DOJ moves to stay pro se lawsuit in NJ

The last twenty-four hours have seen a flurry of activity in the pro se lawsuit that two New Jersey men filed to invalidate the healthcare-reform bill, as the current briefing deadline approaches.

Yesterday, at 4:30 p.m., Donald R. Laster Jr received a 12-page Memorandum in Support of Motion to Stay Proceedings for Plaintiffs' Motion for Summary Judgment, in which they promised to file a comprehensive motion to dismiss the case. This is actually the second time that Ethan P. Davis, the trial lawyer assigned to the case, has promised an answer to the initial complaint in the case of Purpura et al. v. Sebelius et al. (Case No. 3-10-CV-04814 (FLW)). As Laster and co-plaintiff Nicholas E. Purpura reminded this Examiner today, Davis made such a promise on October 19, 2010, and did not keep it.

In reply to the memorandum (and also to this receipt of electronic filing), Purpura and Laster last night drafted this Reply Affidavit, and for good measure added a Request for Immediate Forfeiture, saying that the Justice Department has had plenty of time to answer their complaint and is engaging in stalling tactics and "procedural chicanery."

Purpura and Laster noted that the Justice Department mailed their memorandum on December 23 (as the postmark shows), but it did not arrive until December 30. They speculated that Davis deliberately delayed mailing the memorandum so that it would not arrive before it did. As supporting evidence, they cited the telephone call that Davis made to Purpura on Wednesday, asking informally for a further two-week extension and even saying that the Justice Department would grant such an extension to Purpura and Laster if they asked for it. Notably enough, Davis did not mention the memorandum to Purpura during their telephone convesation.

(True enough, the BIizzard of 2010 delayed mail deliveries to some degree. However, this Examiner received, on Thursday, a return receipt from a State office in Trenton on an unrelated matter. That receipt was dated Monday, and this Examiner mailed the document in question one day before Davis is supposed to have mailed the memorandum. Therefore the seven-calendar-day delay in the delivery of the memorandum to Laster begs explanation. Purpura and Laster included a request that the court order the defendants to serve all remaining correspondents via Federal Express, to avoid any similar mail delays in future.)

The memorandum still does not address any of the 15 counts that Purpura and Laster have alleged against the constitutionality of HR 3590, the Patient Protection and Affordable Care Act (which Davis abbreviates as ACA, not PPACA). Rather, it attempts to show that Purpura and Laster lack standing to bring their action. Or rather, it promises that a more thorough showing of lack of standing on the part of the plaintiffs is forthcoming.

The plaintiffs reply rather scathingly that the defense has had more than three months to present a brief in answer to the complaint, that it promised such a brief once before and failed to deliver, that the authorities that they cite in an attempt to deny the plaintiff's standing are either irrelevant or, worse yet, actually supportive of the plaintiff's case for standing, that Davis behaved unethically by calling Purpura at 6:00 p.m. asking for an extension of time and failing to mention that a motion-for-stay was on the way, and that absolutely anyone has standing to challenge a law that threatens the people's rights under the Constitution. They also reply directly to a rather strange argument that the plaintiffs failed to serve their complaint properly because they did not serve it with the office of the United States Attorney for New Jersey. (In fact, they served it with the Secretaries of Health-and-Human-Services, Treasury, and Labor, who are the named defendants.)

To attempt to use manipulation, distortion of fact, or any technicality, to exempt them from their duty and obligation only demonstrates further their motion is submitted in "bad faith" solely as a delaying tactic and by law, must be denied.

The most important assertion that Purpura and Laster make is that the people must protest immediately when something threatens their rights, and that as representatives of the people, they are doing their duty to protect the people's rights, and that is where their standing derives.

The two plaintiffs attempted to deliver their reply affidavit today but, despite reading earlier notices that the court would be open, found the court closed. They will attempt again to hand-deliver their reply on Monday, which is the briefing deadline.

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