Already, the United States Court of Appeals, on its own motion, has directed the Government fifteen days within which to file a response.  This is the first indication the Court may well grant our Motion for a Rehearing En Banc.  Generally, no responses are ordered to be filed.  That the Court has done so – and less than eighteen hours after the Petition was filed – indicates a strong interest in the matter.

This lawsuit continues to demonstrate the difficulty ordinary citizens have in challenging bureaucratic overreach.  It was in 1993 that bureaucrats changed the procedure manual used to administer Social Security and Medicare benefits.  The changes that force retirees to enroll in Medicare as a condition of receiving Social Security Retirement Benefits, were made without reference to the statutes, nor with public comment.  Since then they have had the force of law.

It took 15 years to muster the attorneys, plaintiffs, and funds to pursue this case.  October 9, six months from now, will mark the four year anniversary of filing the lawsuit in the United State District Court, District of Columbia.

We thank everyone for your continued interest and support.  Please consider making a donation to help move this case forward.  DONATE HERE

Text of the Petition for Rehearing: http://thefundforpersonalliberty.org/pdf/120322-Petition-for-Rehearing-en-bank.pdf

The majority opinion answered a question that was never asked.  They held that the plaintiffs could not revoke their entitlement.  This was never the plaintiffs’ objective, the plaintiffs wished to not avail themselves of their entitlement.  This is like a child who is entitled to a public education, but chooses instead a private education.  The child never loses the entitlement and would not want to.  People want more options, not fewer.

The good news is that the dissenting judge wrote a very clear opinion that did answer our question and gave us reason to believe that she would champion our cause if we should request a rehearing en banc (before the entire 11-judge panel).

We are, therefore, preparing to request a rehearing.

The full text of the opinion is here: http://thefundforpersonalliberty.org/pdf/120207-1356903-Appeals-Court-Opinion.pdf

The most common question I’m asked is, “Why would someone not want to participate in a free program after paying a taxes for decades?”  Terry C. of Nevada wrote:

Like co-plaintiff John Kraus, Terry’s HSA is “moribund.” By mandating participation in Medicare,  retirees who set aside funds for future medical expenses lose their ability to freely direct their health care dollars.  We argue that this is unconstitutional.

For the entire update: http://thefundforpersonalliberty.org/email/Update-110919-All-Briefs-Filed.html

Oral arguments are scheduled for October 13, 2011, in the Washington, DC, US Court of Appeals.

The brief may be viewed here: http://thefundforpersonalliberty.org/pdf/110907-1328046-Appeals-Court-Reply.pdf

And all court documents may be accessed here: http://thefundforpersonalliberty.org/about/medicare-lawsuit/medicare-lawsuit-timeline-with-documents/

The brief may be viewed here: http://thefundforpersonalliberty.org/pdf/110726-1320692-Appeals-Court-Brief.pdf

And all court documents may be accessed here: http://thefundforpersonalliberty.org/about/medicare-lawsuit/medicare-lawsuit-timeline-with-documents/

Court of Appeals Update

We have been notified that we must file our first Court of Appeals brief by July 26, 2011. The brief will be a hard-hitting 30 pages challenging the lower court’s opinion that being “entitled” to Medicare created a “mandatory” benefit. Left as a precedent, bureaucratic overreach could lead to ever more mandates forcing us to participate in government programs.

One Goal Met, One Not

We met the June donation goal of $10,000 before the end of the month.  Thank you donors!  Please keep the donations coming, we need more than $100,000 before the end of the calendar year to cover attorney and court costs.

Some donors reported issues with our online donation system. Please call if you have any problems, I have not been able to reproduce the problem.

Our other goal of doubling our mailing list is about 1% complete! Please ask your friends to subscribe and follow our lawsuit. As you know, we rarely send more than two emails in one month; often an entire month will pass without communication. I promise I will not spam your friends. It’s easy to subscribe and they can opt out any time they want.

Wishing you the best,

Martha

Notice is hereby given this 22nd day of March, 2011, that Plaintiffs, Brian Hall, Lewis Randall, Norman Rogers, John Kraus and Richard K. Armey, hereby appeal to the Untied States Court of Appeals for the district of Columbia Circuit from the Judgment and Order of this court entered on the 16th day of March, 2011 in favor of Defendants, Kathleen Sebelius, Secretary of the United States Department of Health and Human Services, and Michael J. Astrue, Commissioner of the Social Security Administration, and against the Plaintiffs; in addition, Plaintiffs, Lewis Randall and Norman Rogers, hereby appeal to the United States Court of Appeals for the District of Columbia Circuit from that part of the Order of this court, entered on September 29, 2009, that dismissed Lewis Randall and Norman Rogers from the case for lack of standing.

The Filed Document

FEDERAL DISTRICT COURT JUDGE RULES ALL SENIORS RECEIVING
SOCIAL SECURITY MUST PARTICIPATE IN MEDICARE PART A OR
FORFEIT PAST AND FUTURE RETIREMENT BENEFITS

Plaintiffs Announce Intent to Appeal; 
Case Highlights Extent of Bureaucratic Overreach in Healthcare

Washington, DC – A federal District Court judge [Rosemary Collyer] has dismissed a two-and-a-half year lawsuit charging the Social Security Administration (SSA) and Department of Health and Human Services (HHS) with adopting policies that deny otherwise eligible retirees their rightful Social Security benefits if those retirees choose not to enroll in Medicare. The lawsuit, known as Hall v. Sebelius, was originally filed October 9, 2008.

“Anyone concerned with what will happen when the bureaucrats start writing the thousands of pages of rules that will govern the ‘Patient Protection and Affordable Care Act’ need only look at what has happened in Hall v. Sebelius,” said Kent Masterson Brown, lead attorney in the case. “When they do, they will realize nothing will be optional and there will be no fair, affordable or swift manner to obtain recourse or appeal a decision made by the bureaucracy.”

The plaintiffs announced this morning their intent to appeal the decision “even if it takes them two-and-a-half more years to win the right to make their own healthcare choices, rather than be beholden to a bureaucracy that knows and cares nothing about their individual circumstances,” Brown said.

Judge Collyer’s decision, he said, “provides a novel, new interpretation of what a federal ‘entitlement’ is. Based on her ruling, an entitlement is now an obligation. If an individual is entitled to certain federal benefits, he or she under this decision would now be obligated to accept them. A low-income family, hypothetically, could be required to accept housing and food assistance if that family qualifies – even if the members of that household have objections to accepting public assistance. That, in effect, is the meaning of this ruling.”

The original three plaintiffs in Hall v. Sebelius were seniors Brian Hall of Catlett, Va., a retired employee of the Department of Housing and Urban Development (HUD); Lewis Randall of Whidbey Island, Wash., near Seattle, a member of the board of directors of E*Trade; and Norman Rogers of Miami, Fla., retired founder and CEO of Rabbit Semiconductor, Davis, Calif. Former House Majority Leader Richard K. (“Dick”) Armey and retired Navy civilian engineer John J. Kraus of Plymouth Meeting, Pa., near Philadelphia, joined the lawsuit in an amended complaint filed December 2008.

In their complaints, the plaintiffs alleged that 1993 and 2002 rules added by the Social Security Administration to its “Program Operations Manual” are illegal. Those rules state, in effect, that any retiree who elects to opt out of Medicare Part A will automatically lose his or her Social Security retirement benefits and will be forced to repay any Social Security benefits received prior to opting out of Medicare Part A.

Their lawsuit argues that:

• The Social Security Act and Medicare Act state clearly that applying for Social Security monthly benefits and enrolling in Medicare are voluntary and that the applications for each of these programs are not dependent on the application for the other. For the new SSA rules to make enrolling in Medicare mandatory violates the Social Security Act and Medicare Act as well as Article I, Section 1 of the Constitution.
• Forced participation in Medicare infringes on a citizen’s right to privacy and violates that individual’s right to make necessary choices about his or her own health care, and, accordingly, violates the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the Constitution.
• The new SSA rules were put into place without undergoing the required “notice” and “comment” rule-making requirements. The policies should have been published in the Federal Register and open to comment by the general public prior to implementation. Not doing so violates the federal Administrative Procedure Act.

In dismissing the case, Judge Collyer said “Requiring a mechanism for Plaintiffs and others in their situation to ‘disenroll’ would be contrary to congressional intent, which was to provide ‘mandatory’ benefits under Medicare Part A for those receiving Social Security Retirement benefits.”

“Plaintiffs are trapped in a government program intended for their benefit. They disagree and wish to escape. The Court can find no loophole or requirement that the Secretary provide such a pathway,” she concluded.

“Judge Collyer’s decision is without legal merit and defies all logic,” said Brown. “She says that ‘entitlement’ under Medicare Part A ‘is a different type of entitlement because of its automatic nature.’ I had no idea the word ‘entitlement’ ever meant mandatory. In all the Anglo-American literature and the corpus of judicial opinions throughout this Country’s history, ‘entitled’ has always meant what the dictionary says it means: ‘to qualify or to give a right to or to give proper grounds for seeking or claiming something.’ How can there be ‘a different type of entitlement?’”

###

110321 Press Release (pdf)

110316 Opinion Denying Seniors Avenue to Opt Out of Medicare (pdf)

To amend title XVIII of the Social Security Act to clarify the use of private contracts by Medicare beneficiaries for professional services and to allow individuals to choose to opt out of the Medicare part A benefits.

The Fund for Personal Liberty wishes the congressman and the bill’s cosponsors the best.

The Department of Justice, defending the Department of Health and Human Services, has made every effort to stall, derail, and sidetrack an effort by five citizens to regain the freedom to choose their health insurance after they start collecting Social Security.  In 1993, HHS made a change to the manual used to administer Social Security and Medicare that forces Social Security recipients to enroll in Medicare, Part A, or forgo their Social Security benefits.  The change is contrary to the statutes signed into law, is an example of bureaucratic overreach, and amounted to a “taking” on the part of the government.

The plaintiffs have exhibited incredible patience over the past 29 months as they survived one attempt after another by the government to thwart their lawsuit.  Thank you Brian Hall, Norm Rogers, Lew Randall, John Kraus, and Richard Armey, for taking a stand for freedom.  A thanks also goes to our legal team of Kent Masterson Brown and Frank Northam who have responded to the government’s use of legal tactics to delay the restoration of freedom.

The next step in this lawsuit will be determined when Judge Collyer renders her decision.

Brief: http://thefundforpersonalliberty.org/pdf/110211-50-Plaint-Memorandum.pdf

Timeline: http://thefundforpersonalliberty.org/about/medicare-lawsuit/medicare-lawsuit-timeline-with-documents/