ACA Federalism Litigation State by State

Federalism cases involving the ACA, and Medicaid maintenance of effort (Families First Act, sec. 6008) materials, and a law review article on the ACA and federalism

ACA FEDERALISM CASES

FLORIDA V. U.S., No. 3:10-cv-91 (N.D. Fla.)

US motion to dismiss, June 16, 2010

merged_16537_-1-1628001631

Florida opposition, August 6, 2010

Plaintiffs’ dism op

US reply, August 27, 2010

florida v us feds dism reply

Florida v. U.S., No. 3:10-cv-91 (N.D. Fla.), Order on Motion to Dismiss (Oct. 14, 2010)

motion to dismiss order

Plaintiffs’ summary judgment motion and memo, November 4, 2010

pltfs sj mo

pltfs sj memo

US summary judgment motion, statement of material facts, and memo, November 4, 2010

govt sj mo

govt sj statement of facts

govt sj ms

US answer to first amended complaint, November 4, 2010

Florida govt answer to 1st amended complaint

US opposition to plaintiffs’ summary judgment motion, November 23, 2010

Govt SJ op

Plaintiffs’ opposition to US summary judgment motion, November 23, 2010

Pltfs’ SJ op

Pltfs’ SJ addl evidence

Pltfs’ response to govt statement of facts

Plaintiffs’ reply supporting summary judgment, December 6, 2010

Pltfs’ SJ reply

US reply supporting summary judgment, December 6, 2010

Govt’s sj reply

Florida v. U.S., No. 3:10-cv-91 (N.D. Fla.), Order Granting Summary Judgment (Jan. 31, 2011)

Florida v. U.S., Nos. 11-11021/11067 (11th Cir.), Opinion (Aug. 12, 2011)

National Fed. of Indep. Business v. Sebelius, Nos. [[tel:11-393/398|11-393/398]]/400 (U.S., June 28, 2012)

THE NON-EXPANSION STATES DSH CASE

Conway Medical Center v. Becerra, No. 1:21-cv-1250 (D. D.C., filed May 6, 2021)

Complaint

7118458-0–51149

ALASKA

Alaska Legislative Council v. Walker, No. 3AN-15-09208CI (Alaska Superior Court), Transcript of Decision (Aug. 28, 2015)

Alaska Legislative Council v. Walker, No. 3AN-15-09208CI (Alaska Superior Court), Summary Judgment Decision and Order (March 1, 2016)

Spencer v. Crum, No. 3AN-19-005386CI (State of Alaska, Third Judicial District), 3:19-cv-87 (D. Alaska)
Notice of removal
Complaint
Other documents filed in state court
Order subsequent to removal
Renewed filings
State’s answer
Notice of settlement negotiations
Joint status report
Settlement
===

ARIZONA

Biggs v. Brewer, No. CV-14-0132-PR (Arizona), Opinion (Dec. 31, 2014)

Biggs v. Brewer, No. CV 2013-011699 (Maricopa Co. Superior Court), Opinion (Aug. 27, 2015)

Biggs v. Betlach, No. 1 CA-CV 15-0743 (Arizona App.), Opinion (March 16, 2017)

Biggs v. Betlach, No. CV-17-0130-PR (Arizona), Opinion (November 17, 2017)

CALIFORNIA
Rivera v. Kent, No. A147534 (Cal. Ct. of Appeal, 1st District, June 27, 2019)
Rivera v. Kent, No. S257304 (Cal. Supreme Court, July 8, 2020)
07/08/2020 Transferred to CA 1/4 after grant of review In light of respondent’s concession of both issues on which we granted review, there is no controversy remaining for the court to decide. Respondent acknowledges that “[t]he existence of a separate performance standard does not categorically preclude mandamus relief in a case alleging a violation of the timeliness standards under state and federal law. Performance and timeliness standards are separate requirements.” Respondent also recognizes that in “a situation involving statewide problems in making eligibility determinations . . . it was proper for plaintiffs to seek relief from the Department rather than the counties.” Accordingly, the matter is transferred to the Court of Appeal, First Appellate District, Division Four, for further proceedings consistent with respondent’s concessions. (Cal. Rules of Court, rule 8.528, subd. (d).) On the court’s own motion, the Reporter of Decisions is directed not to publish in the Official Appellate Reports the opinion in the above-entitled appeal filed June 27, 2019 which appears at 37 Cal.App.5th 529. (Cal. Const., art. VI, section 14; Cal. Rules of Court, rule 8.1125, subd. (c)(2).) The Court of Appeal is also directed to award to petitioners the costs of obtaining review in this court (Cal. Rules of Court, rules 8.544, 8.278, subd. (c)), and, under the circumstances of this litigation also consider whether to award attorney’s fees, should petitioners so move.

Votes: Cantil-Sakauye, C.J., Chin, Corrigan, Liu, Cuéllar, Kruger and Groban, JJ.

CONNECTICUT

Carr v. Becerra, No. 3:22-cv-988 (D. Conn., filed August 3, 2022)

Complaint

nZrUQd2B

Emergency motion for TRO, August 3, 2022

Carr TRO ms 8 3 22

08/04/2022 8 ORDER: Plaintiffs shall serve a copy of the complaint, motion for temporary restraining order and supporting papers, and a copy of this order on the United States Attorney as well as on Assistant U.S. Attorneys Michelle McConaghy and David Nelson (Chief and Deputy Chief of the Civil Division, respectively) and on the Federal Programs Branch of the Civil Division in Washington, D.C., on or before 3pm on Friday, August 5, 2022, by (1) overnight, certified mail, and (2) email. Plaintiffs shall file proof of such service on the docket no later than 5pm on August 5. The Court will hold a telephonic status conference to discuss the motion for TRO at 2pm on August 8, 2022. Chambers will provide dial-in information.
Signed by Judge Michael P. Shea on 8/4/2022. (Wong, Qing Wai) (Entered: 08/04/2022)
08/08/2022 19 ORDER: As set forth on the record during today’s conference, and consented to by the parties, by close of business today the defendant shall file on the docket a summary of its position as to the enforcement of 42 C.F.R. § 433.400(c)(2)(i)(B) as to Ms. Moore and Ms. Carr and what it has communicated to the State of Connecticut as to the same.

The defendant’s opposition to the plaintiffs’ motion for preliminary injunction shall be filed by 9/8/22. The plaintiffs’ reply brief shall be filed by 9/19. The Court will hold an evidentiary hearing on the plaintiffs’ motion for preliminary injunction on 9/27 at 9:30 am in Courtroom 3. To the extent necessary, the hearing will continue to 9/28.

Prior to 9/20, the parties shall confer regarding witnesses and exhibits for the hearing. By 5:00 PM on 9/20, the parties shall jointly file their witness and exhibit lists, and they shall indicate any objections the parties have to witnesses or exhibits. By noon on 9/22, the parties shall deliver to chambers two courtesy copies of all exhibits, each placed in a three-ring binder with a copy of the exhibit list at the front of the binder and each exhibit separately tabbed. The parties shall deliver the original set of exhibits along with an exhibit list to the Courtroom Deputy.

Signed by Judge Michael P. Shea on 8/8/22. (Constantine, A.) (Entered: 08/08/2022)

US notice re nonenforcement against state re individual plaintiffs, August 8, 2022

nonT_LiP

[]

Hearing minutes, October 26, 2022

Carr hearing minutes 10 26

10/28/2022 76 Minute Entry for proceedings held before Judge Omar Williams: Motion Hearing and Evidentiary Hearing held on 10/26/2022 in person and via Zoom. Total Time: 5 hours, 5 minutes (Motion Hearing: 1 hour, 35 minutes; Evidentiary Hearing: 3 hours, 30 minutes). Court reporter: Catherine Cullen. Attorneys Sheldon Toubman and Deborah Dorfman appeared for Plaintiffs. Attorneys Madeline McMahon and Michelle McConaghy appeared for Defendant. The court heard testimony from Plaintiffs Brenda Moore, Deborah Carr, Mary Shaw, and Carol Katz. The court also heard oral argument on the pending motion for a preliminary injunction, see ECF No. 3 , and took the matter under advisement. An order on the motion will issue separately. (Wagner, Rebecca) (Entered: 10/28/2022)

Carr ruling, November 7, 2022

Carr ruling 11 7 22

Carr motion for expedited resolution, November 10, 2022

Carr mo exped 11 10

Carr plaintiff notice re public health emergency, November 15, 2022

Carr pltf notice re phe 11 15

11/17/2022 81 ORDER: On December 5, 2022, as previously indicated (ECF Nos. 56 & 59), the Court will hear argument on the plaintiffs’ motion for class certification. The Court will also hear argument on that day on the question whether, should the Court certify a class, the injunction granted in Judge Williams’s order, or some other injunctive relief requested by the Plaintiffs, should be extended to the entire class. Should the Government wish to file a supplemental brief on that question, it shall do so on or before the end of the day on November 25, 2022; any such brief shall not exceed 15 pages. Should the plaintiffs wish to file a response, any such response shall be filed by the end of the day on December 2, 2022; any such response shall be confined to 15 pages. Because this order addresses the topics raised in the motion for expedited resolution (ECF No. 79 ), that motion is DENIED as moot.

Signed by Judge Michael P. Shea on 11/17/22. (Constantine, A.) (Entered: 11/17/2022)

11/21/2022 83 ORDER: The defendant’s consented-to motion (ECF No. 82 ) for an extension of time until December 12, 2022 in which to respond to the amended complaint is granted. The Court notes further that, at the oral argument on December 5, 2022, the parties should also be prepared to discuss the other ground for the plaintiffs’ motion for a preliminary injunction, i.e., whether the interim rule was based on a correct or a permissible interpretation of the statute. If the parties wish to address that issue further in their supplemental briefs, they may do so, in which case they may have an additional 5 pages each, with no more than 5 pages devoted to the statutory issue.

Signed by Judge Michael P. Shea on 11/21/22. (Constantine, A.) (Entered: 11/21/2022)

US response re notice, November 23, 2022

Carr US response re notice of PHE 11 23

US supplemental brief, November 25, 2022

merged_97163_-1-1669572230

12/01/2022 88 NOTICE: At the argument on Monday, counsel shall be prepared to address all issues raised by their briefs. In addition, counsel shall be prepared to address the following questions, which arise from the briefs filed in connection with the motion for preliminary injunction, since those briefs are incorporated by reference in the briefs on the class certification issue: The plaintiffs’ brief in support of the motion for preliminary injunction states that “CMS officials made clear the terminations under the IFR were in fact mandatory in response to a question from a Connecticut Medicaid official.” (ECF No. 3-1 at 19.) And attached to this brief is an email from CMS that appears to substantiate this statement. ECF No. 3-5 at 190. Further, the Government states in its brief opposing class certification that “[t]he [Interim Final] Rule also interprets [Section 6008(b)(3) of the FFCRA] to mean that, subject to certain limitations, when a beneficiary loses eligibility for one Medicaid Group and becomes eligible for another, states are required to move that beneficiary to the coverage group for which she is eligible.” ECF No. 58 at 6 (emphasis added). This raises the following questions: What language in Section 6008(3) of the FFCRA (or any other statute) is the Secretary relying on to support his interpretation that a State is required to terminate full Medicaid benefits (or whatever level of benefits applied when the beneficiary enrolled) for a beneficiary once the State determines that the beneficiary is eligible for coverage under a Medicare Savings Program? By the same token, what language in the IFR itself, i.e., 42 C.F.R. Sec. 433.400(c)(2), supports the view that a State is required to terminate full Medicaid benefits (or whatever level of benefits applied when the beneficiary enrolled) for a beneficiary once the State determines that the beneficiary is eligible for coverage under a Medicare Savings Program? And is the view expressed by the Government about such a requirement the “authoritative” or “official position” of HHS, for purposes of determining whether to apply so-called Auer deference to HHS’s reading of its own regulation? See Kisor v. Wilkie, 139 S. Ct. 2400, 2416 (2019).

Signed by Judge Michael P. Shea on 12/1/22. (Constantine, A.) (Entered: 12/01/2022)

Response to supplemental opposition, December 2, 2022

Carr pltf response supp op 12 2 22

Minute entry, December 5, 2022

Carr minute entry 12 5 22

Answer, December 12, 2022

Carr answer 12 12 22

===

FLORIDA

W.B.

WB joint mo stay 1 19 23

WB stay 1 20 23

WB joint mo change mediators 1 27 23

IDAHO

Petition for Review in Rega

n v. Denney, Idaho Supreme Court No. 46545-2018

Petition for Review

Attorney General opinion, November 7, 2017

AG-Medicaid-C110717

Idaho Supreme Court, #46545, oral argument, January 29, 2019

Regan v. Denney, #46545, opinion, February 5, 2019

46545

KENTUCKY

Adams v. Comm. of Kentucky, No. 13-CI-605 (Franklin, Ky. Co. Circuit Court, Division 1, Sept. 3, 2013)

MAINE

Mayhew v. Burwell, No. 14-1300 (1st Cir.), Opinion (Nov. 17, 2014)

Maine Equal Justice Partners v. Hamilton, No. CV-18-___ (Kennebec Co. Superior Court)
Petition

Merits Brief

Motion to Expedite

Order, June 4, 2018

Order, August 23, 2018

Submissions to CMS package (from the Maine Supreme Judicial Court website, September 4, 2018)

cover-letter-sept4

spa-letter

medicaid-state-plan

transmittal-and-notice-of-approval-of-state-plan-material

fmap-claiming-spa-ME-18-0007

table1-of-part2-magi-conversion-plan

tribal-letters

governor-letter

Order, November 21, 2018

Ord 80C Appeal 11-21-18

MISSOURI

Cady v. Ashcroft, Nos. WD83823/WD83824, (Mo. App., June 8, 2020)

Opinion_WD83823 and WD83824

Doyle v. Tidball, No. 21AC-CC0086 (Cole Co. Circuit Court, June 23, 2021)

Final+Judgment—FINAL

Doyle v. Tidball, SC99185 (Missouri Supreme Court), set for oral argument, July 13, 2021

Doyle v. Tidball opinion, July 22, 2021

Opinion_SC99185

NEBRASKA

Christensen v. Gale, No. CI 18-2305 CI-(Lancaster County District Court, August 28, 2018)

2018_08_28_13_34_15 (1)

Christensen v. Gale, 301 Neb. 19 (Nebraska, Sept. 12, 2018)

2018-s-18-825

Amicus briefing in Gresham v. Azar, No. 20-37

Nebraska amicus brief, January 26, 2021

20210126160303362_Azar – 2021.01.26 NE Amicus Brief FINAL

Nebraska Appleseed amicus brief, February 23, 2021

20210223141045362_Appleseed Amicus PDFA

Etheredge v. Nebraska Dep’t of Health and Human Services (Lancaster Co. District Court, filed Feb. 25, 2021)

File-Stamped-Copy-of-Nebraska-Petition

Nebraska Appleseed press release, Feb. 26, 2021

https://neappleseed.org/blog/34695

NORTH CAROLINA

Berger v. Burwell, No. 5:17-cv-25 (E.D. N.C.), TRO (January 14, 2017)

Order, January 27, 2017

US op to PI/motion to dismiss, April 7, 2017

Pltf wdwl PI motion, April 17, 2017

Pltf op US mo dism, 4/28/2017

US reply supporting mo to dismiss, 5/12/2017

Voluntary dismissal, 7/20/2017

Berger voluntary dismissal

MISSISSIPPI
In re Initiative Measure No. 65, NO. 2020-IA-01199-SCT (Mississippi Supreme Court, May 14, 2021)

OHIO

Ohio ex rel Cleveland Right to Life v. State of Ohio Controlling Board, 138 Ohio St.3d 57 (Dec. 20, 2013)

TENNESSEE

State of Tennessee by and through Tennessee General Assembly v. U.S. Dep’t of State, No. 1:17cv01040 (W.D. Tenn.)

[]

Sixth Circuit opinion, July 24, 2019

20191219092833212_Tennessee_6th Cir Opinion

Order denying rehearing en banc, October 16, 2019

20191219092841306_CA6_10 16 2019 Order denying rehearing en banc

Petition for certiorari, No. 19-1137, March 13, 2020

20200313170336928_TN cert petition_3 13 2020_final

US waiver of right to respond, April 13, 2020

20200413192043038_Waiver Letter 19-1137

Center for Immigration Studies amicus, April 15, 2020

20200415122101688_200407a Amicus Brief for efiling

Eagle Forum amicus, April 15, 2020

20200415110002285_19-1137 Amicus Brief Eagle Forum

Immigration Reform Law Institute amicus, April 16, 2020

20200416153018159_19-1137 IRLI Tenn Refugee Pet Amicus

Request for response, May 12, 2020

[Most recent deadline, 8/14/2020]

A.M.C. v. Smith, No. 3:20-cv-240 (M.D. Tenn., filed March 19, 2020)

Complaint

AMC complaint

[]

Defendant’s motion for leave to file supplemental brief, with exhibits including CMS certification, January 19, 2021

AMC def mo leave file supplemental 1 19 21

Defendant’s notice of change in 6008 policy, January 19, 2021

AMC CMS notice re policy change 1 19 2021

Order denying pending motions w/o prejudice and setting further discovery, February 19, 2021

amc order denying motions w o prejudice

WISCONSIN

2017 SB 884 (as introduced 12/3/18), see sec. 26

Wisconsin-2017-SB884-Introduced

2017 SB 884 (as presented to the Governor 12/13/18), see sec. 26

sb884

2017 SB 886 (as introduced 12/3/18), see secs. 10 and 14

Wisconsin-2017-SB886-Introduced

2017 SB 886 (as presented to the Governor 12/13/18), see secs. 10 and 14

sb886

2017 SB 887 (as introduced 12/3/18)

17-6079_1

Litigation statutes as amended December 2018

Wisconsin litigation statutes as amended December 2018

Memo from Legislative Reference Bureau to Majority Leader Fitzgerald, 1/23/19

memorandum_on_gubernatorial_authority_under_ch_165

Letter from AG Kaul to Gov. Evers, 1/23/19

20190123163937771

Letter from AG Kaul to committee chairs, 1/24/19

190124kaulletter

League of Women Voters v. Knudson, Case No. 19 CV 84 (Dane Co. Circuit Court, 3/21/19)

Lameduck-Ruling

Wisconsin Court of Appeals stay order, 3/27/19

stay_order-final_19ap559

Wisconsin Court of Appeals order restricting enforcement of stay, 4/9/19

stay_order_-enforcement

Wisconsin Supreme Court order, 4/30/19

2019ap559o5_legis_mot_for_temp_relief4-30-19

Wisconsin Supreme Court opinion, 6/21/19

displaydocument

See also: San Francisco v. Barr, No. 18-17308

Opinion, July 13, 2020

9C SF v Barr opinion

Cert petition, No. 20-666

20201113170206407_20-___ – Barr v San Francisco Cert Petition

See also: New York v. Nos. 19-267 and 19-275

Opinion, Feb. 26, 2020

2C opinion 2 26 20

Rehearing en banc denial, July 13, 2020

2C rheb denial

New York State cert petition, No. 20-795

20201207185617048_No. 20-__ PetitionForAWritOfCertiorari NY v DOJ

New York City cert petition, No. 20-796

20201207174051249_Byrne JAG – cert petition – centered

General Assembly Tennessee petition for cert

20200313170336928_TN cert petition_3 13 2020_final

Notre Dame Law Review symposium on state standing

NDL501-Grove

NDL502-Young

NDL503-Hessick

NDL504-Mank

NDL505-Nash

NDL506-Woolhandler

NDL507-Mikos

NDL508-Crocker

NDL509-Davis

NDL510-Huq

Coronavirus federalism materials

Letter to Secretary Azar from Democratic AGs, April 3, 2020

CA NC COVID-19 healthcare exchange letter plus IA

6008

Families First Coronavirus Response Act, Pub. L. 116-127

PLAW-116publ127

Section 6008

6008

Section 6008, highlighting “such benefits”

6008 — such benefits

CMS FAQs, April 13, 2020

covid-19-section-6008-CARES-faqs_1

CMS FAQs, June 30, 2020

covid-19-new-faqs

National Health Law Program, The Maintenance of Effort Provision Protects Services, August 10, 2020

MOE-1-pager

CMS and other agencies, Additional Policy and Regulatory Revisions in Response to the COVID–19 Public Health Emergency, 85 Fed. Reg. 71,142 (Nov. 6, 2020)

2020-24332-1

CMS fact sheet and power point

covid-19-tech-factsheet-ifc-433400

allstatecall-20201029

Families USA analysis, November 17, 2020

MCD-463_Trump-Admin-and-Medicaid-Cuts-Issue-Brief_v2-12-8-20

Stimulus bill/omnibus bill, as released Dec. 21, 2020

BILLS-116HR133SA-RCP-116-68

Explanation of the Labor/HHS omnibus bill provisions, released Dec. 21, 2020

BILLS-116RCP68-JES-DIVISION-H

Explanation of the COVID-19 stimulus provisions, released Dec. 21, 2020

Summary of H.R. 133 Coronavirus Relief Provisions

Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 Yale Law Journal 534 (2011)

1032_qcrpe69v

What is more, the Supreme Court has suggested that the federalism clear-statement rule is of limited applicability when a federal regulatory regime is enforced through a statutory cooperative-federalism framework, as Section 7411(d) is. See AT&T Corp. v. Iowa Util. Board, 525 U.S. 366, 378 n.6 (1999) (noting appeals to States’ rights as “most peculiar” in the context of “a federal program administered by 50 independent state agencies”); see also Alaska Dep’t of Env’t Conservation v. EPA, 540 U.S. 461 (2004) (declining to adopt dissent’s proposed clear-statement rule for federal constraints on state implementation decisions in cooperative-federalism program). See generally Abbe Gluck, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 YALE L.J. 534, 555–556 (2011).

American Lung Ass’n v. EPA, Nos. 19-1140 et al. (D.C. Cir., Jan. 19, 2021), slip op. at 94

19-1140-1880546

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Carr v. Becerra, No. 3:22-cv-988 (D. Conn., filed August 3, 2022)

Complaint

merged_74147_-1-1666729403

Motion/memo for TRO, August 3, 2022

merged_94765_-1-1666729427

08/08/2022 19 ORDER: As set forth on the record during today’s conference, and consented to by the parties, by close of business today the defendant shall file on the docket a summary of its position as to the enforcement of 42 C.F.R. § 433.400(c)(2)(i)(B) as to Ms. Moore and Ms. Carr and what it has communicated to the State of Connecticut as to the same.

The defendant’s opposition to the plaintiffs’ motion for preliminary injunction shall be filed by 9/8/22. The plaintiffs’ reply brief shall be filed by 9/19. The Court will hold an evidentiary hearing on the plaintiffs’ motion for preliminary injunction on 9/27 at 9:30 am in Courtroom 3. To the extent necessary, the hearing will continue to 9/28.

Prior to 9/20, the parties shall confer regarding witnesses and exhibits for the hearing. By 5:00 PM on 9/20, the parties shall jointly file their witness and exhibit lists, and they shall indicate any objections the parties have to witnesses or exhibits. By noon on 9/22, the parties shall deliver to chambers two courtesy copies of all exhibits, each placed in a three-ring binder with a copy of the exhibit list at the front of the binder and each exhibit separately tabbed. The parties shall deliver the original set of exhibits along with an exhibit list to the Courtroom Deputy.

Signed by Judge Michael P. Shea on 8/8/22. (Constantine, A.) (Entered: 08/08/2022)

US notice re nonenforcement against Connecticut, August 8, 2022

Carr US notice re non enforcement v CT 8 8 22

08/08/2022 Set Deadlines as to 3 Emergency MOTION for Temporary Restraining Order and Preliminary Injunction MOTION for Preliminary Injunction. Responses due by 9/8/2022; Reply brief due by 9/19/2022 (Johnson, D.) (Entered: 08/11/2022)
08/08/2022 27 NOTICE of Evidentiary Hearing on Motion re: 3 Emergency MOTION for Temporary Restraining Order and Preliminary Injunction MOTION for Preliminary Injunction. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION.

Motion Hearing set for 9/27/2022 09:30 AM in Courtroom Three, 450 Main St., Hartford, CT before Judge Michael P. Shea
Signed by Judge Michael P. Shea on 8/8/22.(Johnson, D.) (Entered: 08/11/2022)

Amended complaint, August 26, 2022

Carr amended complaint 8 26

Motion for class certification, August 26, 2022

merged_39579_-1-1666729892

US opposition to TRO, September 8, 2022

Carr US TRO op 9 8

09/09/2022 47 NOTICE of Hearing on Motion re: 3 Emergency MOTION for Temporary Restraining Order and Preliminary Injunction MOTION for Preliminary Injunction, 44 MOTION to Certify Class of Plaintiffs Nationwide. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION.

Motion Hearing set for 12/2/2022, 12/5/22, 12/6/22 at 09:00 AM in Courtroom Three, 450 Main St., Hartford, CT before Judge Michael P. Shea.
Signed by Judge Michael P. Shea on 9/9/22.(Johnson, D.) (Entered: 09/12/2022)

09/10/2022 46 ORDER: Because of the Court’s trial schedule, including a currently ongoing trial that is taking longer than expected, and the Court’s other commitments, it is necessary to postpone the hearing on the plaintiffs’ motion for preliminary injunction. In addition, the Court notes that the plaintiffs recently filed a motion for class certification and finds that it would be in the interest of judicial economy to consolidate the hearing on that motion with the hearing on the motion for preliminary injunction. Further, a continuance of both hearings will give the parties an opportunity to conduct at least limited discovery prior to the hearing, which should enable the parties to conduct a more efficient and informative hearing. Accordingly, the Court hereby vacates its order (ECF No. 19 ) scheduling the hearing on the preliminary injunction motion for September 27 and 28, 2022, and schedules a consolidated hearing on the motions for preliminary injunction and class certification for December 2, 5, and 6, 2022. Proceedings will begin at 9am and conclude at 4pm. If the parties, after meeting and conferring, believe that the hearing is likely to be be concluded in two days, they shall filed a notice on the docket so indicating at least 14 days before the hearing. In that case, the Court will hold the hearing on December 5 and 6, 2022. The parties shall exchange exhibit and witness lists no later than 7 days before the hearing. They shall file such lists, with any objections noted by the adverse party and the legal grounds for such objections, on the docket three days before the hearing. They shall also each deliver to chambers two sets of exhibits in a three ring binder for the Court and the law clerk. The Court encourages the parties to work together to conduct any necessary discovery before the hearing.

Signed by Judge Michael P. Shea on 9/10/22. (Constantine, A.) (Entered: 09/10/2022)

Reply supporting preliminary injunction, September 19, 2022

merged_33858_-1-1666730232

Second Toubman declaration, September 19, 2022

Carr Toubman 2d af 9 19

US opposition to class certification, September 26, 2022

Carr US class cert op 9 26

09/29/2022 59 ORDER: The emergency motion for referral to a U.S. Magistrate Judge (ECF No. 57) and motion for modification of scheduling order (ECF No. 49) are DENIED, and the Emergency Motion for Temporary Restraining Order and Preliminary Injunction (ECF No. 3) — but NOT the motion for class certification (ECF No. 44) — is hereby referred for adjudication to United States District Judge Omar A. Williams, who is acting as duty judge in the Hartford seat of Court for the month of October. Shortly after this case was filed, this Court held a telephonic status conference on August 8, 2022, to discuss the motion for temporary restraining order and preliminary injunction. (See ECF Nos. 18 and 19.) At that conference, Defendant’s counsel stated, and confirmed in a notice filed after the conference (ECF No. 20), that the Defendant would inform the State of Connecticut that the Defendant would not enforce the challenged Interim Final Rule with respect to the two plaintiffs who were then seeking injunctive relief “until at least 15 days after the Court resolves the motion for preliminary injunction.” (ECF No. 20.) At the time, there were a total of three plaintiffs, all Connecticut residents. On August 26, 2022, however, the plaintiffs filed an amended class action complaint adding two more plaintiffs, one a resident of Nebraska and the other a resident of Delaware, and also sought, for the first time, to represent a nationwide class of similarly situated persons. (On the same day, plaintiffs filed a motion to certify the class, which is not yet fully briefed.) At a status conference held on September 20, 2022, the undersigned informed counsel that his trial schedule — including a murder trial and two long-scheduled and large civil trials, as well as a September trial that took longer than expected — would not permit the undersigned to devote the attention needed to these motions until at least December 5, and even then that the undersigned could not realistically finalize a ruling (or rulings) until January, 2023. Because Plaintiffs’ counsel indicated that urgent action was needed on the motion for temporary restraining order and preliminary injunction, including for the two new plaintiffs who reside outside Connecticut (see, e.g., ECF No. 49 at 2-3), the Court offered the parties two alternative options: (1) consenting to the jurisdiction of a U.S. Magistrate Judge for purposes of the entire case, which, as the Court informed counsel, would likely result in a more expeditious disposition than the undersigned could manage in light of his trial schedule; and (2) the undersigned’s referring this case to a U.S. Magistrate Judge for a recommended ruling on pending motions. The undersigned informed the parties that, with regard to option #1, they were not required to consent, and that option #2, though it might save some time by sparing the undersigned the need to conduct a hearing and providing the undersigned with recommendations, was not ideal from the standpoint of judicial economy and might not result in a final ruling significantly sooner than the undersigned’s own schedule would permit. Thereafter, the Defendant indicated that he would not consent to the jurisdiction of a Magistrate Judge. Upon further reflection, and after checking with the duty judge for the month of October, Judge Omar A. Williams, the undersigned has determined that the most efficient way to handle this case under these unusual circumstances — and the one with the highest likelihood of securing an expeditious disposition on the pending motion for temporary restraining order and preliminary injunction — is to refer that motion, and that motion alone, to Judge Williams for decision. That motion, if it has merit, is the most urgent matter pending in the case, and the Court’s duty judge system is designed to offer an alternative for handling urgent matters — but only urgent matters — when the presiding district judge is unavailable on an urgent basis, as is the case here. Although the undersigned previously found that it would be in the interest of judicial economy to consolidate the hearing on the motion for preliminary injunction with a hearing on the motion for class certification, the undersigned has reconsidered that determination. While the plaintiffs have suggested that all class members are facing the same irreparable harm, that remains to be seen, and the motion for class certification does not attach any evidence from prospective class members (other than the named plaintiffs themselves) showing that their current situations evince irreparable harm; this point is salient because the Interim Final Rule being challenged was adopted almost two years ago, and the declarations filed by the named plaintiffs suggest that the rule may have had different impacts on them at different times (to the extent it caused the States involved to send the notices described in the declarations). While that does not necessarily mean that all prospective class members cannot show irreparable harm, it likely does mean that there would need to be some showing to that effect for the Court to grant injunctive relief on a class-wide basis. For all these reasons, the Court will not refer the motion for class certification to Judge Williams at this time but will keep the December 5 hearing date in place to entertain argument on that motion. The undersigned thanks Judge Williams for stepping in to the handle the motion for injunctive relief with respect to the named plaintiffs.

Signed by Judge Michael P. Shea on 9/29/2022. (Davis, Christina) (Entered: 09/29/2022)

10/04/2022 60 ORDER. A hearing on the Emergency Motion for Temporary Restraining Order and Preliminary Injunction (ECF No. 3 ) will be held on October 26, 2022 at 10:00 A.M.. The parties shall exchange exhibit and witness lists no later than 7 days before the hearing. Three days before the hearing, they shall file on the docket such exhibit and witness lists, along with any objections noted by the adverse party (and the legal grounds therefor). Also, each party shall deliver to chambers two sets of exhibits in a three ring binder, for the court and for the law clerk. Signed by Judge Omar A. Williams on 10/4/2022. (Mamillapalli, S.). (Entered: 10/04/2022)

US motion to extend time to respond to complaint, October 6, 2022

Carr US xt mo respond complaint 10 6

Plaintiffs’ opposition to extension, October 7, 2022

Carr pltf op US xt 10 7

Plaintiffs’ reply supporting class certification, October 11, 2022

Carr reply supporting class cert 10 11

[]

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KENTUCKY TENNESSEE ARPA COERCION CASE

Kentucky v. Yellen, No. 3:21-cv-17 (E.D. Ky.)

[]

Opinion, judgment, September 24, 2021

4951929-0–92772

4951938-0–92775

Notice of appeal, November 22, 2021

KY v Y noa 11 22

Sixth Circuit # 21-6108

[Opening brief due 1/18, responsive brief due 2/17]

US opening brief, January 18, 2022

6C KY v Yellen US OB 1 18

Kentucky Tennessee appellee brief, March 10, 2022

6C KY v Yellen KY appellee br 3 10

Chamber of Commerce of the US amicus, March 11, 2022

6C KY v Yellen C of C amicus 3 11

National Taxpayers Union amicus, March 16, 2022

6C KY v Yellen NTUF amicus 3 16

New Civil Liberties Alliance amicus, March 17, 2022

6C New Civil Lib amicus 3 17

Arizona amicus, March 17, 2022

6C KY v Yellen AZ amicus 3 17

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TEXAS ARPA COERCION CASE

Texas v. Yellen, No. 2:21-cv-79 (N.D. Tex., filed May 3, 2021)

Complaint

TX v. Yellen complaint

US motion to dismiss, July 19, 2021

TX v. Yellen US mo dism

Corrected scheduling order, August 20, 2021

TX v. Yellen corrected scheduling order 8 20

Order granting Paul Clement pro hac vice, August 23, 2021

TX v. Yellen pro hac vice order 8 23

States’ opposition to motion to dismiss and cross-motion for summary judgment, September 27, 2021

TX v Y TX op cross mo

TX v Y TX op cross ms 9 27

Chamber of Commerce of the US amicus, October 4, 2021

C of C of US amicus 10 4

National Taxpayers’ Union amicus, October 4, 2021

NTU amicus 10 4

Goldwater Institute amicus, October 4, 2021

Goldwater amicus 10 4

New Civil Liberties Alliance amicus, October 4, 2021

NCLI amicus 10 4

US motion for summary judgment, October 25, 2021

US SJ mo 10 25

US SJ ms 10 25

States’ reply, November 8, 2021

States’ reply 11 8

States’ notice of additional authority (West Virginia), November 17, 2021

States addl auth WV 11 17

Order denying motion to dismiss, March 4, 2022

TX v Yellen order denying mo dism 3 4

Unopposed motion to stay answer date, March 8, 2022

TX v Yellen unop mo stay answer 3 8

Order staying answer date, March 8, 2022

TX v Yellen stay answer 3 8

Opinion, April 8, 2022

TX v Yellen opinion 4 8

Final judgment, April 8, 2022

TX v Yellen final judgment 4 8 22

++

Gruver v. Louisiana Bd. of Supervisors, 959 F.3d 178 (5th Cir. 2020), cert. denied, No. 20-494 (Dec. 7, 2020) (argued in Texas v. Yellen)

Gruver opinion 5 12 20

Cert petition, Oct. 9, 2020

20201009143253137_Petition

Waiver of right to respond, Nov. 4, 2020

20201104151147959_Waiver of Response to Petition for Writ of Certiorari

Nov 10 2020 DISTRIBUTED for Conference of 12/4/2020.
Dec 07 2020 Petition DENIED.

++

Mayhew v. Burwell, No. 14-1300, 772 F.3d 80 (1st Cir. 2014)

Mayhew v. Burwell opinion 2014

Cert denied, No. 14-992 (June 8, 2015)

++

Mississippi Comm’n on Environmental Quality v. EPA, 790 F.3d 198 (D.C. Cir. 2015)

Nos. 12-1309 et seq

DCC MSCEQ v EPA opinion 2015