruling – issued March 3, 2011
State of Florida, by and through Attorney General Pam Bondi, et al.;
Plaintiffs,
v.
United States Department of Health and Human Services, et al.,
Defendants
Read the entire 20 pages at:
http://www.scribd.com/doc/49955429/Vinson-Clarification
or
http://online.wsj.com/public/resources/documents/030311vinsonruling.pdf
Interesting how the news reports put different headlines on this issue. You make your own decision.
DJP COMMENT: The judge repeats what he said in the first opinion: the entire “Act” must be declared void. However, he grants stay “conditioned upon the defendants filing their notice of appeal within seven (7) calendar days of this order and seeking an expedited appellate review.”
In other words, you want a stay? OK, you have it BUT you have 7 days to seek an expedited appellate review. The clock is ticking!
I pasted a few excerpts from the decision below if you don’t have time to read the entire 20 pages. Thus you can read the judge’s words and not rely on my interpretation.
Page 14
So to “clarify” my order and judgment: The individual mandate was declared unconstitutional. Because that “essential” provision was unseverable from the rest of the Act, the entire legislation was void. This declaratory judgment was expected to be treated as the “practical” and “functional equivalent of an injunction” with respect to the parties to the litigation. This expectation was based on the “longstanding presumption” that the defendants themselves identified and agreed to be bound by, which provides that a declaratory judgment against federal officials is a de facto injunction. To the extent that the defendants were unable (or believed that they were unable) to comply, it was expected that they would immediately seek a stay of the ruling, and at that point in time present their arguments for why such a stay is necessary, which is the usual and standard procedure. It was not expected that they would effectively ignore the order and declaratory judgment for two and one-half weeks, continue to implement the Act, and only then file a belated motion to clarify (6).
Page 18
Finally, for the last factor, I must consider “where the public interest lies.” Although the defendants’ pleadings present a reasonably persuasive argument for why the “public interest lies” in having my declaratory judgment and de facto injunction stayed pending appeal, almost every argument that the defendants have advanced speaks much more persuasively to why the case should be immediately appealed and pursued in the most expeditious and accelerated manner allowable. As both sides have repeatedly emphasized throughout this case, the Act seeks to comprehensively reform and regulate more than one-sixth of the national economy. It does so via several hundred statutory provisions and thousands of regulations that put myriad obligations and responsibilities on individuals, employers, and the states. It has generated considerable uncertainty while the Constitutionality of the Act is being litigated in the courts. The sooner this issue is finally decided by the Supreme Court, the better off the entire nation will be. And yet, it has been more than one month from the entry of my order and judgment and still the defendants have not filed their notice of appeal.
Page 19
After careful consideration of the factors noted above, and all the arguments set forth in the defendants’ motion to clarify, I find that the motion, construed as a motion for stay, should be GRANTED. However, the stay will be conditioned upon the defendants filing their anticipated appeal within seven (7) calendar days of this order and seeking an expedited appellate review, either in the Court of Appeals or with the Supreme Court under Rule 11 of that Court. See, e.g., NML Capital Ltd. v. Republic of Argentina, 2005 WL 743086, at *5 (S.D.N.Y. Mar. 31, 2005) (district court granted motion to stay its own ruling, “conditioned on as prompt as possible appeal and a motion for an expedited appeal”).
Page 20
Therefore, the defendants’ motion to clarify (doc. 156) is GRANTED, as set forth above. To the extent that motion is construed as a motion to stay, it is also
GRANTED, and the summary declaratory judgment entered in this case is STAYED pending appeal, conditioned upon the defendants filing their notice of appeal within seven (7) calendar days of this order and seeking an expedited appellate review.
DONE and ORDERED this 3rd day of March, 2011.
/s/ Roger Vinson
ROGER VINSON
Senior United States District Judge
———
Stay well,
Donald
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