Case 3:10-cv-04814-FLW -DEA Document 8 Filed 10/19/10 Page 1 of 3 PagelD: 89 U.S. Department of Justice Civil Division Washington, DC 20530 Tel: (202) 514-9242 Fax: (202) 616-8470 Ethan, P.Davis@usdoj.gov October 19, 2010 Judge Freda L. Wolfson United States District Court District of New Jersey 402 East State Street Room 2020 Trenton, NJ 08608 SUBJECT: Purpura et al. v. Sebelius et al., Case No. 3:10-cv-04814 (D.N.J.) Dear Judge Wolfson: Defendants respectfully submit this letter in response to plaintiffs’ application for a temporary restraining order, See Dkt. # 4. Plaintiffs Nicholas E. Purpura and Donald R. Laster, Jr., claiming to represent “We the People,” demand a temporary restraining order to halt the implementation of the Patient Protection and Affordable Care Act (“ACA” or “the Act”). But plaintiffs’ affidavit on its face does not come close to establishing the prerequisites for the extraordinary, emergency relief that they seek. To obtain preliminary injunctive relief, plaintiffs must show “(1) a likelihood of success on the merits; (2) he or she will suffer irreparable harm if the injunction is denied; (3) granting relief will not result in even greater harm to the nonmoving party; and (4) the public interest favors such relief.” Bimbo Bakeries USA, Ine. v. Botticella, 613 F.3d 102, 109 (3d Cir. 2010) (internal citation and quotation marks omitted), Defendants will demonstrate in subsequent briefing that each of the fifteen counts of plaintiffs’ complaint is meritless. Here, however, it is enough that “1Case 3:10-cv-04814-FLW -DEA Document 8 Filed 10/19/10 Page 2 of 3 PagelD: 90 plaintifis plainly fail to satisfy the second factor; they make no effort to show any irreparable harm to themselves if preliminary relief is denied. In place of the required showing of irreparable harm, plaintiffs quote Plato on indignation and injustice, Aff. at 1, decry “the soft tyranny being instituted by the legislative branch of government,” id. at 3, claim that the Act “renders the Judicial branch of our government irrelevant,” id, at 4, and assert that as a result of the Act, “equity and justice is/was non-existent!,” id. at 5. But mere rhetorical flourish does not demonstrate harm of any sort, much less irreparable harm. Even given the solicitude shown to plaintiffs proceeding pro se, these “bare assertion[s]” do not suffice. Southern New England Tel. Co. v. Global NAPs, Inc., 2007 WL 3171949, at *4 (D. Virgin Islands 2007) (unpublished). This failure alone dictates denial of their application for a TRO. See TES Franchising, LLC v. Dombach, 2010 WL 3946274, at *5 (E.D. Pa. Oct. 7, 2010) (“[A] failure to demonstrate irreparable injury must necessarily result in the denial of a temporary restraining order.”) (internal citation and quotation marks omitted). Emergency injunctive relief is particularly inappropriate because the central provision that plaintiffs challenge—the requirement that Americans maintain a minimum level of health insurance coverage or pay a penalty for failing to do so— does not take effect until January 1, 2014. This provision cannot possibly inflict any injury, much less any irreparable harm, years before it becomes effective. Although plaintiffs are correct that “select sections of the ‘Act’ have already begun taking effect, Aff. at 2, plaintifis have not identified those provisions, nor have they made any effort to show how those provisions are currently harming them. Instead, plaintiff literally reveal nothing about themselves other than their names, their addresses, their affiliations with various Tea Party groups in New Jersey, and that they do not like the challenged statute. The application for a temporary restraining order should be denied." Dated: October 19, 2010 Respectfully submitted, TONY WEST Assistant Attorney General IAN HEATH GERSHENGORN Deputy Assistant Attorney General | Defendants also note that plaintiffs have not properly served the United States. See Fed. R. Civ. P. 4(i)(1)(A)(i). -2-Case 3:10-cv-04814-FLW -DEA Document 8 Filed 10/19/10 Page 3 of 3 PagelD: 91 PAUL J. FISHMAN United States Attomey District of New Jersey JENNIFER RICKETTS Director SHEILA LIEBER Deputy Director s/ Ethan P. Davis ETHAN P. DAVIS Trial Attorney United States Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Ave. NW Washington, D.C. 20001 Tel: (202) 514-9242 Fax: (202) 616-8470 Ethan. P.Davis@usdoj.govCase 3:10-cv-04814-FLW -DEA Document 8-1 Filed 10/19/10 Page 1 of 1 PagelD: 92 CERTIFICATE OF SERVICE THEREBY CERTIFY that, on the date and by the methods of service noted below, a true and correct copy of defendants’ letter in response to plaintiffs’ application for a temporary restraining order was served on the following: Served Electronically through CM/ECF: NONE Served by First Class Mail: Nicholas E. Purpura 1802 Rue De La Port Wall, NJ 07719 Donald R. Laster, Jr. 25 Heid! Avenue West Long Branch, NJ 07764 DATED: October 19, 2010 / Ethan P. Davis THAN P. DAVIS Trial Attorney US. Department of JusticeCase 3:10-cv-04814-FLW -DEA Document7 Filed 10/19/10 Page 1 of 2 PagelD: 86 COURTESY COPY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY NICHOLAS E. PURPURA, et al., Plaintiffs, Case No.: 3:10-cv-04814 (D.N.J.). vs. NOTICE OF APPEARANCE KATHLEEN SEBELIUS; et al., Defendants TO THE CLERK OF THE COURT: Please take notice that Ethan P. Davis, United States Department of Justice, Civil Division, Federal Programs Branch, enters his appearance in the above- captioned matter as counsel of record for defendants. Dated: October 19, 2010 Respectfully submitted, TONY WEST Assistant Attorney General IAN HEATH GERSHENGORN Deputy Assistant Attorney General PAUL J, FISHMAN . United States Attorney, District of New Jersey JENNIFER RICKETTS Director SHEILA LIEBER Deputy DirectorCase 3:10-cv-04814-FLW -DEA Document7 Filed 10/19/10 Page 2 of 2 PagelD: 87 COURTESY COPY s/ Ethan P. Davis Trial Attorney. . United States Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Ave. NW Washington, D.C 20001 Tel: (202) 514-9342 Fax: (202) 616-8470. : E-mail: Ethan.P.Davis@usdoj.govCase 3:10-cv-04814-FLW -DEA Document 7-1 Filed 10/19/10 Page 1 of 1 PagelD: 88 COURTESY COPY CERTIFICATE OF SERVICE I HEREBY CERTIFY that, on the date and by the methods of service noted below, a true and correct copy of the Notice of Appearance of Ethan P. Davis on behalf of defendants was served on the following: Served Electronically through CM/ECF: NONE Served by First Class Mail: Nicholas E. Purpura 1802 Rue De La Port Wall, NJ 07719 Donald R. Laster, Jr, 25 Heidl Avenue West Long Branch, NJ 07764 DATED: October 19, 2010 /s/ Ethan P. Davis ETHAN P. DAVIS Trial Attomey US. Department of Justice