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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION DR. ORLY TAITZ, ESQ., Plaintiff, v. KATHLEEN SEBELIUS, Secretary, Health and Human Services, et al., Defendants.

Case No. 3:12-cv-03251-P

REPLY IN SUPPORT OF FEDERAL GOVERNMENT DEFENDANTS MOTION TO DISMISS INTRODUCTION In moving to dismiss Plaintiffs complaint, defendants Obama, Sebelius, Astrue, Holder, and Chatfield provided this Court with a series of reasons why Taitzs claims must be dismissed: she has failed to establish jurisdiction, venue is improper in this district, and she has stated no claim upon which relief can be granted. In her response, Taitz fails to demonstrate otherwise, to the extent she even responds to the defendants arguments. Her claims should be dismissed. ARGUMENT I. Taitz Has Not Shown That Venue Is Proper in This District Taitz fails to cure her failure to establish venue in this district. While her response brief only adds confusion to whether her claims against certain government officials are for actions taken in their official or personal capacity, what is clear is that her complaint itself does not demonstrate that venue is proper in the Northern District of Texas. Her complaint asserts that venue is proper in the Central District of California, see Compl. 6, and she cannot cure that failure with unsubstantiated assertions made only in a responsive brief.

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II.

Taitzs Challenges to the Minimum Coverage Provision Must Be Dismissed A. The Court Lacks Jurisdiction Over Taitzs Challenges Because She Lacks Standing At the heart of Taitzs complaint are her challenges to the minimum coverage provision,

and in particular the scope of its religious conscience exemption, which exempts certain individuals who are members of religious groups that are conscientiously opposed to the acceptance of the benefits of insurance and who provide for their own dependent members. With citation to numerous cases, many involving Taitz herself, the defendants motion explained that Taitz lacks standing because her allegations do not plead an injury-in-fact. In response, Taitz ignores the case law, but alleges for the first time that she does not belong to a religious group or sect and will be subject to Obamatax. Any such penalty is imminent. Pl.s Oppn 4. This comes nowhere close to showing a cognizable injury-in-fact. Most importantly, Taitz has not even indicated whether she currently has insurance, nor does she allege that she will be non-compliant with the minimum coverage provision when it takes effect. She does not allege that she is currently required to take any action to avoid or prepare for the assessment of the penalty. And while she claims that the penalty is imminent, it is not, as it would not be assessed until 2014. Her allegations thus fall short of demonstrating standing to challenge the provisions constitutionality, because she does not articulate a basis for how the provision will apply to her. See, e.g., Walters v. Holder, Case No. 2:10-cv-76, 2012 WL 3644816, at *3 (S.D. Miss. Aug. 23, 2012) (dismissing challenge for lack of standing when the record contains no evidence that [plaintiffs] are or will be affected by the minimum coverage provision); Bellow v. U.S. Dept of Health & Human Servs., Case No. 1:10-cv-165, 2011 WL 2462205, at *1 (E.D. Tex. June 20, 2011) (adopting magistrates recommendation that case be dismissed given plaintiffs allegation only of a generalized grievance). 2

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Taitz argues, instead, that she has taxpayer standing. As an initial matter, Taitz is wrong in suggesting that another court has ruled that she has taxpayer standing to challenge the enactment of the Affordable Care Act. See Pl.s Oppn 4-5. Instead, the court recognized that, while taxpayer standing supports some challenges under the Establishment Clause, Taitz herself had failed to raise her claim in a timely manner, and her argument need not be considered. Taitz v. Obama, 754 F. Supp. 2d 57, 61 (D.D.C. 2010) (Contrary to plaintiffs assertion, the Court did not state that plaintiff could proceed under the Establishment Clause. The Court simply recognized that taxpayer standing may be sufficient in an Establishment Clause challenge to government action. Regardless, plaintiff cannot use her Rule 60(b) motion to raise legal arguments that were available to her at the time of filing.). While that court did not need to reach the issue, here Taitz fails to satisfy even the basic requirements of taxpayer standing. As a general rule, Article III standing cannot be based on a plaintiffs mere status as a taxpayer. Arizona Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442 (2011). The effect upon future taxation [resulting from] any payment out of funds [is] too remote, fluctuating and uncertain to give rise to a case or controversy. Id. at 1443 (citations omitted). Moreover, a taxpayer-plaintiffs interest in the moneys of the Treasury is too generalized to support Article III standing because it is necessarily shared with millions of others. Id. Flast v. Cohen, 392 U.S. 83 (1968), recognized a narrow exception to that general rule, Arizona Christian, 131 S. Ct. at 1445 (citation omitted), for cases involving challenges to government action under the Establishment Clause.1 That exception applies where

As Taitzs brief suggests, taxpayer standing would at most provide a basis for her Establishment Clause claim. See Pl.s Oppn 5-6. See Hein, 551 U.S. at 609-10 ([T]he Flast exception has largely been confined to its facts. We have declined to lower the taxpayer standing bar in suits alleging violations of any constitutional provision apart from the 3

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there is a logical link between the plaintiffs taxpayer status and the type of legislative enactment attacked. Id. (citations omitted). In Arizona Christian, the Supreme Court emphasized the requirement that a taxpayer have a direct and particular connection with the establishment of religion by having his or her tax dollars extracted and spent in furtherance of that establishment. 131 S. Ct. at 1447. Here, Taitz lacks standing for the simple reason that she is not challenging any actual expenditure or use of funds. The provision Taitz challenges does not result in any expenditure of taxpayer money. To the extent that the minimum coverage provision raises revenue, it is like the statute in Hein in that Congress provided general appropriations to the Executive Branch, but did not expressly authorize, direct, or even mention expenditures in support of religious purposes. See Hein, 551 U.S. at 605. The answer to the central question in Arizona Christian were government funds extracted and spent for allegedly religious purposes? is thus no. For these reasons, Taitz has failed to establish standing over her challenges to the minimum coverage provision. B. Taitzs Challenges to the ACA Fail to State a Claim Upon Which Relief May Be Granted Even if the Court does look to the merits of Taitzs ACA claims, they fail for the reasons set forth in the defendants motion. Rather than respond to the decades of case law recognizing the constitutionality of the religious conscience exemption, Taitz continues to misinterpret the provision and make misguided sociological arguments that contribute nothing to the questions before the Court. The case law is clear and correct and Taitzs claims are without merit.

Establishment Clause.). She makes no further argument as to how she could have standing to raise her other ACA challenges. 4

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In her brief, Taitz does not dispute that the exemption at 26 U.S.C. 1402(g)(1) (incorporated into the minimum coverage provision by 26 U.S.C. 5000A(d)(2)(A)) is a longstanding provision of the law. She does not dispute that the exemption applies only to individuals who are members of, and adhere to the tenets of, a religious sect or division thereof that is conscientiously opposed to acceptance of the benefits any private or public insurance . . . . 26 U.S.C. 1402(g)(1). And she does not dispute that every single federal court to consider the exemptions constitutionality, including the Supreme Court, has upheld the provision. See Defs. Mot. 12 (collecting cases). Taitzs only argument in response is factual in nature. She asserts that new groups can apply for the exemption, and she offers a question: What if a religious group or sect declares that they are opposed to income tax, would the other taxpayers have to carry on their shoulders all the taxation for such a group? Pl.s Oppn 9. Indeed, the scope of the religious conscience exemption is not rigidly limited to particular named religious groups. But Taitzs entire argument amounts to a contention claim that certain individuals who have not availed themselves of the exemption at Section 1402(g)(1) in the forty-plus years it has existed will do so now. Such a speculative, uncertain claim provides no basis for relief, but it also demonstrates that she has no real understanding of the statutes operation. The religious conscience exemption does not apply to individuals who are opposed to income tax, as she says. Rather, it applies when members of a religious sect or division thereof are conscientiously opposed to acceptance of the benefits of any private or public insurance. . . . 26 U.S.C. 1402(g)(1). And by asserting that exempt individuals will shift the costs of their care to others, Taitzs misunderstanding of the law leads her to drastically overstate the effects of the exemption. Taitz argues that, by having to pay for insurance when other religious groups do not, she will end up paying for the health care

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needs of Muslims and other exempt individuals. Pl.s Oppn 10-14. But, as the defendants motion explained, Taitz is ignoring that the exemption is tailored to groups that provide for the health care needs of their own members. See Defs. 14 & n.6. This point is important because it shows that Congress was attempting to accommodate the religious beliefs of those individuals who very likely would not incur the uncompensated care that leads to the cost-shifting Congress was concerned about. To the extent that other individuals satisfy the terms of the exemption, they would not raise the concerns set forth in Taitzs complaint and briefing. This renders Taitzs troubling and misguided discussion of demographics wholly beside the point. The Court need not go further down the rabbit hole of Taitzs argument, however, because, while factually flawed, it has little to do with the law. Taitz asserts that the minimum coverage provision violates her rights to equal protection, under the Fifth and Fourteenth Amendments, and her rights under the free exercise and establishment clauses of the First Amendment. See Compl. 4-9, 11-15. While the defendants motion discussed at length the decades of case law that have rejected such challenges to the religious conscience exemption, see Defs. Mot. 11-15, Taitz ignores those cases. Taitzs flippant dismissal of precedent does not distinguish the case law in any way or otherwise provide a legal foundation for her claims. The defendants motion argues not only that the religious conscience exemption has existed for some time, but that the courts that have upheld its constitutionality up to and including the Supreme Court have been correct in doing so. By completing ignoring the precedent, Taitz provides no reason to find otherwise. III. The Court Lacks Jurisdiction Over Taitzs Challenge to the Presidents Eligibility In challenging the constitutionality of the minimum coverage provision, Taitz makes a related claim asserting that the ACA was signed by a President ineligible to serve in that office.

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In response, the defendants argued that the Court lacks jurisdiction, both because Taitz lacks standing and because the claim presents a non-justiciable political question. These arguments should be familiar to Taitz, as she has been found to lack standing to raise similar claims on numerous occasions. See, e.g., Taitz v. Obama, 707 F. Supp. 2d 1 (D.D.C. 2010) (dismissing Taitzs challenge to the Presidents eligibility to sign the ACA, after finding that a generalized grievance of the type Taitz raises is insufficient to confer standing). In her brief, though, Taitz completely ignores both arguments. Instead, she dedicates nine pages to the merits of her claim. See Pl.s Oppn 14-23. Because Article III standing is jurisdictional, a court must determine whether the plaintiff has standing before addressing the merits.2 See Steel Co. v. Citizens for Better Envt, 523 U.S. 83, 94-95 (1988). Taitz plainly lacks standing and does not even argue otherwise and the Court should dismiss her claim. IV. Taitzs RICO Claim Should Be Dismissed As Duplicative and Without Merit Finally, Taitz has also ignored the defendants arguments with respect to her RICO claim: that she is improperly attempting to litigate duplicative claims in multiple courts, and that her claim is, in any event, wholly without merit. Instead, Taitz notes that she is petitioning to the Judicial Panel on Multidistrict Litigation (JMPL) for this case to be consolidated with cases

To be clear, more than a century of case law shows that Taitzs argument on the merits is simply incorrect. See, e.g., United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898) (Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States.); Drake v. Obama, 664 F.3d 774, 778 n.2 (9th Cir. 2011) ([T]he Citizenship Clause of the Fourteenth Amendment [confers] citizenship on anyone born in the United States, regardless of his parents citizenship.); Tisdale v. Obama, No. 3:12-cv-00036, Dkt. 2 (E.D. Va. Jan. 23, 2012), affd, 473 Fed. Appx. 203 (4th Cir. 2012) (It is well settled that those born in the United States are considered natural born citizens and challenges to President Obamas eligibility are without merit.); Hollander v. McCain, 566 F.Supp.2d 63, 66 (D.N.H. 2008) (Those born in the United States, and subject to the jurisdiction thereof have been considered American citizens under American law in effect since the time of the founding and thus eligible for the presidency.) (internal quotations omitted). 7

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she brought in the Southern District of Mississippi and the Central District of California.3 See Pl.s Oppn 23. Taitz misses the point of the JPML; it enables the coordination of similar claims properly filed in different districts, but it is not intended to allow a single plaintiff to bring duplicative claims against the same defendants in multiple courts. Taitz seems to recognize, and at least does not dispute, that the RICO claim she brings here and in Mississippi are largely identical, and that the Mississippi case was filed first. As the defendants motion noted, [t]he cases are legion that a party may not institute new actions duplicating existing litigation. Chinn v. Giant Food, Inc., 100 F. Supp. 2d 331, 333 (D. Md. 2000). Taitz offers no reason to allow her to proceed with RICO claims in two separate cases consolidated or not and her RICO claim here should be dismissed. CONCLUSION For the foregoing reasons, and the reasons stated in Federal Defendants motion, Taitzs complaint should be dismissed.

3

Relatedly, Taitz recently filed with this Court a copy of a Motion to Coordinate and Consolidate Cases Under 28 USC 1407(C)(II), which she has also filed with the JPML. In that petition, Taitz seeks the consolidation of this case and two others Judd v. Obama, Case No. 8:12-cv-1507-DOC (C.D. Cal.); and Taitz v. Democrat [sic] Party of Mississippi, Case No. 3:12-cv-00280 (S.D. Miss.). The Clerk of the JPML has notified Taitz that her initial filing included numerous major deficiencies, and gave her until October 26, 2012 to cure those deficiencies. See MDL Case No. 2417, Dkt. 3 (Oct. 12, 2012). In any event, her petition is without merit, and it provides no basis for this Court to refrain from dismissing her claims. See Curtis v. BP America, Inc., 808 F. Supp. 2d 976, 978 (S.D. Tex. 2011) (The pendency of a motion to transfer before the JPML does not divest a court of jurisdiction over the case.); JPML Rule of Procedure 2.1(d), available at http://www.jpml.uscourts.gov/sites/jpml/files/Panel%20Rules-Amended-7-6-2011.pdf (The pendency of a motion . . . pursuant to 28 U.S.C. 1407 does not affect or suspend orders and pretrial proceedings in any pending federal district court action and does not limit the pretrial jurisdiction of that court.). In fact, since she filed her petition, Judge David O. Carter issued an order dismissing Taitzs California litigation for lack of subject matter jurisdiction, on the ground that the plaintiffs had removed their own case from California State Superior Court. See Judd, Case No. 8:12-cv-1507-DOC (C.D. Cal.), Dkt. 34, Order of Oct. 17, 2012. 8

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Dated: October 29, 2012.

Respectfully submitted, STUART F. DELERY Acting Assistant Attorney General SHEILA M. LIEBER Deputy Director, Federal Programs Branch /s/ Scott Risner SCOTT RISNER (MI Bar #P70762) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20530 Telephone: (202) 514-2395 Facsimile: (202) 616-8470 E-mail: scott.risner@usdoj.gov Attorneys for Federal Government Defendants

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CERTIFICATE OF SERVICE I certify that, on October 29 2012, I electronically filed the foregoing document with the Clerk of Court for the United States District Court for the Northern District of Texas using the Courts electronic case filing system. That system sends a Notice of Electronic Filing to the following pro se plaintiff: Orly Taitz 29839 Santa Margarita Parkway, Suite 100 Rancho Santa Margarita, CA 92688 /s/ Scott Risner Scott Risner