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Ass'n of American Physicians & Surgeons v. Burwell

The Association of American Physicans & Surgeons, Inc. ("AAPS") and the Alliance for Natural Health-USA ("ANH-USA") have challenged the Patient Protection and Affordable Care Act ("ObamaCare") as well as other related actions by the federal government. The case was stayed while the state and National Federal of Independent Business ("NFIB") lawsuit wound its way through the Supreme Court and a related case would its way through the D.C. Circuit. After the Supreme Court decided the NFIB case, the district court lifted the stay and dismissed the AAPS/ANH-USA action. The case is currently on appeal in the D.C. Circuit.

Because their lawsuit raises constitutional defects with ObamaCare that neither the Supreme Court nor the parties addressed in the NFIB litigation, AAPS and ANH-USA contend that the NFIB decision did not resolve their claims:

"Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents."

Cooper Indus., Inc. v. Aviall Serv., Inc., 543 U.S. 157, 170 (2004) (quoting Webster v. Fall, 266 U.S. 507, 511 (1925)); Waters v. Churchill, 511 U.S. 661, 678 (1994) (“cases cannot be read as foreclosing an argument that they never dealt with”). The additional AAPS/ANH-USA arguments relate to the constititional requirements for taxation (e.g., the Fifth Amendment, the Orgination Clause, and the requirement for national uniformity in excise taxation), now that the Supreme Court has held that Congress lacks authority to impose ObamaCare under any enumerated power other than the power to tax.

Supreme Court (Nos. 13A699, 14A67 & 14-350, U.S.)

  • 2014-01-03    AAPS/ANH-USA emergency application for injunction pending appeal and accompanying appendix
  • 2014-01-06    Application (13A699) denied by the Chief Justice.
  • 2014-07-18    Deadline for petitioning for a writ of certiorari extended to September 25, 2014
  • 2014-09-25    Petition for writ of certiorari and accompanying appendix (response and amicus briefs due October 27, 2014)
  • 2014-10-27    Amici curiae brief of Citizens’ Council for Health Freedom et al. in support of petitioners
  • 2014-11-26    Brief in opposition of HHS et al.
  • 2014-12-09    Reply brief of AAPS/ANH-USA in support of petition for a writ of certiorari
  • 2014-12-10    Distributed for Conference of January 9, 2015

Court of Appeals (No. 13-5003, D.C. Cir.)

  • 2013-03-07    AAPS/ANH-USA notice of supplemental authority on impending CMS activation of PECOS claim denials
  • 2013-03-13    AAPS/ANH-USA emergency motion for interim relief and addendum to motion
  • 2013-03-28    HHS oppposition to AAPS/ANH-USA emergency motion
  • 2013-04-08    AAPS/ANH-USA reply in support of emergency motion for interim relief
  • 2013-04-17    Court order denying motion for interim relief
  • 2013-06-21    AAPS/ANH-USA opening brief and addendum
  • 2013-07-11    AAPS/ANH-USA notice of supplemental authority on Horne v. Dep't of Agriculture
  • 2013-07-11    AAPS/ANH-USA notice of supplemental authority on blog posting on one-year suspension of employer mandate
  • 2013-07-15    AAPS/ANH-USA notice of supplemental authority on Koontz v. St. Johns River Water Mgmt. Dist.
  • 2013-07-15    AAPS/ANH-USA notice of supplemental authority on Center for Biological Diversity v. EPA  
  • 2013-07-15    AAPS/ANH-USA notice of supplemental authority on Liberty Univ. v. Merrill
  • 2013-07-15    AAPS/ANH-USA notice of supplemental authority on United States v. Windsor
  • 2013-07-22    HHS opposition brief
  • 2013-08-09    AAPS/ANH-USA reply brief
  • 2013-08-12    Joint Appendix
  • 2013-11-18    Court's order scheduling oral argument before Judges Garland, Rogers, and Williams Friday, 01/10/2014 a.m.
  • 2013-12-02    Court's order filed changing oral argument panel: Judges Rogers, Williams, Sentelle, Friday, 01/10/2014 a.m.
  • 2013-12-30    Court's order assigning 20 minutes per side before Judges Rogers, Williams, Sentelle, Friday, 01/10/2014 a.m.
  • 2013-12-30    AAPS/ANH-USA notice of supplemental authority on renewed CMS activation of PECOS claim denials
  • 2014-01-06    AAPS/ANH-USA notice of supplemental authority on Circuit Justice's denial of injunction pending appeal
  • 2014-01-13    AAPS/ANH-USA notice of supplemental authority on theory of forfeiture raised at oral argument
  • 2014-03-07    Court's decision
  • 2014-04-21    AAPS/ANH-USA petition for rehearing and addendum
  • 2014-04-28    Court's order denying petition for rehearing

District Court (No. 1:10-0499-ABJ, D.D.C.)

  • 2010-03-26    Initial complaint
  • 2010-08-23    First amended complaint
  • 2010-09-13    Second amended and supplemental complaint
  • 2010-11-22    Government's motion to dismiss
  • 2011-01-11    AAPS/ANH-USA opposition to motion to dismiss
  • 2011-02-14    Government's reply in support of motion to dismiss
  • 2102-07-27    Government's response to Court's request for briefing on related cases in D.C. Circuit and Supreme Court
  • 2102-07-27    AAPS/ANH-USA's response to Court's request for briefing on related cases in D.C. Circuit and Supreme Court
  • 2012-10-12    Government's response to Court's request for briefing on Takings
  • 2012-10-19    AAPS/ANH-USA's response to Court's request for briefing on Takings
  • 2012-10-31    Court's Decision
  • 2012-12-28    AAPS/ANH-USA's notice of appeal
Contact for AAPS: Jane Orient, Executive Director
Contact for ANH-USA: Gretchen DuBeau, Executive Director and General Counsel