Thank you, everyone, for your continuing support and interest in Hall v. Sebelius, the Medicare Lawsuit.

On June 14, 2010, our final brief will be filed with the US District Court of Washington, DC, after which, Judge Rosemary Collyer will schedule oral arguments and then render a decision on the issue of whether one may opt out of Medicare without foregoing Social Security benefits.

Please subscribe to our updates and follow the lawsuit as it reaches its conclusion in the US District Court.

~ Martha de Forest, Executive Director

Kent Masterson Brown recounted:

The government’s counsel responded by stating that he believed discovery was in order because the Government needed to determine whether the decisions of the Plaintiffs not to accept Medicare, Part A, were in their best financial interests!  Government counsel proceeded to inform the Court that he wanted to depose the Plaintiffs, the officials of the hospitals they routinely use, their insurers, and multiple other parties.

Mr. Brown concluded:

Judge Collyer denied the government’s Motion for Discovery and ordered us to re-file the Statement of Material Facts with it pared down to illustrate just the basic facts of the Plaintiffs having their FEHB benefits and HSAs taken away and the Plaintiffs forced into Medicare, Part A, against their will, as a condition of receiving the Social Security due to the POMS.

The short term timeline:

• May 5, 2010, Plaintiffs re-file the Motion for Summary Judgment
• May 27, 2010, Government responds to the motion
• June 14, 2010, Plaintiffs respond to the government’s response

Dear Donors and Subscribers,

Brian Hall, the lead plaintiff in the Medicare Lawsuit, is on his way to regaining his freedom to contract for health insurance.  Mr. Hall’s health freedom was taken by government workers who wrote procedures for administering Social Security and Medicare that prevent him from opting out of Medicare unless he repays all Social Security and Medicare benefits received to date and foregoes his future Social Security benefits.  Those procedures act as law, contrary to the intent of the legislation Congress enacted when creating the Social Security and Medicare programs.

FIRST HUGE WIN

The Hall v. Sebelius lawsuit saw a huge win on September 29, 2009, that will help all plaintiffs suing the government.  The government routinely argues that plaintiffs must exhaust administrative remedies before they are allowed standing in the court of law.  Judge Collyer of the US District Court in Washington, DC rejected the government’s Motion to Dismiss on the grounds that exhaustion of administrative remedies would be futile.

Judge Collyer’s Memorandum Opinion (decision) was influenced by documentation presented by co-plaintiff John Kraus that his case had been ignored for three years until he was a plaintiff in the Medicare Lawsuit.  In the ruling, Judge Collyer states, “In Mr. Kraus’s case it appears that blame for his failure to exhaust administrative remedies lies with the SSA, not with himself.”

CAPITOL HILL BRIEFING

On October 13, 2009, lead attorney Kent Masterson Brown and CATO scholar Michael Cannon spoke on Capitol Hill at the Rayburn House Office Building.  Their video may be accessed on the CATO website under “Event Archives”.  Brown and Cannon discussed how Medicare, a voluntary entitlement, became a mandatory program without congressional approval.

During the question and answer portion of the briefing an audience member asked, “How much has the government spent to fight letting the plaintiffs leave the system?”  We have no idea, but during the May 22, 2009, hearing the government’s General Counsel for both Social Security and Health and Human Services were present as were about six other government attorneys.

Another audience member, Jenifer Healy of Representative Sam Johnson’s (R-TX) office, said that Ross Perot asked her congressman why he should be forced to participate in Medicare when the government is clearly running out of money for the program and he can pay for his own services.

The driving issue is freedom to contract, a fundamental right in a free society.  It does not matter whether Medicare is better or worse than any other insurance program, what matters is whether we can choose.  After all, a bird in a golden cage is still not free.

WHAT’S NEXT

Brian Hall and the other four plaintiffs will have to be patient.  The Medicare Lawsuit timeline can be found on our website at http://thefundforpersonalliberty.org/about/medicare-lawsuit/medicare-lawsuit-timeline-with-documents/, or by clicking on the timeline link in the lower left hand corner of every web page.  After all of the paperwork has been filed, the judge will schedule and conduct a hearing, then render an opinion.  It may take until May – August of 2010 to receive a final ruling on the Motion for Summary Judgment.

Fortunately, there will not be a trial because the facts of the matter are not disputed.  Both the plaintiffs and the government agree to what is written in the legislation and the procedural manual.  It will be up to the judge to make a ruling on the law.

After the final ruling in the US District Court, the losing side is likely to appeal to a three-judge panel of the US Court of Appeals.

Regaining retired citizens’ health freedom to contract for their insurance will be a long and difficult road and, in the words of co-plaintiff John Kraus, “They have our money to fight us with.” 

IRS DETERMINATION LETTER

After waiting 472 days, we received the valuable IRS determination letter that establishes we are exempt from Federal income tax under section 501(c)(3) of the Internal Revenue Code.  Past and future contributions to FFPL are deductible under section 170 of the Code.  FFPL is also qualified to receive tax deductible bequests, devices, transfers or gifts under section 2055, 2106, or 2522 of the Code”

A copy of the letter and our fiscal year 2008 tax return are accessible on the website

            www.thefundforpersonalliberty.org/about/corporate-documents/

Not only have the plaintiffs had to be patient, so too have the administrators and donors to this lawsuit!

FINAL COMMENTS

Thank you for helping Brian Hall, Lew Randall, Norm Rogers, John Kraus, and Dick Armey.  Our health freedom is at stake and a win for the five plaintiffs will be a win for all Americans who value the freedom to contract for the health insurance that best suits their personal needs after they pass the age of 65.

Remember, the plaintiffs are not asking for one penny from the government and taxpayers; they are only asking to have a past freedom restored.

Feel free to contact me with any questions or comments.

Sincerely,

Martha de Forest
Executive Director
(360) 830-6842
martha.deforest@TheFundForPersonalLiberty.org

PS  During our first fiscal year ending May 31, 2009, 93% of spending was for the Medicare Lawsuit and 7% was for administration and fundraising combined.  Thank you again for helping us litigate for your health freedom.

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                                                                        c/o Brett Wilhelm, Secretary
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JUDGE CLEARS WAY TO VOID RULES MANDATING ENROLLMENT IN
MEDICARE, PART A, AS A CONDITION OF RECEIVING SOCIAL SECURITY
RETIREMENT BENEFITS

 Motion to Dismiss Denied; Summary Judgment Pending

WASHINGTON, DC—In an opinion handed down on September 29, Judge Rosemary Collyer of the U.S. District Court in Washington, DC denied a Motion to Dismiss filed by Kathleen Sebelius, U.S. Secretary of Health and Human Services, and Michael Astrue, Commissioner of the Social Security Administration, clearing the way for the Court to void five rules created by the Clinton Administration that made receipt of an individual’s Social Security retirement benefits contingent upon enrollment in Medicare, Part A.
 
Originally filed in October, 2008 as Brian Hall et al v. Michael Leavitt et al, the lawsuit, now known as Hall v. Sebelius, involves five plaintiffs: Brian Hall of Virginia, Norman Rogers of Florida, Lew Randall of Washington, John Kraus of Pennsylvania and former U.S. House of Representatives Majority Leader Richard Armey of Texas.
 
The lawsuit challenges the validity of five rules in the Social Security Program Operations Manual, known as the POMS, that require enrollment in Medicare, Part A, as a condition of receiving Social Security retirement benefits and that mandate the surrender of all Social Security retirement benefits received if an individual seeks to disenroll from Medicare, Part A.
 
The plaintiffs claim that the POMS violate the Social Security statute enacted by Congress in that the statute makes the two federal programs completely voluntary and no federal agency has the authority — statutorily or constitutionally — to “legislate” requirements interfering with an individual’s entitlement to Social Security retirement benefits not enacted by Congress.
 
None of the plaintiffs want to enroll, or remain enrolled, in Medicare as they believe it is an inferior system that restricts seniors’ access to health care because of its administration and looming bankruptcy. Three of the plaintiffs, Hall, Kraus and Armey, had superior private health care benefits, including health savings accounts, under the Federal Employee Health Benefits Program, which they had been denied due to the enforcement of the POMS. The other two plaintiffs had private health insurance and health savings arrangements that would have been disrupted by the POMS had they applied for their Social Security retirement benefits.
 
“The government attempted to get the case dismissed, arguing that the POMS were mere expressions of the statutes and regulations and that none of the plaintiffs had exhausted administrative remedies available to them to challenge the POMS before they filed suit in Federal Court,” said Kent Masterson Brown, lead attorney for the plaintiffs in Hall v. Sebelius. “Judge Collyer denied their Motion.”

Rejecting the Government’s contention that the POMS were merely expressions of the statute and regulations creating and governing Social Security and Medicare, the Court ruled that “neither the statute nor the regulation specifies that Plaintiffs must withdraw from [Social Security] and repay retirement benefits in order to withdraw from Medicare, Part A.” “In contrast,” the Court asserted, “the POMS explicitly states that condition.”

Thus, according to the Court, “the POMS determines Plaintiffs’ rights or obligations in this instance and is an action from which legal consequences flow.” Concluding, the Court asserted: “the POMS is subject to judicial review.”

“With respect to the government’s argument that plaintiffs’ case must be dismissed because they failed to exhaust administrative remedies, the Court also asserted that exhaustion must be excused in this case; it would be futile,” said Brown.

Specifically, plaintiff Hall attempted to exhaust administrative remedies, but was informed by the Social Security general counsel that there was no way he could get out of Medicare, Part A, and still keep his Social Security. Plaintiff Kraus, through his Congresswoman, asked for an administrative law judge after he was “forced” to enroll in Medicare, but was stalled for more than three years.

“Importantly, the position taken by the government in this case clearly revealed its intent not to change the POMS,” said Brown.

The Court held, however, that “Where an agency has demonstrated an unwillingness to reconsider its position and there is certainty of an adverse decision – and where the challenge is to the agency’s policy and practice or systematic failure to comply with Federal law – exhaustion will be excused.”

Because the plaintiffs in this case challenge a policy “not found in the Social Security Act or federal regulations as Defendants allege, but was apparently created by the Social Security Administration and expressed in the POMS” – and exhaustion would be “futile” – the Court denied the Government’s motion.

“The Court further directed the government to respond within thirty days to the plaintiffs’ previously filed Motion for Summary Judgment asking the Court to void the POMS and permanently enjoin the government’s enforcement of the POMS,” said Brown.

 # # #

 090930 Press Release (pdf)

090929 Opinion Denying Motion to Dismiss (pdf)

Link to the Memorandum Opinion: 090929-Opinion-Denying-Motion-to-Dismiss.pdf