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IN THE SUPREME COURT OF THE UNITED STATES

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- - - - - - - - - - - - - - - - - x

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DEPARTMENT OF HEALTH AND

:

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HUMAN SERVICES, ET AL.,

:

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Petitioners

: No. 11-398

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v.

:

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FLORIDA, ET AL.

:

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- - - - - - - - - - - - - - - - - x

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Washington, D.C.

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Monday, March 26, 2012

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The above-entitled matter came on for oral

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argument before the Supreme Court of the United States

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at 10:12 a.m.

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APPEARANCES:

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ROBERT A. LONG, ESQ., Washington, D.C.; for

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Court-appointed amicus curiae

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DONALD B. VERRILLI, JR., ESQ., Solicitor General,

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Department of Justice, Washington, D.C.; on behalf of

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Petitioners.

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GREGORY G. KATSAS, ESQ., Washington, D.C.; on behalf of

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Respondents.

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C O N T E N T S

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ORAL ARGUMENT OF

PAGE

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ROBERT A. LONG, ESQ.

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For Court-appointed amicus curiae

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ORAL ARGUMENT OF

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DONALD B. VERRILLI, JR., ESQ.

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On behalf of the Petitioners

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ORAL ARGUMENT OF

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GREGORY G. KATSAS, ESQ.

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On behalf of the Respondents

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REBUTTAL ARGUMENT OF

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ROBERT A. LONG, ESQ.

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For Court-appointed amicus curiae

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P R O C E E D I N G S

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(10:12 a.m.)

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CHIEF JUSTICE ROBERTS: We will hear

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argument this morning in Case Number 11-398, Department

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of Health and Human Services v. Florida.

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Mr. Long.

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ORAL ARGUMENT OF ROBERT A. LONG

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FOR COURT-APPOINTED AMICUS CURIAE

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MR. LONG: Mr. Chief Justice, and may it

10

please the Court:

11

The Anti-Injunction Act imposes a "pay

12

first, litigate later" rule that is central to Federal

13

tax assessment and collection. The Act applies to

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essentially every tax penalty in the Internal Revenue

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Code. There is no reason to think that Congress made a

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special exception for the penalty imposed by section

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5000A. On the contrary, there are three reasons to

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conclude that the Anti-Injunction Act applies here.

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First, Congress directed that the section

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5000A penalty shall be assessed and collected in the

21

same manner as taxes. Second, Congress provided that

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penalties are included in taxes for assessment purposes.

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And, third, the section 5000A penalty bears the key

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indicia of a tax.

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Congress directed that the section 5000A

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penalty shall be assessed and collected in the same

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manner as taxes. That directive triggers the

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Anti-Injunction Act, which provides that "no suit for

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the purpose of restraining the assessment or collection

5

of any tax may be maintained in any court by any

6

person."

7

JUSTICE SCALIA: Well, that depends, as -8

as the government points out, on whether that directive

9

is a directive to the Secretary of the Treasury as to

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how he goes about getting this penalty, or rather a

11

directive to him and to the courts. All of the other

12

directives there seem to me to be addressed to the

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Secretary. Why should this one be directed to the

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courts? When you say "in the same manner," he goes

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about doing it in the same manner, but the courts simply

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accept that -- that manner of proceeding but nonetheless

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adjudicate the cases.

18

MR. LONG: Well, I think I have a three-part

19

answer to that, Justice Scalia. First, the text does

20

not say that the Secretary shall assess and collect

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taxes in the same manner; it just says that it shall be

22

assessed in the same manner as a tax, without addressing

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any party particularly.

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JUSTICE SCALIA: Well, he's assessing and

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collecting it in the same manner as a tax.

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MR. LONG: Well, the assessment -- the other

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two parts of the answer are, as a practical matter, I

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don't think there's any dispute in this case that if the

4

Anti-Injunction Act does not apply, this penalty, the

5

section 5000A penalty, will as a practical matter be

6

assessed and collected in a very different manner from

7

other taxes and other tax penalties.

8

There are three main differences. First,

9

when the Anti-Injunction Act applies, you have to pay

10

the tax or the penalty first and then litigate later to

11

get it back with interest. Second, you have to exhaust

12

administrative remedies. Even after you pay the tax,

13

you can't immediately go to court. You have to go to

14

the Secretary and give the Secretary at least 6 months

15

to see if the matter can be resolved administratively.

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And, third, even in the very carefully defined

17

situations in which Congress has permitted a challenge

18

to a tax or a penalty before it's paid, the Secretary

19

has to make the first move. The taxpayer is never

20

allowed to rush into court before the tax -- before the

21

Secretary sends a notice of deficiency to start the

22

process.

23

Now, if -- if the Anti-Injunction Act does

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not apply here, none of those rules apply. And that's

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not just for this case; it will be for every challenge

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to a section 5000A penalty going forward. The taxpayer

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will be able to go to court at any time without

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exhausting administrative remedies; there will be none

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of the limitations that apply in terms of you have to

5

wait for the Secretary to make the -6

JUSTICE KENNEDY: Why will the

7

administrative remedies rule not be applicable,

8

exhaustion rule not be applicable?

9

MR. LONG: Well, because if the

10

Anti-Injunction Act doesn't apply, there's no

11

prohibition on courts restraining the assessment or

12

collection of this penalty, and you can simply -13

JUSTICE KENNEDY: Well, but courts apply the

14

exhaustion rule. I mean, I know you've studied this.

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I'm just not following it. Why couldn't the court say,

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well, you haven't exhausted your remedies; no

17

injunction?

18

MR. LONG: Well, in -- you could do that, I

19

think, as a matter of -- of common law or judicially

20

imposed doctrine, but in the code itself, which is

21

all -- I mean, the Anti-Injunction Act is an absolutely

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central statute to litigation -23

JUSTICE KENNEDY: Yes. Yes.

24

MR. LONG: -- about taxes. And the code

25

says -- first it says you must pay the tax first and

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then litigate. So, that's the baseline. And then, in

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addition, it says you must -- I mean, it's not common

3

law; it's in the code -- you must apply for a refund,

4

you must wait at least 6 months. That's -- many of

5

these provisions are extremely specific, with very

6

specific time limits.

7

CHIEF JUSTICE ROBERTS: They would apply

8

even if the rule is not jurisdictional. The only

9

difference would be that the court could enforce it or

10

not enforce it in particular cases, which brings me to

11

the Davis case, which I think is your biggest hurdle.

12

It's a case quite similar to this in which the

13

constitutionality of the Social Security Act was at

14

issue, and the government waived its right to insist

15

upon the application of this Act.

16

Of course, if it's jurisdictional, you can't

17

waive it. So, are you asking us to overrule the Davis

18

case?

19

MR. LONG: Well, Helvering v. Davis was

20

decided during a period when this Court interpreted the

21

Anti-Injunction Act as simply codifying the

22

pre-statutory equitable principles that usually, but not

23

always, prohibited a court from enjoining the assessment

24

or collection of taxes. So, that understanding, which

25

is what was the basis for the Helvering v. Davis

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decision, was rejected by the Court in Williams Packing

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and a series of subsequent cases -- Bob Jones. And so,

3

I would say, effectively, the Davis case has been

4

overruled by subsequent decisions of this Court.

5

JUSTICE GINSBURG: Mr. Long, why don't we

6

simply follow the statutory language? I know that

7

you've argued that the Davis case has been overtaken by

8

later cases, but the language of the Anti-Injunction Act

9

is "no suit shall be maintained." It's remarkably

10

similar to the language in -- that was at issue in Reed

11

Elsevier: "No civil action for infringement shall be

12

instituted." And that formulation, "no suit may be

13

maintained," contrasts with of the Tax Injunction Act,

14

that says the district court shall not enjoin. That Tax

15

Injunction Act is the same pattern as 2283, which says

16

"courts of the United States may not stay a proceeding

17

in State court." So, both of those formulas, the TIA

18

and the "no injunction against proceedings in State

19

court" are directed to "court." The Anti-Injunction

20

Act, like the statute at issue in Reed Elsevier, says

21

"no suit shall be maintained." And it has been argued

22

that that is suitor-directed in contrast to

23

court-directed.

24

MR. LONG: Right. Well, I mean, this Court

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has said several times that the Tax Injunction Act was

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based on the Anti-Injunction Act. You're quite right,

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the language is different; but we submit that the

3

Anti-Injunction Act itself, by saying that no suit shall

4

be maintained, is addressed to courts as well as

5

litigants. I mean, after all, a case cannot go from

6

beginning to end without the active cooperation of the

7

court.

8

JUSTICE GINSBURG: But how is that different

9

from "no civil action for infringement shall be

10

instituted" -- "maintained and instituted"? Anything

11

turn on that?

12

MR. LONG: Well, it's -- I mean -- perhaps a

13

party could initiate an action without the act of

14

cooperation of the court, but to maintain it from

15

beginning to end, again, requires the court's

16

cooperation.

17

And even if -- I mean, if the Court were

18

inclined to say as an initial matter, if this statute

19

were coming before us for the first time today, given

20

all of your recent decisions on jurisdiction, that you

21

might be inclined to say this is not a jurisdictional

22

statute, a lot of water has gone over the dam here. The

23

Court has said multiple times that this is a

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jurisdictional statute. Congress has not disturbed

25

those decisions. To the contrary -9

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JUSTICE SOTOMAYOR: Counsel -2

JUSTICE ALITO: Well, the Court said that

3

many times, but is there any case in which the result

4

would have been different if the Anti-Injunction Act

5

were not viewed as jurisdictional but instead were

6

viewed as a mandatory claims-processing -7

MR. LONG: There's -8

JUSTICE ALITO: -- rule.

9

MR. LONG: There -- there are certainly a

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number of cases where the Court dismissed saying it is

11

jurisdictional.

12

As I read the cases, I don't think any of

13

them would necessarily have come out differently,

14

because I don't think we had a case where the argument

15

was, well, you know, the Government has waived this, so,

16

you know, even -- if it's not jurisdictional -17

JUSTICE ALITO: Well, the clearest -- the

18

clearest way of distinguishing between the

19

jurisdictional provision and a mandatory claims

20

processing rule is whether it can be waived and whether

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the Court feels that it has an obligation to raise the

22

issue sua sponte.

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Now, if there are a lot of cases that call

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it jurisdictional, but none of them would have come out

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differently if the Anti-Injunction Act were simply a

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mandatory claims processing rule, you have that on one

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side.

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And on the other side, you have Davis, where

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the Court accepted a waiver by the Solicitor General;

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the Sunshine Anthracite coal case, where there also was

6

a waiver; and, there's the Williams Packing case, which

7

is somewhat hard to understand as viewing the

8

Anti-Injunction Act as a jurisdictional provision.

9

The Court said that there could be a suit if

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there is no way the Government could win, and the

11

Plaintiff would suffer irreparable harm. Now, doesn't

12

that sound like an equitable exception to the

13

Anti-Injunction Act?

14

MR. LONG: No, I think the -- I think the

15

best interpretation of the Court's cases is that it was

16

interpreting a jurisdictional statute. And, indeed, in

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Williams Packing, the Court said it was a jurisdictional

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statute.

19

But, again, even if you have doubt about

20

simply the cases, there is more than that because

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Congress has -- has not only not disturbed this Court's

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decision stating that the statute is jurisdictional,

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they've passed numerous amendments to this

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Anti-Injunction Act.

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CHIEF JUSTICE ROBERTS: Well, it seems -11

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you can't separate those two points. The idea that

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Congress has acquiesced in what we have said only helps

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you if what we have said is fairly consistent. And you,

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yourself, point out in your brief that we've kind of

5

gone back and forth on whether this is a jurisdictional

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provision or not. So, even if Congress acquiesced in

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it, I'm not sure what they acquiesced in.

8

MR. LONG: Well, what you have said,

9

Mr. Chief Justice, has been absolutely consistent for

10

50 years, since the Williams Packing case. The period

11

of inconsistency was after the first 50 years, since the

12

statute was enacted in 1867. And there was a period, as

13

I said, when the Court was allowing extraordinary

14

circumstances exceptions and equitable exceptions, but

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then, very quickly, it cut back on that. And since -16

and since Williams Packing, you have been utterly

17

consistent -18

JUSTICE KAGAN: Well, even since

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Williams Packing, there was South Carolina v. Regan.

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And that case can also be understood as a kind of

21

equitable exception to the rule, which would be

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inconsistent with thinking that the rule is

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jurisdictional.

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MR. LONG: Well, again, I mean, I think the

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best understanding of South Carolina v. Regan is not

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that its an equitable exception, but it's the Court

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interpreting a jurisdictional statute as it would

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interpret any statute in light of its purpose, and

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deciding in that very special case, it's a very narrow

5

exception, where the -6

JUSTICE SOTOMAYOR: Mr. Long, in Bowles, the

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Court looked to the long history of appellate issues as

8

being jurisdictional, in its traditional sense, not as a

9

claim processing rule, but as a pure jurisdiction rule,

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the power of the Court to hear a case.

11

From all the questions here, I count at

12

least four cases in the Court's history where the Court

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has accepted a waiver by the Solicitor General and

14

reached a tax issue. I have at least three cases, one

15

of them just mentioned by Justice Kagan, where

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exceptions to that rule were read in.

17

Given that history, regardless of how we

18

define jurisdictional statutes versus claim processing

19

statutes in recent times, isn't the fairer statement

20

that Congress has accepted that in the extraordinary

21

case, we will hear the case?

22

MR. LONG: No. No, Justice Sotomayor,

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because in many of these amendments which have come in

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the '70s and the '90s and the 2000s, the Congress has

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actually framed the limited exceptions to the

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Anti-Injunction Act in jurisdictional terms. And it has

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written many of the express exceptions by saying

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notwithstanding Section 7421 -4

JUSTICE SOTOMAYOR: But doesn't that just

5

prove that it knows that the Court will impose a claim

6

processing rule in many circumstances, and so, in those

7

in which it specifically doesn't want the Court to, it

8

has to be clearer?

9

MR. LONG: Well, but Congress says,

10

notwithstanding 7421, the Court "shall have jurisdiction

11

to restrain the assessment and collection of taxes in

12

very limited" -13

JUSTICE SOTOMAYOR: Could you go back to the

14

question that Justice Alito asked? Assuming we find

15

that this is not jurisdictional, what is the parade of

16

horribles that you see occurring if we call this a

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mandatory claim processing rule? What kinds of cases do

18

you imagine that courts will reach?

19

MR. LONG: Right. Well, first of all, I

20

think you would be saying that for the refund statute,

21

as well as for the Anti-Injunction Act -- which has very

22

similar wording, so if the Anti-Injunction Act is not

23

jurisdictional, I think that's also going to apply to

24

the refund statute, the statute that says you have to

25

first ask for a refund and then file, you know, within

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certain time -- so it would be -- it would be both of

2

those statutes. And, you know, we are dealing with

3

taxes here, if people -4

JUSTICE SOTOMAYOR: That wasn't my question.

5

MR. LONG: I'm sorry.

6

JUSTICE SOTOMAYOR: My question was, if we

7

deem this a mandatory claim processing rule -8

MR. LONG: Right.

9

JUSTICE SOTOMAYOR: -- what cases do you

10

imagine courts will reach on what grounds? Assuming the

11

Government does its job and comes in and raises the AIA

12

as an immediate defense -13

MR. LONG: Well, that's -14

JUSTICE SOTOMAYOR: -- where can a court

15

then reach the question, despite -16

MR. LONG: That would certainly be the first

17

class of cases, it occurs to me, where, if the

18

Government does not raise it in a timely way, it could

19

be waived. I would think plaintiffs would see if there

20

was some clever way they could get a suit going that

21

wouldn't immediately be apparent that -22

JUSTICE SOTOMAYOR: Assumes the lack of

23

competency of the Government, which I don't, but what

24

other types of cases?

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JUSTICE SCALIA: Mr. Long, I don't think you

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are going to come up with any, but I think your response

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is you could say that about any jurisdictional rule. If

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it's not jurisdictional, what's going to happen is you

4

are going to have an intelligent federal court deciding

5

whether you are going to make an exception. And there

6

will be no parade of horribles because all federal

7

courts are intelligent.

8

So it seems to me it's a question you can't

9

answer. It's a question which asks "why should there be

10

any jurisdictional rules?" And you think there should

11

be.

12

MR. LONG: Well, and, Justice Scalia, I

13

mean, honestly, I can't predict what would happen, but I

14

would say that not all people who litigate about federal

15

taxes are necessarily rational. And I think there would

16

be a great -17

JUSTICE BREYER: I just don't want you to

18

lose the second half of your argument. And we have

19

spent all the time so far on jurisdiction. And I

20

accept, pretty much, I'm probably leaning in your favor

21

on jurisdiction, but where I see the problem is in the

22

second part, because the second part says "restraining

23

the assessment or collection of any tax."

24

Now, here, Congress has nowhere used the

25

word "tax." What it says is penalty. Moreover, this is

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not in the Internal Revenue Code "but for purposes of

2

collection."

3

And so why is this a tax? And I know you

4

point to certain sentences that talk about taxes within

5

the Code -6

MR. LONG: Right.

7

JUSTICE BREYER: -- and this is not attached

8

to a tax. It is attached to a health care requirement.

9

MR. LONG: Right.

10

JUSTICE BREYER: So why does it fall within

11

that word?

12

MR. LONG: Well, I mean, the first point

13

is -- our initial submission is you don't have to

14

determine that this is a tax in order to find that the

15

Anti-Injunction Act applies, because Congress very

16

specifically said that it shall be assessed and

17

collected in the same manner as a tax, even if it's a

18

tax penalty and not a tax. So that's one -19

JUSTICE BREYER: But that doesn't mean the

20

AIA applies. I mean -- and then they provide some

21

exceptions, but it doesn't mean the AIA applies.

22

It says, "in the same manner as." It is

23

then attached to Chapter 68, when that -- it references

24

that as "being the manner of." Well, that it's being

25

applied -- or if it's being collected in the same manner

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as a tax doesn't automatically make it a tax,

2

particularly since the reasons for the AIA are to

3

prevent interference with revenue sources. And here, an

4

advance attack on this does not interfere with the

5

collection of revenues.

6

I mean, that's -- you have read the

7

arguments, as have I. But I would like to know what you

8

say succinctly in response to those arguments.

9

MR. LONG: So, specifically on the argument

10

that it is actually a tax, even setting aside the point

11

that it should be assessed and collected in the same

12

manner as a tax, the Anti-Injunction Act uses the term

13

"tax"; it doesn't define it. Somewhat to my surprise,

14

"tax" is not defined anywhere in the Internal Revenue

15

Code. In about the time that Congress passed the

16

Anti-Injunction Act, "tax" had a very broad definition.

17

It's broad enough to include this exaction, which is

18

codified in the Internal Revenue Code. It's part of the

19

taxpayer's annual income tax return. The amount of the

20

liability and whether you owe the liability is based in

21

part on your income. It's assessed and collected by the

22

IRS.

23

JUSTICE SCALIA: There's at least some doubt

24

about it, Mr. Long, for the reasons that Justice Breyer

25

said, and I thought that we had a -- a principle that

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ousters of jurisdiction are narrowly construed; that,

2

unless it's clear, courts are not deprived of

3

jurisdiction. And I find it hard to think that this is

4

clear. Whatever else it is, it's easy to think that

5

it's not clear.

6

MR. LONG: Well, I mean, the Anti-Injunction

7

Act applies not only to every tax in the code but, as

8

far as I can tell, to every tax penalty in the code.

9

And -10

JUSTICE GINSBURG: Mr. Long, you said

11

before -- and I think you were quite right -- that the

12

Tax Injunction Act is modeled on the Anti-Injunction

13

Act. And, under the Tax Injunction Act, what can't be

14

enjoined is an assessment for the purpose of raising

15

revenue. The Tax Injunction Act does not apply to

16

penalties that are designed to induce compliance with

17

the law, rather than to raise revenue. And this is not

18

a revenue-raising measure because, if it's successful,

19

they -- nobody will pay the penalty, and there will be

20

no revenue to raise.

21

MR. LONG: Well, in Bob Jones the Court said

22

that they had gotten out of the business of trying to

23

determine whether an exaction is primarily

24

revenue-raising or primarily regulatory. And this one

25

certainly raises -- is expected to raise very

19

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substantial amounts of revenues, at least $4 billion a

2

year by the -3

JUSTICE SOTOMAYOR: But Bob Jones involved a

4

statute where it denominated the exaction as a tax.

5

MR. LONG: That's -6

JUSTICE SOTOMAYOR: Here we have one where

7

the Congress is not denominating it a -- as a tax; it's

8

denominating it as a penalty.

9

MR. LONG: That's -- that's absolutely

10

right, and that's obviously why -- if it were called a

11

tax, there would be absolutely no question that the

12

Anti-Injunction Act applies.

13

JUSTICE SOTOMAYOR: Absolutely. But even

14

the section of the code that you referred to previously,

15

the one following 7421, the AIA, it does very clearly

16

make a difference -- 7422 -- make a difference between

17

tax and penalties. It's very explicit.

18

MR. LONG: Yes, that's -- it does; that is

19

correct. And there are many other places in the code

20

where tax is -21

JUSTICE BREYER: The best collection I've

22

found in your favor, I think, is in Mortimer Caplin's

23

brief on page 16, 17. He has a whole list. All right.

24

So -- I got my law clerk to look all those up. And it

25

seems to me that they all fall into the categories of

20

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either, one, these are penalties that were penalties

2

assessed for not paying taxes; or, two, they involve

3

matters that were called by the court taxes; or, three,

4

in some instances they were deemed by the code to be

5

taxes.

6

Now, what we have here is something that's

7

in a different statute that doesn't use the word "tax"

8

once except for a collection device, and, in fact, in

9

addition, the underlying AIA reason, which is to say to

10

the Solicitor General: We don't care what you think;

11

we, in Congress, don't want you in court where the

12

revenue of a state -- Tax Injunction Act -- or the

13

revenue of the federal government is at stake, and,

14

therefore, you can't waive it.

15

Now, I got that. Here it's not at stake,

16

and here there are all the differences I just mentioned.

17

So, I ask that because I want to hear your response.

18

MR. LONG: Well, I mean, there are penalties

19

in the Internal Revenue Code that you really couldn't

20

say are related in any -- in any close way to some other

21

tax provision. There's a penalty -- it's discussed in

22

the briefs -- for selling diesel fuel that doesn't

23

comply with EPA's regulations, you know. So, there are

24

all kinds of penalties in the code, and I think it's -25

that you could rely upon.

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JUSTICE KAGAN: Mr. Long, aren't there

2

places in this Act -- fees and penalties -- that were

3

specifically put under the Anti-Injunction Act? There's

4

one on health care plans, there's one on pharmaceutical

5

manufacturers, where Congress specifically said the

6

Anti-Injunction Act is triggered for those. It does not

7

say that here. Wouldn't that suggest that Congress

8

meant for a different result to obtain?

9

MR. LONG: Well, I mean, Congress didn't use

10

the language the Anti-Injunction Act "shall apply" -11

JUSTICE KAGAN: No, but it -- it in section

12

9008 and in section 9010 -13

MR. LONG: Right.

14

JUSTICE KAGAN: -- it specifically referred

15

--

16

MR. LONG: Right.

17

JUSTICE KAGAN: -- to the part of the

18

code where the Anti-Injunction Act is.

19

MR. LONG: Right, all of subtitle F, which

20

picks up lots of administration and procedure

21

provisions, but those -- those are fees, and they're

22

not -- Congress did not provide, you know, in the

23

sections themselves that they should be paid as part of

24

a tax return. So they were free-standing fees, and by

25

using that subtitle F language, Congress plugged in a

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whole set of rules for how to collect and administer the

2

fees, and it went not just to assessment and

3

collection -- and the IRS has recognized this -- but to

4

examination, privacy, a whole series of additional

5

things.

6

So I think it would be a mistake to look at

7

that language and say, oh, here's Congress saying they

8

want the Anti-Injunction Act to apply. They're actually

9

doing more than that.

10

And, yes, I grant you, you could look at

11

section 5000A, the individual coverage requirement, and

12

say, well, they could have been clearer about saying the

13

Anti-Injunction Act applied, and that's certainly true,

14

but, again, they were trying to accomplish a lot. And

15

it's -16

JUSTICE KENNEDY: Maybe it's easier to talk

17

about this case if we just forget the words "for the

18

purpose of restraining assessment and collection." In a

19

sense, that brings the jurisdictional question and

20

Justice Breyer's question together.

21

It seems to me -- maybe you could just

22

comment on that language. Is that sort of language

23

usually contained in a jurisdictional provision? I

24

mean, you often don't know the purpose of a suit until

25

after the thing is under way. I can see it with

23

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malicious prosecution and some civil rights cases. Does

2

it strike you as somewhat unusual to have this provision

3

in a jurisdictional case?

4

MR. LONG: It does strike me, honestly -5

JUSTICE KENNEDY: Yes.

6

MR. LONG: -- as a bit unusual, but this is

7

an old statute. I mean, this -- the core language is

8

essentially unchanged since 1867, and it -- you know, I

9

think that's part of the explanation for it. And,

10

again, it's, you know, become the center of a series of

11

provisions that very carefully control the circumstances

12

in which litigation about federal taxes can take place.

13

JUSTICE GINSBURG: Mr. Long, there's another

14

argument that has been made that I would like you to

15

address, and that is all this talk about tax penalty -16

it's all beside the point because this suit is not

17

challenging the penalty. This is a suit that is

18

challenging the must-buy provision, and the argument is

19

made that, if, indeed, "must-buy" is constitutional,

20

then these complainants will not resist the penalty.

21

So, what they're seeking is a determination

22

that that the "must-buy" requirement, stated separately

23

from the penalty, that "must-buy" is unconstitutional.

24

And, if that's so, that's the end of the case; if it's

25

not so, they're not resisting the penalty.

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MR. LONG: Well, I think that argument

2

doesn't work for two reasons. I mean, first, if you

3

look at the plaintiffs' own complaint, they clearly

4

challenge both the minimum coverage requirement and the

5

penalty. At page 122 of the Joint Appendix, they

6

challenge the requirement that the individuals obtain

7

health care coverage or pay a penalty.

8

JUSTICE ALITO: Well, why is that?

9

JUSTICE GINSBURG: If that's -- if that's

10

the problem, it's easier to amend the complaint. They

11

can just take that out of the complaint. So, it can't

12

turn on that.

13

MR. LONG: Well -- and -- yes, I mean, it's

14

-- or another complaint would be filed, but, still, I

15

think that's a serious problem. But even if they had

16

filed a different complaint, I don't think you -- in

17

this case, I don't think you can separate the minimum

18

coverage requirement from the penalty because the

19

penalty is the sole means of enforcing the minimum

20

coverage requirement.

21

So, first, I mean, I think these plaintiffs

22

would not be satisfied if the Court were to render a

23

judgment saying the minimum coverage requirement is

24

invalidated; the penalty, however, remains standing.

25

Anybody who doesn't have insurance has to pay the

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penalty. Then they'd have to pay a penalty equal to the

2

cost of insurance and they wouldn't even have insurance.

3

So, I don't think that would be -4

JUSTICE ALITO: Well, they say they want to

5

obey the law -6

MR. LONG: Right.

7

JUSTICE ALITO: -- and they say that your

8

argument puts them in the position of having to disobey

9

the law in order to obtain review of their claim. And

10

what is your answer to that?

11

MR. LONG: Well, I mean, first of all, I

12

can't find that in the record, in their declarations. I

13

don't see a statement that they will, you know, never

14

incur a penalty under any circumstances. But -- but

15

even if that were so, what this Court has said in

16

Americans United is the Anti-Injunction Act bars any

17

suit, not just to enjoin the collection of your own

18

taxes, but to enjoin the collection of anyone's taxes.

19

And so even if it were really true that

20

these plaintiffs were not interested in the penalty and

21

would never pay the penalty, if they were to succeed in

22

this case in striking down the minimum coverage

23

requirement, the inevitable result would be that the

24

penalty would fall as well, because the Government

25

couldn't collect a penalty for failing to follow an

26

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unconstitutional requirement, and so it would still be

2

barred because it would be a suit that would prevent the

3

collection of some of the -4

JUSTICE ALITO: Well, let me take us back to

5

Justice Kennedy's question about the "for the purpose

6

of" language. I take it you interpret the statute to

7

mean the following: "For the purpose of" means having

8

the effect of. Is that correct?

9

MR. LONG: Well, I mean, this Court in the

10

Bob Jones case, where a similar kind of argument was

11

being made by the plaintiff in that case, said, you

12

know, look, you know, where the -- where it's inevitable

13

that this is what the suit is about, they're sort of two

14

sides of the same coin, that clearly is a primary

15

purpose of the suit. And it's -- and you can't by

16

clever pleading get away from that. That's just the

17

nature of the situation.

18

JUSTICE KAGAN: But, Mr. Long, aren't you

19

trying to rewrite the statute, in a way? The statute

20

has two sections. One is the you have to have insurance

21

section and the other is the sanction. The statute has

22

two different sets of exceptions corresponding to those

23

two different sections. You are trying to suggest that

24

the statute says: Well, it's your choice, either buy

25

insurance or pay a -- or pay a fee.

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But that's not the way the statute reads.

2

And Congress, it must be supposed, you know, made a

3

decision that that shouldn't be the way the statute

4

reads, that it should instead be a regulatory command

5

and a penalty attached to that command.

6

MR. LONG: Well, I would not argue that this

7

statute is a perfect model of clarity, but I do think

8

the most reasonable way to read the entire statute is

9

that it does impose a single obligation to pay a penalty

10

if you are an applicable individual and you are not

11

subject to an exemption.

12

And the reason I say that, if you look at

13

the exemptions from the penalty, the very first one is,

14

you are exempt from the penalty because you can't afford

15

to purchase insurance. And it just doesn't seem

16

reasonable to me to interpret the statute as Congress

17

having said, well, you know, this person is exempt from

18

paying a penalty because we find they can't afford to

19

buy insurance, however they still have a legal

20

obligation to buy insurance. That just doesn't seem

21

reasonable.

22

So I -- so I do think, although it's -- I

23

certainly wouldn't argue it's clear -- that that's the

24

best way to understand the statute as a whole.

25

But again, I would say, you know, that's not

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essential to the question we're discussing now of

2

whether the Anti-Injunction Act applies. Again, you

3

know, I think -4

JUSTICE SOTOMAYOR: Could you tell me why

5

you think the Solicitor General's reading creates a

6

problem?

7

MR. LONG: Well, in going back to -- so if

8

the result were to say simply, this is not -- oh, I'm

9

sorry. The Solicitor General's reading. So now it's

10

not -11

JUSTICE SOTOMAYOR: That it is a

12

jurisdictional bar, but there's an exemption for those

13

items that Congress has designated solely as penalties

14

that are not like taxes.

15

MR. LONG: Right. Well, I mean, I think the

16

Solicitor General's reading would probably create the

17

fewest problems, as I understand it. I mean, my -- my

18

main objection to the Solicitor General's reading is I

19

don't think it makes a whole lot of sense. I mean,

20

basically, the Solicitor General says every penalty in

21

the Internal Revenue Code, every other penalty in the

22

Affordable Care Act is -23

JUSTICE SOTOMAYOR: But that's not -- that's

24

carrying it too far, because he says if a penalty is

25

designated as a tax by Congress, then it's subject to

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the AIA, and that's most of the code, the tax code. And

2

he says for those portions of the Affordable Care Act

3

that designate things as taxes, the AIA applies. So

4

it's only -- and I haven't found another statute. I'm

5

going to ask him if there's another one. It's only for

6

those statutes in which Congress has designated

7

something solely as a penalty.

8

MR. LONG: Right.

9

JUSTICE SOTOMAYOR: And not indicated that

10

it is a tax.

11

MR. LONG: Right.

12

JUSTICE SOTOMAYOR: They don't fall within

13

the AIA.

14

MR. LONG: I think my -- my take on it is if

15

you adopted the Solicitor General's approach, there are

16

probably three penalties for alcohol and tobacco-related

17

offenses at 5114(c), 5684, and 5761 that I think would

18

be very difficult to distinguish from this one, and

19

possibly the 527(j) penalty for failure to disclose

20

political contributions.

21

If there are no further questions, I would

22

like to reserve my time.

23

CHIEF JUSTICE ROBERTS: Thank you, Mr. Long.

24

General Verrilli.

25

ORAL ARGUMENT OF DONALD B. VERRILLI, JR.,

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ON BEHALF OF THE PETITIONERS

2

GENERAL VERRILLI: Mr. Chief Justice and may

3

it please the Court:

4

This case presents issues of great moment,

5

and the Anti-Injunction Act does not bar the Court's

6

consideration of those issues. That is so even though

7

the Anti-Injunction Act is a jurisdictional limit that

8

serves what this Court described in Clintwood Elkhorn as

9

an exceedingly strong interest in protecting the

10

financial stability of the Federal Government, and even

11

though the minimum coverage provision of the Affordable

12

Care Act is an exercise of Congress's taxing power as

13

well as its commerce power.

14

Congress has authority under the taxing

15

power to enact a measure not labeled as a tax, and it

16

did so when it put section 5000A into the Internal

17

Revenue Code. But for purposes of the Anti-Injunction

18

Act, the precise language Congress used is

19

determinative. And there is no language in the

20

Anti-Injunction Act -- excuse me, no language in section

21

5000A of the Affordable Care Act or in the Internal

22

Revenue Code generally that provides a textual

23

instruction that -24

JUSTICE ALITO: General Verrilli, today you

25

are arguing that the penalty is not a tax. Tomorrow you

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are going to be back and you will be arguing that the

2

penalty is a tax.

3

Has the Court ever held that something that

4

is a tax for purposes of the taxing power under the

5

Constitution is not a tax under the Anti-Injunction Act?

6

GENERAL VERRILLI: No, Justice Alito, but

7

the Court has held in the license tax cases that

8

something can be a constitutional exercise of the taxing

9

power whether or not it is called a tax. And that's

10

because the nature of the inquiry that we will conduct

11

tomorrow is different from the nature of the inquiry

12

that we will conduct today.

13

Tomorrow the question is whether Congress

14

has the authority under the taxing power to enact it and

15

the form of words doesn't have a dispositive effect on

16

that analysis. Today we are construing statutory text

17

where the precise choice of words does have a

18

dispositive effect on the analysis.

19

JUSTICE SOTOMAYOR: Well, General, you also

20

have the Bailey child labor tax cases, because there the

21

Court said that the tax, which was a prohibitory tax

22

alone, was a tax subject to the AIA, and then it said it

23

was beyond the Court's taxing power in a separate case,

24

correct?

25

GENERAL VERRILLI: Yes. I do think, Justice

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Sotomayor, that with respect to one of the arguments

2

that my friend from the NFIB has made in of the brief,

3

that Bailey against George is a significant problem

4

because I think their argument on the constitutionality

5

under the taxing power is essentially that the

6

Affordable Care Act provision is the same thing as the

7

provision that was held unconstitutional in Bailey

8

against Drexel Furniture.

9

JUSTICE SOTOMAYOR: That's a different

10

issue. The question Justice -11

GENERAL VERRILLI: But on the same day -12

right, but on the same day as Bailey against Drexel

13

Furniture, the Court issued Bailey against George, which

14

held that the Anti-Injunction Act did bar a challenge to

15

that provision, even though the Court had concluded that

16

it was invalid under the tax power.

17

So -- and I think the reason for that has

18

been -- is clear now after Williams Packing and Bob

19

Jones, in that, in order to find that the

20

Anti-Injunction Act doesn't apply to something that

21

otherwise would be a tax that triggers it, you have to

22

conclude essentially that there is no substantial

23

argument that can be made in defense of it as a tax. We

24

don't have that here, so I don't think you can get

25

around the Anti-Injunction Act if the Court were to read

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it, as the amicus suggest it should be read, on that

2

theory, but -3

JUSTICE GINSBURG: Mr. Verrilli, a basic

4

question about your argument. If you are right about

5

the second part, that is, for purposes of the statute,

6

the Anti-Injunction statute, this penalty does not

7

constitute a tax, then does the Court need to decide

8

whether the Anti-Injunction Act in other cases, where it

9

does involve a tax, is jurisdictional?

10

GENERAL VERRILLI: No. I apologize if I'm

11

creating any confusion about that, Justice Ginsburg. We

12

think by far the better route here is to understand the

13

statute as we have proposed that it be construed as not

14

applying here. From the perspective of the United

15

States -- and if I could, I'd like to take a minute on

16

this -- the idea that the Anti-Injunction Act would be

17

construed as not being a jurisdictional provision is

18

very troubling, and we don't think it's correct.

19

And I would, if I could, follow up on a

20

question, Justice Ginsburg, that you asked Mr. Long in

21

terms of the language of the Anti-Injunction Act,

22

7421(a), which can be found at page 16a of the appendix

23

to our brief.

24

I'd ask the Court to compare that to the

25

language of the very next provision in the code, which

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is on the next page of our statutory appendix, 17a,

2

which is the refund statute, which we've talked about a

3

little bit so far this morning, 7422(a).

4

The refund statute this Court held in Dolan

5

was jurisdictional, and the Court in both Dolan and

6

Brockamp held that the statute of limitations that

7

applies to the refund statute cases is jurisdictional.

8

The language in 7422(a) is virtually

9

identical to the language in 7421(a) -10

JUSTICE KENNEDY: That is correct, although

11

in the refund context, you have the sovereign immunity

12

problem, in which we presume that has not been waived.

13

GENERAL VERRILLI: Right. But I -- 7421(a)

14

--

15

JUSTICE KENNEDY: But you're -16

GENERAL VERRILLI: -- and 7422(a) were the

17

same -18

JUSTICE KENNEDY: The language is quite

19

parallel.

20

GENERAL VERRILLI: And, originally, they

21

were the same statutory provision. They were only

22

separated out later. So, I do think that's the

23

strongest textual indication, Justice Ginsburg, that -24

that 7421(a) is jurisdictional.

25

JUSTICE KAGAN: General -35

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JUSTICE GINSBURG: But the question that I

2

asked you is, if you're right that this penalty is not

3

covered by section 7421, if you're right about that, why

4

should we deal with the jurisdictional question at all?

5

Because this statute, correct, the way you're reading -6

read it, doesn't involve a tax that's subject to the

7

Anti-Injunction Act.

8

GENERAL VERRILLI: Yes, that is exactly our

9

position. And the reason we don't -10

JUSTICE GINSBURG: So -- so, you agree that

11

we would not -- if we agree with you about the correct

12

interpretation of the statute, we need not decide the

13

jurisdiction.

14

GENERAL VERRILLI: There would be no reason

15

to decide the jurisdictional issue.

16

JUSTICE KENNEDY: Don't you want to know the

17

answer?

18

(Laughter.)

19

GENERAL VERRILLI: Justice Kennedy, I think

20

we all want to know the answer to a lot of things in

21

this case. But -- but I do -- but I do think that the

22

prudent course here is to construe the statute in the

23

manner that we read it.

24

JUSTICE KENNEDY: But you indicated -- there

25

was a discussion earlier about why does the government

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really care, they have competent attorneys, et cetera.

2

But -- and you began your argument by saying it would be

3

very troubling to say that it's not jurisdictional.

4

I'd like you to comment on that. It's not

5

for us to tell a party what's in its best interests. It

6

would seem to me that there might be some instances in

7

which the government would want to litigate the validity

8

of a tax right away and would want to waive. But you

9

say it's -- that's not true; that it's very troubling.

10

GENERAL VERRILLI: I think there are two

11

problems. One is the problem that Justice Scalia

12

identified, that if it's not jurisdictional, then courts

13

have authority to craft equitable exceptions. And it

14

may seem from where we stand now that that authority is

15

or could be very, very tightly cabined, but if -- if

16

this Court were to conclude that it isn't

17

jurisdictional, that does empower courts to find other

18

circumstances in which they might find it equitable to

19

allow cases to go forward in the absence of -- despite

20

the existence of the Anti-Injunction Act.

21

And, second, although I certainly am not

22

going to stand up here and disparage the attorneys from

23

the United States in the slightest, the reality is that

24

if this isn't jurisdictional, then it's -- the argument

25

-- it's open to the argument that it's subject to

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forfeiture by a simple omission in failing to raise it

2

in an answer. And that -- and that's a troubling

3

prospect.

4

JUSTICE KAGAN: General, can I ask -5

JUSTICE GINSBURG: How likely is it -6

CHIEF JUSTICE ROBERTS: Justice Ginsburg.

7

JUSTICE GINSBURG: How likely is it -- I

8

mean, the government is going to be defending these

9

suits. How likely is it that the government will

10

overlook the Anti-Injunction Act? It seems to me that

11

this is arming the government by saying it's waivable at

12

the government's option.

13

GENERAL VERRILLI: That's -- that is not our

14

assessment of the institutional interests of the United

15

States, Justice Ginsburg. And we do think that the -16

the right way to go in this case is to read the statute

17

as not applying to the minimum coverage provision of -18

of the Affordable Care Act.

19

CHIEF JUSTICE ROBERTS: It was -- it was the

20

calculation of the interests of the United States that

21

your predecessor made in the Davis case.

22

There, the Solicitor General exercised the

23

authority that we sanctioned to waive the

24

Anti-Injunction Act. And, of course, that couldn't be

25

done if it were jurisdictional.

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GENERAL VERRILLI: That's true,

2

Mr. Chief Justice. Several points about that, though.

3

We do agree with Mr. Long's analysis that

4

Davis occurred in -- during a time in -- in which under

5

the Standard Nut case, the Court had interpreted the

6

Anti-Injunction Act as doing no more than codifying the

7

traditional equitable principles which allowed courts

8

discretion to conclude that in certain circumstances, a

9

case could go forward.

10

Williams Packing repudiated that analysis,

11

and Bob Jones v. Simon again repudiated that analysis

12

and said, no, we're no longer abiding by that. It is

13

true that the Davis case has not formally been

14

overruled, but we do think it's fundamentally

15

inconsistent with the Court's understanding now of -16

JUSTICE BREYER: Davis was the case that -17

where a shareholder sues the corporation.

18

GENERAL VERRILLI: Yes.

19

JUSTICE BREYER: And the remedy is that the

20

corporation shouldn't pay the money to the tax

21

authority. Now, it's a little technical, but that isn't

22

actually an injunction against the tax authority

23

collecting. He's not -- they're not restraining the

24

collection of the tax. They're saying to the taxpayer,

25

don't pay it.

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GENERAL VERRILLI: Yes. And -2

JUSTICE BREYER: I don't know how far that

3

gets you.

4

GENERAL VERRILLI: Well, in fairness,

5

Justice Breyer, the United States did intervene in the

6

-- in the Davis case and was a party, and so -- not as

7

far as I'd like, I guess, is the answer.

8

JUSTICE SCALIA: Don't do it again, because

9

I think that goes too far. I don't think that's

10

restraining the collection of a tax. It's restraining

11

the payment of a tax.

12

GENERAL VERRILLI: Well -13

JUSTICE SCALIA: You don't want to let that

14

bone go, right?

15

(Laughter.)

16

GENERAL VERRILLI: Our view here is that it

17

is jurisdictional. Because it's jurisdictional as this

18

Court understands jurisdiction now, it's not waivable.

19

And, therefore, we don't think that -- that that part of

20

the Davis decision is good law.

21

JUSTICE KAGAN: General, can I ask you about

22

Reed Elsevier? Justice Ginsburg suggested that the

23

language was very similar in Reed Elsevier as it is

24

here, but there are even further similarities. Reed

25

Elsevier pointed out that the provision in question

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wasn't in Title 28. Here, too, it's not in Title 28.

2

In Reed Elsevier, it was pointed out that the provision

3

there had numerous exceptions to it. Here, too, there

4

are numerous exceptions that we find that have been

5

created by the courts over the years.

6

In Reed Elsevier, the question was

7

essentially one about timing. Come to court after you

8

file your registration. Here, too, the question is one

9

about timing. Come to court after you make -- after you

10

pay your taxes.

11

So, Reed Elsevier seems in multiple respects

12

on all fours with this case.

13

Why is that wrong?

14

GENERAL VERRILLI: I don't think so, Justice

15

Kagan. First, we think -- I guess I'm repeating myself

16

and I apologize. But we think the closest analogue is

17

the very next provision in the United States Code,

18

7422(a), which this Court has held is jurisdictional,

19

and is phrased in exactly the same way as 7421(a). In

20

fact, as I said, they were the same provision back in

21

the earlier days. That's the closest analogue.

22

This isn't -- and it's actually 7422 that's

23

a statute that says do something first. But this

24

statute is just a flat-out command that no suit shall be

25

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JUSTICE KAGAN: I take the point -2

GENERAL VERRILLI: -- the assessment or

3

collection.

4

JUSTICE KAGAN: -- but if you would comment

5

on the similarities of Reed Elsevier to this case. How

6

do you think it's different, at all?

7

GENERAL VERRILLI: Well, because the -- I

8

think the best answer to that is there are no magic

9

words, and that history and context matter, as the Court

10

said in Henderson. And the history and context here is

11

that 7422 and 7421 function together to protect an

12

exceedingly strong interest that the Court has held with

13

respect to 7422, sufficiently strong that it explains

14

the jurisdictional nature of that. The same interest

15

applies here.

16

This isn't just a matter of do X and then

17

you can -- and then you can come to court. It's just a

18

fundamentally different set of interests at stake.

19

So, we do think that that makes a big

20

difference. And -21

JUSTICE GINSBURG: Why isn't Reed

22

Elsevier -- if you're dividing jurisdiction from claims

23

processing -- it says you have to register before you

24

can sue. There are a lot of things you have to do

25

before you can sue. So, why isn't Reed Elsevier like

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you have to pay a filing fee before you can file a

2

complaint?

3

GENERAL VERRILLI: It is -- we do think it's

4

very much in that nature and different from this case,

5

Your Honor.

6

And one way I think it's helpful to get at

7

this is to look at the history. We've cited a string of

8

court of appeals cases in a footnote in our opening

9

brief, and over time, it's been very consistent that the

10

courts of appeals have treated the Anti-Injunction Act

11

as a jurisdictional provision.

12

Again, if the Court agrees with our

13

statutory construction, you don't need to reach this

14

issue. But they have -- in fact, one of those cases,

15

the Hansen case, the district court in that case had

16

dismissed the complaint under Federal Rule of Civil

17

Procedure 12(b)(6). The Court of Appeals vacated and

18

sent it back with instructions to dismiss under

19

12(b)(1), which is the subject matter jurisdiction

20

provision.

21

So I do think that, to the extent this issue

22

is before the Court, it is jurisdictional, but it

23

doesn't need to be before the Court because of the

24

statutory construction argument that we had offered.

25

JUSTICE GINSBURG: On your statutory

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construction argument, is there any other exaction

2

imposed under the Internal Revenue Code that would not

3

qualify as a tax for Anti-Injunction Act purposes, or is

4

5000A just out there all by itself?

5

GENERAL VERRILLI: It's not quite out there

6

all by itself. There are other provisions that fall

7

outside of subchapter B of chapter 68 and, therefore,

8

wouldn't be governed by the instruction in Section

9

6671(a), which answers the question about the

10

applicability of the Act for most penalties.

11

The ones that we've identified, and I may be

12

overlapping a little bit with Mr. Long here, one is 26

13

U.S.C. 857, which imposes certain penalties in

14

connection with the administration of real estate

15

investment trusts.

16

There are provisions that Mr. Long

17

identified in his brief, Sections 6038(a) through (c) of

18

the Code, which impose certain penalties with respect to

19

reporting requirements for foreign corporations.

20

We have, in addition, in footnote 22 at page

21

36 of our brief, identified three provisions that Mr.

22

Long also identified about -- about alcohol and tobacco.

23

Now -24

JUSTICE SOTOMAYOR: Could we address,

25

General, the question of whether there are any

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collateral consequences for the failure to buy -- to not

2

buy health insurance? Is the only consequence the

3

payment of the penalty?

4

The private respondents argue that there are

5

other collateral consequences such as for people on

6

probation who are disobeying the law, if they don't buy

7

health insurance, they would be disobeying the law and

8

could be subject to having their supervised release

9

revoked.

10

GENERAL VERRILLI: Yes. That is not a

11

correct reading of the statute, Justice Sotomayor. The

12

only consequence that ensues is the tax penalty. And

13

the -- we have made a representation, and it was a

14

carefully made representation, in our brief that it is

15

the interpretation of the agencies charged with

16

interpreting this statute, the Treasury Department and

17

the Department of Health and Human Services, that there

18

is no other consequence apart from the tax penalty.

19

And I do think, if I could talk for a couple

20

of minutes about the argument that was discussed as to

21

whether this can be conceived of as a suit just

22

challenging the requirement, which is entirely

23

stand-alone based on inferences drawn from the

24

exemptions. I really don't think that's right. And if

25

I could spend a minute on it, I think it's important.

45

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The exemptions in section 5000A, it is true

2

that there are two categories of exemptions. There are

3

exemptions to the penalty and exemptions to the

4

subsection (a) requirement. But the -- but I think, not

5

only as a practical matter, but I think there's a

6

textual indication and even as a legal matter,

7

they are -- they both function as exceptions to the

8

requirement.

9

First, as a practical matter, one of those

10

exemptions is a hardship exemption. And if the Court

11

will just bear with me for one minute here, it's at page

12

11A of the appendix to our brief. It provides that a

13

person can go to the Secretary of HHS and obtain a

14

hardship exemption for -- which would, as a formal

15

matter here, excuse compliance with the penalty.

16

It seems to me to make very little sense to

17

say that someone who has gone to an official of the

18

United States and obtained an exemption would,

19

nonetheless, be in a position of being a law breaker.

20

We think another way in which you can get to

21

the same conclusion slightly differently is by

22

considering the provision on the prior page, 10A, which

23

is 5000A -- 5000A(e)(3), members of Indian tribes.

24

Members of Indian tribes are exempt only

25

from the penalty as a formal matter under the structure

46

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of the statute here; but, the reason for that is because

2

members of Indian tribes obtain their healthcare through

3

the Indian Health Service, which is a clinic-based

4

system that doesn't involve insurance at all. It's an

5

entirely different system.

6

They were taken out of this statute because

7

they get their healthcare through a different system.

8

And it doesn't make any sense to think that persons

9

getting their health care through the Indian Health

10

Service are violating the law because -- exempt only

11

from the penalty, but still under a legal obligation to

12

have insurance, when the whole point of this is that

13

they're supposed to be in a clinic-based system.

14

JUSTICE SOTOMAYOR: Is your whole point that

15

this was inartful drafting by Congress, that, to the

16

extent that there is an exemption under the penalty,

17

it's an exemption from the legal obligation?

18

GENERAL VERRILLI: I guess what I would say

19

about it, Your Honor, is that the way in which this

20

statute is drafted doesn't permit the inference that my

21

friends from the NFIB are trying to draw from it.

22

And there is an additional textual

23

indication of that, which one can find at page 13 of our

24

reply brief. This is a provision that is 42 U.S.C. A,

25

section 18022(e). This is a provision that provides for

47

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a certification that certain individuals can get. And

2

it's the paragraph starting with the words "other

3

provisions," contains the quote.

4

And it says, an individual with a

5

certification that the individual is exempt from the

6

requirement under section 5000A, by reason of section

7

5000A(e)(1) of such code, is entitled to a certificate

8

that allows for enrollment in a particular program for

9

this category of people.

10

But you can see here, Congress is saying

11

it's an exemption under 5000A(e)(1), which is the

12

exemption from the penalty, and not the underlying

13

requirement is, as Congress says, an exemption from the

14

requirement of section 5000A.

15

JUSTICE ALITO: Subsection A says directly,

16

"an applicable individual shall ensure that the

17

individual has the minimum essential coverage." And you

18

are saying it doesn't really mean that, that if you're

19

not subject to the penalty, you're not under an

20

obligation to maintain the minimum essential coverage?

21

GENERAL VERRILLI: That's correct. And we

22

think that is what Congress is saying, both in the

23

provision I just pointed to, Your Honor, and by virtue

24

of the fact -- by virtue of the way the exemptions work.

25

I just think that's the -- reading this in context, that

48

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is the stronger reading of the statute.

2

CHIEF JUSTICE ROBERTS: It makes it easy for

3

the Government to drop the other shoe in the future,

4

right? You have been under the law subject to this

5

mandate all along. You have been exempt from the

6

penalty, so all they have to do is take away the

7

penalty.

8

GENERAL VERRILLI: I don't -- I don't think

9

so, Mr. Chief Justice. I don't think it makes it easy

10

for the Government in the future. We think this is the

11

fairest reading of the statute, that the -- that the -12

you cannot infer from the fact that someone is exempt

13

from the penalty, that they are still under an

14

obligation to have insurance. That's just not the

15

fairest reading of the statute.

16

JUSTICE KAGAN: Could I -17

JUSTICE ALITO: I'm sorry, go ahead.

18

JUSTICE KAGAN: The nature of the

19

representation you made, that the only consequence is

20

the penalty, suppose a person does not purchase

21

insurance, a person who is obligated to do so under the

22

statute, doesn't do it, pays the penalty instead, and

23

that person finds herself in a position where she is

24

asked the question, have you ever violated any federal

25

law, would that person have violated a federal law?

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GENERAL VERRILLI: No. Our position is that

2

person should give the answer "no."

3

JUSTICE KAGAN: And that's because -4

GENERAL VERRILLI: That if they don't pay

5

the tax, they violated a federal law.

6

JUSTICE KAGAN: But as long as they pay the

7

penalty -8

GENERAL VERRILLI: If they pay the tax, then

9

they are in compliance with the law.

10

JUSTICE BREYER: Why do you keep saying it's

11

a tax?

12

GENERAL VERRILLI: If they pay the tax

13

penalty, they're in compliance with the law.

14

JUSTICE BREYER: Thank you.

15

GENERAL VERRILLI: Thank you,

16

Justice Breyer.

17

JUSTICE BREYER: The penalty.

18

GENERAL VERRILLI: Right. That's right.

19

JUSTICE ALITO: Suppose a person who has

20

been receiving medical care in an emergency room -- has

21

no health insurance but, over the years, goes to the

22

emergency room when the person wants medical care -23

goes to the emergency room, and the hospital says, well,

24

fine, you are eligible for Medicaid, enroll in Medicaid.

25

And the person says, no, I don't want that. I want to

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continue to get -- just get care here from the emergency

2

room. Will the hospital be able to point to the mandate

3

and say, well, you're obligated to enroll?

4

GENERAL VERRILLI: No, I don't think so,

5

Justice Alito, for the same reason I just gave. I think

6

that the -- that the answer in that situation is that

7

that person, assuming that person -- well, if that

8

person is eligible for Medicaid, they may well not be in

9

a situation where they are going to face any tax penalty

10

and therefore -11

JUSTICE ALITO: No, they are not facing the

12

tax penalty.

13

GENERAL VERRILLI: Right, right.

14

JUSTICE ALITO: So the hospital will have to

15

continue to give them care and pay for it themselves,

16

and not require them to be enrolled in Medicaid.

17

GENERAL VERRILLI: Right.

18

JUSTICE ALITO: Will they be able to take

19

this out and say, well, you really should -- you have a

20

moral obligation to do it; the Congress of the United

21

States has said, you have to enroll? No, they can't say

22

that?

23

GENERAL VERRILLI: I do think it's -- I

24

think it's certainly fair to say that Congress wants

25

people in that position to sign up for Medicaid. I

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think that's absolutely right. And I think the statute

2

is structured to accomplish that objective; but, the

3

reality still is that the only consequence of

4

noncompliance is the penalty.

5

JUSTICE SOTOMAYOR: General, but I thought

6

the people who were eligible for Medicaid weren't

7

subject to the penalty. Am I wrong? I could be just

8

factually wrong.

9

GENERAL VERRILLI: Well, it all -- the

10

penalty is keyed to income.

11

JUSTICE SOTOMAYOR: Yes.

12

GENERAL VERRILLI: And the -- it's keyed to

13

a number of things. One is are -- are you making so

14

little money that you aren't obligated to file a tax

15

return. And if you're in that situation, you're not

16

subject to the penalty. It's also if the cost of

17

insurance would be more than 8 percent of your income,

18

you aren't subject to the penalty.

19

So, there isn't necessarily a precise

20

mapping between somebody's income level and their

21

Medicaid eligibility at the present moment. That will

22

depend on where things are and what the eligibility

23

requirements are in the State.

24

JUSTICE SOTOMAYOR: But those people

25

below -52

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GENERAL VERRILLI: But, as a general matter,

2

for people below the poverty line, it's almost

3

inconceivable that they're ever going to be subject to

4

the penalty, and they would, after the Act's Medicaid

5

reforms go into place, be eligible for Medicaid.

6

JUSTICE BREYER: So, is your point that the

7

tax -- what we want to do is get money from these

8

people. Most of them will bet -- get the money by

9

buying the insurance, and that will help pay. But if

10

they don't, they're going to pay this penalty, and that

11

will help, too. And the fact that we put the latter in

12

brings it within the taxing power. But as far as this

13

Act is concerned, about the injunction, they called it a

14

penalty and not a tax for a reason. They wanted it to

15

fall outside that -16

GENERAL VERRILLI: Yes.

17

JUSTICE BREYER: -- it's in a different

18

chapter, et cetera.

19

Is that what the heart of what you're

20

saying?

21

GENERAL VERRILLI: That's the essence of it.

22

They called it a penalty. They didn't give any other

23

textural instruction in the Affordable Care Act or in

24

the Internal Revenue Code that that penalty should be

25

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CHIEF JUSTICE ROBERTS: Well, except you -2

GENERAL VERRILLI: -- for Anti-Injunction

3

Act purposes.

4

CHIEF JUSTICE ROBERTS: You agree with

5

Mr. Long, isn't -- I mean, I thought you just agreed

6

with Justice Breyer that one of the purposes of the

7

provision is to raise revenue.

8

GENERAL VERRILLI: It will -- well, it

9

will raise revenue. It has been predicted by the CBO

10

that it will raise revenue, Your Honor. But even though

11

that's the case -- and I think that would be true of

12

any -- of any penalty, that it will raise some revenue,

13

but even though that's the case, there still needs to be

14

textual instruction in the statute that this penalty

15

should be treated as a tax for Anti-Injunction Act

16

purposes, and that's what's lacking here.

17

JUSTICE ALITO: After this takes effect,

18

there may be a lot of people who are assessed the

19

penalty and disagree either with whether they should be

20

assessed the penalty at all or with the calculation of

21

the amount of their penalty. So, under your

22

interpretation of the Act, all of them can now go to

23

court? None of them are barred by the Anti-Injunction

24

Act?

25

GENERAL VERRILLI: Those are two different

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things, Justice Alito. I think for reasons that

2

Justice Kennedy, I think, suggested in one of his

3

questions to Mr. Long, all of the other doctrines,

4

exhaustion of remedies and related doctrines, would

5

still be there, and the United States would rely on them

6

in those circumstances. And -- and so, I don't think

7

the answer is that they can all go to court, no.

8

JUSTICE SOTOMAYOR: Well, why isn't -9

JUSTICE ALITO: Two former -- two former

10

commissioners of the IRS have filed a brief saying that

11

your interpretation is going to lead to a flood of

12

litigation. Are they wrong on that?

13

GENERAL VERRILLI: Yes. We don't -- you

14

know -- we've taken this position after very careful

15

consideration, and we've assessed the institutional

16

interests of the United States, and we think we're in

17

the right place.

18

JUSTICE SOTOMAYOR: But tell me something,

19

why isn't this case subject to the same bars that -20

that you list in your brief? The Tax Court, at least so

21

far, considers constitutional challenges to statutes.

22

So, why aren't we -- why isn't this case subject to a

23

dismissal for failure to exhaust?

24

GENERAL VERRILLI: Because we don't -25

because the exhaustion would go to the individual amount

55

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owed, we think, and that's a different situation from

2

this case.

3

If the Court has no further questions.

4

CHIEF JUSTICE ROBERTS: Thank you, General.

5

GENERAL VERRILLI: Thank you.

6

CHIEF JUSTICE ROBERTS: Mr. Katsas.

7

ORAL ARGUMENT OF GREGORY G. KATSAS

8

ON BEHALF OF THE RESPONDENTS

9

MR. KATSAS: Mr. Chief Justice, and may it

10

please the Court:

11

Let me begin with the question whether the

12

Anti-Injunction Act is jurisdictional.

13

Justice Ginsburg, for reasons you suggested,

14

we think the text of the Anti-Injunction Act is

15

indistinguishable from the text of the statute that was

16

unanimously held to be non-jurisdictional in Reed

17

Elsevier. That statute said no suit shall be

18

instituted. This statute says no suit shall be

19

maintained. No -20

JUSTICE GINSBURG: They are different

21

things.

22

JUSTICE SOTOMAYOR: Big difference,

23

though -24

JUSTICE GINSBURG: This says

25

"immediately" -- the Reed Elsevier statute says

56

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immediately after instituted unless a copyright is

2

registered.

3

MR. KATSAS: Unless the copyright is

4

registered. And this goes -- this goes to the character

5

of the lawsuit. The statute in Reed Elsevier says

6

register your copyright and then come back to court.

7

JUSTICE GINSBURG: So, why isn't that like a

8

filing fee? Before you can maintain a suit for

9

copyright infringement, you have to register your

10

copyright?

11

MR. KATSAS: It -- it's a precondition to

12

filing suit. The -- the analogous precondition here is

13

pay your taxes and then come back to court. The point

14

is -15

JUSTICE SOTOMAYOR: No, that -- that's not

16

true. The suit here has nothing to do with hearing the

17

action. It has to do with the form of relief that

18

Congress is barring. It's not permitting -- it is not a

19

tax case; you can come in afterwards. It's not

20

permitting the court to exercise what otherwise would be

21

one of its powers.

22

MR. KATSAS: It has to be the same

23

challenge, Justice Sotomayor, or else South

24

Carolina v. Regan would say the Anti-Injunction Act

25

doesn't apply. You are right that once you file -- once

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you pay your taxes and then file the refund action, the

2

act of filing the taxes converts the suit from one

3

seeking prospective relief into one seeking money

4

damages. And in that sense, you could think of the

5

statute as a remedial limitation on the courts.

6

But whether you think of it as an exhaustion

7

requirement or a remedial limitation, neither of those

8

characterizations is jurisdictional. In

9

Davis v. Passman you said that a remedial limitation

10

doesn't go -11

JUSTICE SOTOMAYOR: It does seem strange to

12

think of a -- a law that says no court can entertain a

13

certain action and give a certain remedy as merely a

14

claim-processing rule. What the -- the court is being

15

ousted from -- from what would otherwise be its power to

16

hear something.

17

MR. KATSAS: The suit is being delayed, I

18

think is the right way of looking at it. The

19

jurisdictional apparatus in the district court is

20

present. Prospective relief under 1331, money damages

21

action under 1346. If the Anti-Injunction Act were

22

jurisdiction-ousting, one might have expected it to be

23

in Title 28 and to qualify those statutes and to use

24

jurisdictional limits.

25

JUSTICE SOTOMAYOR: So, how do you deal with

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this case and our Gonzalez -- our recent Gonzalez case,

2

where we talked about -3

MR. KATSAS: Right.

4

JUSTICE SOTOMAYOR: -- the language of the

5

COA statute that no appeal will be heard absent the

6

issuance of?

7

MR. KATSAS: Gonzalez -- Gonzalez v. Thaler

8

rests on a special rule that applies with respect to

9

appeals from one Article III court to another.

10

That's -- that explains Gonzalez, and it explains Bowles

11

before it.

12

You have five unanimous opinions in the last

13

decade in which you have strongly gone the other

14

direction on what counts as jurisdictional.

15

JUSTICE SOTOMAYOR: There is an argument

16

that we should just simply say that Bowles applies only

17

to appeals, but we haven't said that.

18

MR. KATSAS: No, you came very close. In

19

Henderson, Justice Sotomayor, you said that Bowles,

20

which is akin to Thaler, is explained by the special

21

rule and understandings governing appeals from one

22

Article III court to another. And you specifically said

23

that it does not apply to situations involving a party

24

seeking initial judicial review of agency action, which

25

is what we have here.

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So, while you're right, the texts in Bowles

2

and Thaler are not terribly different, those cases are

3

explained by that principle. Under Henderson, it

4

doesn't apply to this case.

5

The text in this case speaks to the suit,

6

the cause of action of the litigant. It doesn't speak

7

to the jurisdiction or power of the court. The

8

Anti-Injunction Act is placed in a section of the tax

9

code governing procedure. It's not placed in -10

JUSTICE SOTOMAYOR: Counsel, all of those -11

all of that in particular -12

MR. KATSAS: You did rely on that in Reed

13

Elsevier as one consideration.

14

JUSTICE SOTOMAYOR: And we haven't relied on

15

it in other cases.

16

MR. KATSAS: Another -- another

17

consideration in Reed Elsevier that cuts in our favor is

18

the presence of exceptions. You said three in Reed

19

Elsevier cut against jurisdictional characterization.

20

Here, there are 11. And -21

JUSTICE SOTOMAYOR: Many of which themselves

22

speak in very clear jurisdictional language.

23

MR. KATSAS: Well, some of them have no

24

jurisdictional language at all, and not a single one of

25

them uses the word "jurisdiction" to describe the

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ability of the court to restrain the assessment and

2

collection of taxes, which is what one would have

3

expected -4

JUSTICE BREYER: Basically, it begs the

5

difference -- language is relevant. There are a lot of

6

relevant things. But one thing that's relevant in my

7

mind is that taxes are, for better or for worse, the

8

life's blood of government.

9

MR. KATSAS: Yes.

10

JUSTICE BREYER: And so what Congress is

11

trying to do is to say there is a procedure here that

12

you go through. You can get your money back, or you go

13

through the Tax Court, but don't do this in advance for

14

the reason that we don't want 500 Federal judge -15

judges substituting their idea of what is a proper

16

equitable defense, of when there is going to be an

17

exception made about da, da, da, for the basic rule.

18

No. Okay?

19

And so there is strong reason that is there.

20

You tried to apply that reason to the copyright law.

21

You can't find it. Registration for the copyright

22

register is not the life's blood of anything. Copyright

23

exists regardless. So the reasoning isn't there.

24

The language -- I see the similarity of

25

language. I've got that. But it's the reasoning, the

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sort of underlying reason for not wanting a waiver here

2

that --that is -- has a significant role in my mind of

3

finding that it is jurisdictional. Plus the fact that

4

we have said it nonstop since that Northrop or whatever

5

that other case is.

6

MR. KATSAS: Justice Breyer, as to

7

reasoning, you -- you give an argument -- you give an

8

argument why, as a policy matter, it might make sense to

9

have a non-jurisdictional statute. But of course, this

10

Court's recent cases time and again say Congress has to

11

clearly rank the statute as non-jurisdictional in its

12

text and structure. It seems to me a general appeal to

13

statutory policies doesn't speak with sufficient

14

clarity -15

JUSTICE BREYER: That's fine. I just wanted

16

to ask the question in case you wanted to answer the

17

policy question.

18

MR. KATSAS: As to policy -- as to policy, I

19

think Helvering against Davis is the refutation of this

20

view. It is true that in most cases, the Government

21

doesn't want and Congress doesn't want people coming

22

into court. But Davis shows there may be some cases

23

including, for instance, constitutional challenges to

24

landmark Federal statutes where the Government sensibly

25

decides that its revenue-raising purposes are better

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served by allowing a party to come into court and

2

waiving its defense. That's what the Solicitor General

3

did in Davis, and this Court accepted that waiver.

4

As for prior cases, we have the holding in

5

Davis and the holding in all of the equitable exception

6

cases like Williams Packing, the Government -7

JUSTICE SOTOMAYOR: So why don't we say -8

why don't we say it's jurisdictional except when the

9

Solicitor General waives?

10

MR. KATSAS: You have used -11

JUSTICE SOTOMAYOR: Why would that not

12

promote Congress's policy of ensuring -- or Congress,

13

explicitly says -14

MR. KATSAS: It's jurisdictional except when

15

the Solicitor General waives it?

16

JUSTICE SOTOMAYOR: Yes. It's a

17

contradiction in terms. I don't disagree. I don't

18

disagree.

19

MR. KATSAS: It is a contradiction in terms.

20

All of your cases analyze the situation as if the

21

statute is jurisdictional, then it's not subject to

22

waiver. If you were to construe this as such a one-of

23

unique statute, it seems to me we would still win

24

because the Solicitor General with full knowledge of the

25

Anti-Injunction Act argument available to him

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affirmatively gave it up. This is not just a forfeiture

2

where a Government lawyer is -- through inadvertence

3

fails to raise an argument. This is a case where the

4

Government -5

JUSTICE SOTOMAYOR: They raised it and then

6

gave it up.

7

MR. KATSAS: They made it below. They know

8

what it is; and not only are they not pursuing it here,

9

they are affirmatively pursuing an argument on the other

10

side.

11

JUSTICE KAGAN: Mr. Katsas, is your basic

12

position that when we are talking about the jurisdiction

13

of the district courts, a statute has to say it's

14

jurisdictional to be jurisdictional?

15

MR. KATSAS: I wouldn't go quite that far.

16

I think at a minimum, it has -- it has to either say

17

that or at least be directed to the courts which is a

18

formulation you have used in your cases and which is the

19

formulation that Congress used in the Tax Injunction

20

Act, but did not use in this Statute.

21

JUSTICE KAGAN: Well, how would -- I mean, I

22

suppose one could try to make a distinction between this

23

case and Reed Elsevier by focusing on the difference

24

between instituting something and maintaining something,

25

and suggesting that instituting is more what a litigant

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does, and maintaining, as opposed to dismissing, is more

2

of what judge does.

3

MR. KATSAS: I don't think so, Justice

4

Kagan, because we have an adversarial system, not an

5

inquisitorial one. The parties maintain their lawsuits,

6

I think, is the more natural way of thinking of it.

7

If I could turn -- if I could turn to the

8

merits question on the AIA before my time runs out.

9

The purpose of this lawsuit is to challenge

10

a requirement -- a Federal requirement to buy health

11

insurance. That requirement itself is not a tax. And

12

for that reason alone, we think the Anti-Injunction Act

13

doesn't apply.

14

What the amicus effectively seeks to do is

15

extend the Anti-Injunction Act, not just to taxes which

16

is how the statute is written, but to free-standing

17

nontax legal duties. And it's just -18

CHIEF JUSTICE ROBERTS: The whole point -19

the whole point of the suit is to prevent the collection

20

of penalties.

21

MR. KATSAS: Of taxes, Mr. Chief Justice.

22

CHIEF JUSTICE ROBERTS: Well, prevent the

23

collection of taxes. But the idea that the mandate is

24

something separate from whether you want to call it a

25

penalty or tax just doesn't seem to make much sense.

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MR. KATSAS: It's entirely separate, and let

2

me explain to you why.

3

CHIEF JUSTICE ROBERTS: It's a command. A

4

mandate is a command. Now, if there is nothing behind

5

the command, it's sort of, well, what happens if you

6

don't follow the mandate? And the answer is nothing, it

7

seems very artificial to separate the punishment from

8

the crime.

9

MR. KATSAS: I'm not sure the answer is

10

nothing, but even assuming it were nothing, it seems to

11

me there is a difference between what the law requires

12

and what enforcement consequences happen to you. This

13

statute was very deliberately written to separate

14

mandate from penalty in several different ways.

15

They are put in separate sections. The

16

mandate is described as a "legal requirement" no fewer

17

than 20 times, three times in the operative text and 17

18

times in the findings. It's imposed through use of a

19

mandatory verb "shall." The requirement is very well

20

defined in the statute, so it can't be sloughed off as a

21

general exhortation, and it's backed up by a penalty.

22

Congress then separated out mandate

23

exceptions from penalty exceptions. It defined one

24

category of people not subject to the mandate. One

25

would think those are the category of people as to whom

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Congress is saying: You need not follow this law. It

2

then defined a separate category of people not subject

3

to the penalty, but subject to the mandate. I don't

4

know what that could mean other than -5

CHIEF JUSTICE ROBERTS: Why would you have a

6

requirement that is completely toothless? You know, buy

7

insurance or else. Or else what? Or else nothing.

8

MR. KATSAS: Because Congress reasonably

9

could think that at least some people will follow the

10

law precisely because it is the law. And let me give

11

you an example of one category of person that might

12

be -- the very poor, who are exempt from the penalty but

13

subject to the mandate. Mr. Long says this must be a

14

mandate exemption because it would be wholly harsh and

15

unreasonable for Congress to expect people who are very

16

poor to comply with the requirement to obtain health

17

insurance when they have no means of doing so.

18

That gets things exactly backwards. The

19

very poor are the people Congress would be most

20

concerned about with respect to the mandate to the

21

extent one of the justifications for the mandate is to

22

prevent emergency room cost shifting when people receive

23

uncompensated care. So they would have had very good

24

reason to make the very poor subject to the mandate, and

25

then they didn't do it in a draconian way; they gave the

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very poor a means of complying with the insurance

2

mandate, and that is through the Medicaid system.

3

JUSTICE KAGAN: Mr. Katsas, do you think a

4

person who is subject to the mandate but not subject to

5

the penalty would have standing?

6

MR. KATSAS: Yes, I think that person would,

7

because that person is injured by compliance with the

8

mandate.

9

JUSTICE KAGAN: What would that look like?

10

What would the argument be as to what the injury was?

11

MR. KATSAS: The injury -- when that subject

12

to the mandate, that person is required to purchase

13

health insurance. That is a forced acquisition of an

14

unwanted good. It's a classic pocketbook injury.

15

But even if I'm wrong about that question,

16

Justice Kagan, the question of who has standing to bring

17

the challenge that we seek to bring seems to me very

18

different -- your hypothetical plaintiff is very

19

different from the actual plaintiffs. We have

20

individuals who are planning for compliance in order to

21

avoid a penalty, which is what their affidavits say.

22

And we have the States, who will be subject no doubt to

23

all sorts of adverse ramifications if they refuse to

24

enroll in Medicaid the people who are forced into

25

Medicaid by virtue of the mandate.

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So we don't have the problem of no adverse

2

consequences in the case.

3

And then, we have the separate distinction

4

between the question of who has Article III standing in

5

order to maintain a suit and the question of who is

6

subject to a legal obligation. And you've said in your

7

cases that even if there may be no one who has standing

8

to challenge a legal obligation like the incompatibility

9

clause or something, that doesn't somehow convert the

10

legal obligation into a legal nullity.

11

Finally, with respect to the States, even if

12

we are wrong about everything I've said so far, the

13

States clearly fall within the exception recognized in

14

South Carolina against Regan. They are injured by the

15

mandate because the mandate forces 6 million new people

16

onto their Medicaid rolls. But they are not directly

17

subject to the mandate, nor could they violate the

18

mandate and incur a penalty.

19

JUSTICE KAGAN: Could I just understand, Mr.

20

Katsas, when the States say that they are injured, are

21

they talking about the people who are eligible now, but

22

who are not enrolled? Or are they also talking about

23

people who will become newly eligible?

24

MR. KATSAS: It's people who will enroll -25

people who wouldn't have enrolled had they been given a

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voluntary choice.

2

JUSTICE KAGAN: But who are eligible now.

3

MR. KATSAS: That's the largest category. I

4

think there could be future eligibles who would enroll

5

because they are subject to a legal obligation but

6

wouldn't have enrolled if given a voluntary choice.

7

But I'm happy to -- I'm happy to focus on

8

currently eligible people who haven't enrolled in

9

Medicaid. That particular class is the one that gives

10

rise to, simply in Florida alone, a pocketbook injury on

11

the order of 500 to $600 million per year.

12

JUSTICE KAGAN: But that does seem odd, to

13

suggest that the State is being injured because people

14

who could show up tomorrow with or without this law

15

will -- will show up in greater numbers. I mean,

16

presumably the State wants to cover people whom it has

17

declared eligible for this benefit.

18

MR. KATSAS: They -- they could, but they

19

don't. What the State wants to do is make Medicaid

20

available to all who are eligible and choose to obtain

21

it. And in any event -22

JUSTICE GINSBURG: Why would somebody not

23

choose to obtain it? Why -- that's one puzzle to me.

24

There's this category of people who are Medicaid

25

eligible; Medicaid doesn't cost them anything. Why

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would they resist enrolling?

2

MR. KATSAS: I -- I don't know, Justice

3

Ginsburg. All I know is that the difference between

4

current enrollees and people who could enroll but have

5

not is, as I said, on the -- is a $600 million delta.

6

And -7

JUSTICE GINSBURG: But it may be just that

8

they haven't been given sufficient information to

9

understand that this is a benefit for them.

10

MR. KATSAS: It's possible, but all we're

11

talking about right now is the standing of the States.

12

And the only arguments made against the standing of the

13

States -- I mean, there is a classic pocketbook injury

14

here. The only arguments made about -- against the

15

standing of the States are, number one, this results

16

from third-party actions. That doesn't work, because

17

the third-party actions are not unfettered in -- in the

18

sense of Lujan; they are coerced in the sense of

19

Bennett v. Spear. Those people are enrolling because

20

they are under a legal obligation to do so.

21

The second argument made against the States'

22

standing is that the States somehow forfeit their

23

ability to challenge the constitutionality of a

24

provision of Federal law because they voluntarily choose

25

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JUSTICE SOTOMAYOR: I'm -- I'm a little bit

2

confused. And this is what I'm confused about.

3

There -- there is a challenge to the individual mandate.

4

MR. KATSAS: Yes.

5

JUSTICE SOTOMAYOR: All right. What is -6

the fact that the State is challenging Medicaid, how

7

does it give the State standing to challenge an

8

obligation that is not imposed on the State in any way?

9

MR. KATSAS: The -- the principal theory for

10

State standing is that States are challenging the

11

mandate because the mandate injures them when people are

12

forced to enroll in Medicaid.

13

Now, it is true they are not directly

14

subject to the mandate, but -15

JUSTICE SOTOMAYOR: Yes. That's what I'm -16

MR. KATSAS: Okay. Let me -- let me try

17

to -18

JUSTICE SOTOMAYOR: -- a little confused by.

19

MR. KATSAS: Let me try it this way -- may I

20

finish the thought?

21

CHIEF JUSTICE ROBERTS: Go ahead.

22

MR. KATSAS: In South Carolina v. Regan, the

23

State was not subject to the tax at issue. The State

24

was harmed because -- as the issuer of the bonds, and

25

the bond holders were the ones subject to the tax. So

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the State is injured not because it is the direct object

2

of the Federal tax, but because of its relationship to

3

the regulated party as issuer/bond holder.

4

CHIEF JUSTICE ROBERTS: Thank you,

5

Mr. Katsas.

6

MR. KATSAS: Thank you, Mr. Chief Justice.

7

CHIEF JUSTICE ROBERTS: Mr. Long, you have 5

8

minutes remaining.

9

REBUTTAL ARGUMENT OF ROBERT A. LONG

10

FOR COURT-APPOINTED AMICUS CURIAE

11

MR. LONG: Everyone agrees that the section

12

5000A penalty shall be assessed and collected in the

13

same manner as taxes. And the parties' principal

14

argument why that does not make the Anti-Injunction Act

15

applicable is that, well, that simply goes to the

16

Secretary's activities.

17

And I would simply ask, if -- if you look at

18

chapters 63 and 64 of the Internal Revenue Code, which

19

are the chapters on assessment and collection, they are

20

not just addressed to the Secretary. There are many

21

provisions in there that are addressed to courts and

22

indeed talk about this interaction, the very limited

23

situations in which courts are permitted to restrain the

24

assessment and collection of taxes.

25

There was a statement made that there

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aren't -- and many of the exceptions to the

2

Anti-Injunction Act are in the assessment and collection

3

provisions -- there was a statement made that none of

4

these directly confer jurisdiction to restrain the

5

assessment and collection of taxes. That's not true.

6

In footnote 11 of our opening brief, we cite several.

7

I'll simply mention section 6213 as an example.

8

That says -- I quote: "Notwithstanding the

9

provisions of section 7421(a), the making of such

10

assessment or the beginning of such proceeding or levy

11

during the time such prohibition is in force may be

12

enjoined by a proceeding in the proper court, including

13

the Tax Court. The Tax Court shall have no jurisdiction

14

to enjoin any action or proceeding or order any refund

15

under this subsection unless a timely petition for

16

redetermination of the deficiency has been filed, and

17

then only in respect of the deficiency that is the

18

subject of such petition."

19

JUSTICE BREYER: And all that's going to

20

really what I think Congress's intent was meant to be in

21

sticking the collection thing into chapter 68, and -22

and it's certainly an argument in your favor.

23

The -- the over-arching thing in my mind is

24

it's -- it's up to Congress, within leeway. And they

25

did not use that word "tax," and they did have a couple

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of exceptions. And it is true that all this language

2

that you quote -- you know, the first two sentences and

3

so forth, it talks about the use of tax in the IRC. It

4

talks about the penalties and liabilities provided by

5

this subchapter. And we look over here and it's a

6

penalty and liability provided by a different law, which

7

says collect it through the subchapter, and it has

8

nothing to do with the IRC. See?

9

So we've got it in a separate place, we can

10

see pretty clearly what they're trying to do. They

11

couldn't really care very much about interfering with

12

collecting this one. That's all the statutory argument.

13

Are you following me?

14

You see? I'm trying to get you to focus on

15

that kind of argument.

16

MR. LONG: I mean, I think I'm following

17

you, but -- but the fact that it's not in the particular

18

subchapter for assessable penalties in my view makes no

19

difference, because they said it's still clearly -- it's

20

assessed and collected in the same manner -21

JUSTICE BREYER: Yes, it is.

22

MR. LONG: -- as the penalty in that

23

subchapter, and those penalties are collected in the

24

same manner as taxes.

25

JUSTICE BREYER: Yes, yes.

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MR. LONG: And so that's -- I think it's -2

it's rather detailed, but I think it's a rather clear

3

indication that the Anti-Injunction Act applies.

4

The -- the refund statute that does

5

specifically refer to penalties, that has nothing to do

6

with this argument that it's assessed and collected in

7

the same manner as a tax. That would simply go to the

8

point that well, you can't just call it a tax, because

9

they've referred to it as a penalty.

10

And finally, on jurisdiction, you know, I

11

think the key point is we have a long line of this

12

Court's decisions that's really been ratified by

13

Congress, with all these exceptions in jurisdictional

14

terms.

15

As I read Bowles and John R. Sand & Gravel,

16

the -- the gist of those decisions was not any special

17

sort of rule about appeals, it's that when we have that

18

situation, which I would submit applies as much to the

19

collection of Federal taxes as it does to appeals from

20

Federal district courts when we have this degree of -21

of precedent, including precedent from Congress in the

22

form of amendments to this Anti-Injunction Act, that

23

should be -- the presumption should be that this is

24

jurisdictional.

25

If there are no further questions.

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CHIEF JUSTICE ROBERTS: Mr. Long, you were

2

invited by this Court to defend the proposition that the

3

Anti-Injunction Act barred this litigation. You have

4

ably carried out that responsibility, for which the

5

Court is grateful.

6

MR. LONG: Thank you.

7

CHIEF JUSTICE ROBERTS: We will continue

8

argument in this case tomorrow.

9

(Whereupon, at 11:41 a.m., the case in the

10

above-entitled matter was submitted.)

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

77

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A

58:2,21 60:8

agencies 45:15

analysis 32:16

62:12

abiding 39:12

63:25 64:20

agency 59:24

32:18 39:3,10

appeals 43:8,10

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65:12,15 73:14 agree 36:10,11

39:11

43:17 59:9,17

able 6:2 51:2,18

74:2 76:3,22

39:3 54:4

analyze 63:20

59:21 76:17,19

ably 77:4

77:3

agreed54:5

annual 18:19

APPEARANC...

above-entitled

action 8:11 9:9

agrees 43:12

answer4:19 5:2

1:15

1:12 77:10

9:13 57:17 58:1

73:11

16:9 26:10

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36:17,20 38:2

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60:6 74:14

72:21

40:7 42:8 50:2

34:22 35:1

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51:6 55:7 62:16

46:12

12:9 20:9,11,13 active 9:6

17:21 18:2

66:6,9

applicability

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activities 73:16

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44:10

accept 4:16

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30:3,13 32:22

Anthracite 11:5

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16:20

Act's 53:4

65:8

Anti-Injunction

28:10 48:16

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3:11,18 4:3 5:4

73:15

13:13,20 63:3

44:20

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5:9,23 6:10,21

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47:22

44:22

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Alito 10:2,8,17

11:8,13,24 14:1 applies 3:13,18

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19:7 20:12 29:2

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9:4 73:20,21

32:6 48:15

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49:17 50:19

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51:5,11,14,18

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6:4,10,13 7:3,7

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31:20 32:5

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22:20 44:14

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11:8,13,24 14:1 administrative

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33:20 57:25

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allowing 12:13

36:7 37:20

59:23 60:4

18:12,16 19:7

administratively

63:1

38:10,24 39:6

61:20 65:13

19:12,13,13,15

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allows 48:8

43:10 44:3 54:2 applying 34:14

20:12 21:12

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54:15,23 56:12

38:17

22:2,3,6,10,18

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amendments

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61:13

11:23 13:23

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76:22

63:25 65:12,15

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31:5,7,12,18

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69:1

amicus 1:17 2:4

76:22 77:3

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33:6,14,20,25

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Anybody 25:25

32:1

34:8,16,21 36:7 affirmatively

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37:20 38:10,18

64:1,9

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38:24 39:6

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43:10 44:3,10

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41:16

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53:13,23 54:3

30:2 31:11,21

analogous 57:12 apparatus 58:19

25:1 26:8 27:10

54:15,22,24

33:6 38:18

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apparent 15:21

30:25 33:4,23

56:12,14 57:24

53:23

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appeal 59:5

34:4 37:2,24,25

Alderson Reporting Company

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43:24 44:1

37:22

56:8

broad 18:16,17

43:15,15 54:11

45:20 56:7

authority 31:14

benefit 70:17

Brockamp 35:6

54:13 55:19,22

59:15 62:7,8

32:14 37:13,14

71:9

business 19:22

56:2 57:19 59:1

63:25 64:3,9

38:23 39:21,22 Bennett 71:19

buy 27:24 28:19

59:1 60:4,5

68:10 71:21

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best 11:15 12:25

28:20 45:1,2,6

62:5,16 64:3,23

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B

big 42:19 56:22

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32:23 36:21

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71:23 72:3,7

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41:12 42:5 43:4 challenges 55:21

Alderson Reporting Company

Official - Subject to Final Review

80

62:23

58:14

collect 4:20 23:1

19:16 46:15

69:2

challenging

clarity 28:7

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considering

44:7 53:18

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73:19

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conclude 3:18

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character57:4

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collection 3:13

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constitute 34:7

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60:19

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Chief 3:3,9 7:7

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11:25 12:9

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59:18

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closest 41:16,21

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code 3:15 6:20

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74:20

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converts 58:2

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consequences

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45:1,5 66:12

57:6,9,10 61:20

Alderson Reporting Company

Official - Subject to Final Review

81

61:21,22

54:23 55:7,20

D

definition 18:16

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56:1,20 60:2

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60:7 61:1,13

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66:13

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40:20

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determination

discussion 36:25

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declarations

determinative

dismissal 55:23

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26:12

31:19

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declared70:17

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18:14 66:20,23

22:8 25:16

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27:22,23 32:11 district 8:14

Alderson Reporting Company

Official - Subject to Final Review

82

43:15 58:19

Elsevier8:11,20

39:7 61:16 63:5

67:14

62:3 72:6 75:17

64:13 76:20

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exemptions

factually 52:8

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exhaustion 6:8

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existence 37:20

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file 14:25 41:8

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43:14 48:24

filing 43:1 57:8

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13:1 37:13,18

48:11,12,13

49:12 53:11

57:12 58:2

Alderson Reporting Company

Official - Subject to Final Review

83

finally 69:11

form 32:15 57:17

37:10 38:4,13

64:15 72:21

happen16:3,13

76:10

76:22

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forward 6:1

51:4,13,17,23

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finds 49:23

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health 1:3 3:5

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found 20:22 30:4

53:1,16,21 54:2

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first 3:12,19 4:19 four 13:12

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function 42:11

19:10 24:13

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flood 55:11

46:7

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Florida 1:7 3:5

fundamentally

35:23 36:1,10

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held 32:3,7 33:7

70:10

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focus 70:7 75:14

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focusing 64:23

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government's

helpful 43:6

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footnote 43:8

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30:24 31:2,24

38:16 39:9

47:18

holder73:3

forfeit 71:22

32:6,19,25

40:14 46:13

holders 72:25

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33:11 34:10

49:17 53:5

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holding 63:4,5

64:1

35:13,16,20,25

54:22 55:7,25

half 16:18

honestly 16:13

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36:8,14,19

58:10 61:12,12 Hansen43:15

24:4

Alderson Reporting Company

Official - Subject to Final Review

84

Honor 43:5

incompatibility

injury 68:10,11

31:16,21 44:2

Joint 25:5

47:19 48:23

69:8

68:14 70:10

53:24 73:18

Jones 8:2 19:21

54:10

inconceivable

71:13

interpret 13:3

20:3 27:10

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53:3

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27:6 28:16

33:19 39:11

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inquisitorial 65:5 interpretation

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instance 62:23

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judge 61:14 65:2

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instances 21:4

55:11

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47:2,3,9

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judicially 6:19

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74:4,13 76:10

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44:15

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28:10 48:4,5,16 instructions

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immediate 15:12 individuals 25:6

26:2,2 27:20,25 involved20:3

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immediately

48:1 68:20

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involving 59:23

12:23 13:2,8,18

5:13 15:21

induce 19:16

45:2,7 47:4,12

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14:1,15,23 16:2

56:25 57:1

inevitable 26:23

49:14,21 50:21 irreparable

16:3,10 23:19

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27:12

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68:1,13

55:10

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36:4,15 37:3,12

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interaction 73:22

8:20 10:22

40:17,17 41:18

72:8

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interest 5:11

13:14 33:10

42:14 43:11,22

imposes 3:11

initial 9:18 17:13

31:9 42:12,14

36:15 43:14,21

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44:13

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58:24 59:14

inadvertence

initiate 9:13

interests 37:5

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60:19,22,24

64:2

injunction 6:17

38:14,20 42:18 issuer72:24

62:3 63:8,14,21

inartful 47:15

8:13,15,18,25

55:16

issuer/bond 73:3

64:14,14 76:13

inclined9:18,21

19:12,13,15

interfere 18:4

issues 13:7 31:4

76:24

include 18:17

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31:6

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included3:22

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3:9 4:7,19,24

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6:6,13,23 7:7

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21:19 29:21

John 76:15

8:5 9:8 10:1,2,8

Alderson Reporting Company

Official - Subject to Final Review

85

10:17 11:25

64:11,21 65:3

kind 12:4,20

71:24 75:6

10:7,9 11:14

12:9,18 13:6,15

65:18,21,22

27:10 75:15

lawsuit 57:5 65:9

12:8,24 13:6,7

13:22 14:4,13

66:3 67:5 68:3

kinds 14:17

lawsuits 65:5

13:22 14:9,19

14:14 15:4,6,9

68:9,16 69:19

21:24

lawyer64:2

15:5,8,13,16

15:14,22,25

70:2,12,22 71:2 know6:14 8:6

lead 55:11

15:25 16:12

16:12,17 17:7

71:7 72:1,5,15

10:15,16 14:25 leaning 16:20

17:6,9,12 18:9

17:10,19 18:23

72:18,21 73:4,6

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18:24 19:10

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19:21 20:5,9,18

20:3,6,13,21

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47:11,17 65:17

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22:1,11,14,17

justifications

26:13 27:12,12

66:16 69:6,8,10

22:16,19 24:4,6

23:16,20 24:5

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28:2,17,25 29:3

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55:14 64:7 67:4 level 52:20

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29:23 30:9,12

13:15 22:1,11

75:2 76:10

liabilities 75:4

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32:6,19,25 33:9

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life's 61:8,22

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limit 31:7

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limitation 58:5,7

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35:6

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41:14 42:1,4,21

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lose 16:18

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litigant 60:6

lot 9:22 10:23

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67:8 68:3,6,11

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64:25

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largest 70:3

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54:18 61:5

52:11,24 53:6

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40:15

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56:9,13,20,22

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63:7,11,16 64:5 keyed 52:10,12

67:10 70:14

8:5,24 9:12

8:9,13,21 9:4

Alderson Reporting Company

Official - Subject to Final Review

86

9:10 41:25

38:8 48:18 54:5 months 5:14 7:4

numerous 11:23

option 38:12

56:19

64:21 67:4

moral 51:20

41:3,4

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70:15 71:13

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74:14

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must-buy 24:18

object 73:1

originally 35:20

51:2 65:23 66:4

31:15

24:19,22,23

objection 29:18

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N

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69:15,15,17,18

68:25 69:16

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44:12

72:3,11,11,14

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49:14 51:20

overrule 7:17

10:19 11:1

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32:10,11 42:14

69:6,8,10 70:5

overruled8:4

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members 46:23

43:4 49:18

71:20 72:8

39:14

66:19

46:24 47:2

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obtain 22:8 25:6

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manner3:21 4:2

mention 74:7

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4:14,15,16,21

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67:16 70:20,23

74:23

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need 34:7 36:12

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17:17,22,24,25 merely 58:13

43:13,23 67:1

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merits 65:8

needs 54:13

occurred39:4

73:13 75:20,24 million 69:15

neither58:7

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76:7

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26:21

odd 70:12

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22:5

74:23

new69:15

offenses 30:17

11:17 12:10,16

mapping 52:20

minimum 25:4,17 newly 69:23

offered43:24

12:19 33:18

March 1:10

25:19,23 26:22 NFIB 33:2 47:21 official 46:17

39:10 63:6

matter1:12 5:2,5

31:11 38:17

noncompliance

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page 2:2 20:23

5:15 6:19 9:18

48:17,20 64:16

52:4

Okay 61:18

25:5 34:22 35:1

42:9,16 43:19

minute 34:15

nonstop 62:4

72:16

44:20 46:11,22

46:5,6,9,15,25

45:25 46:11

nontax 65:17

old 24:7

47:23

53:1 62:8 77:10 minutes 45:20

non-jurisdictio... omission 38:1

paid 5:18 22:23

matters 21:3

73:8

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once 21:8 57:25

parade 14:15

mean 6:14,21 7:2 mistake 23:6

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16:6

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model 28:7

notice 5:21

ones 44:11 72:25 paragraph 48:2

12:24 16:13

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one-of 63:22

parallel 35:19

17:12,19,20,21 moment 31:4

14:3,10 74:8

open37:25

part 16:22,22

18:6 19:6 21:18

52:21

nullity 69:10

opening 43:8

18:18,21 22:17

22:9 23:24 24:7 Monday 1:10

number3:4

74:6

22:23 24:9 34:5

25:2,13,21

money 39:20

10:10 52:13

operative 66:17

40:19

26:11 27:7,9

52:14 53:7,8

71:15

opinions 59:12

participate 71:25

29:15,17,19

58:3,20 61:12

numbers 70:15

opposed65:1

particular 7:10

Alderson Reporting Company

Official - Subject to Final Review

87

48:8 60:11 70:9

26:25 28:5,9,13

68:4,6,7,12

political 30:20

previously 20:14

75:17

28:14,18 29:20 persons 47:8

poor 67:12,16,19 pre-statutory

particularly 4:23

29:21,24 30:7

perspective

67:24 68:1

7:22

18:2

30:19 31:25

34:14

portions 30:2

primarily 19:23

parties 65:5

32:2 34:6 36:2

petition 74:15,18 position 26:8

19:24

73:13

45:3,12,18 46:3 Petitioners 1:5

36:9 46:19

primary 27:14

parts 5:2

46:15,25 47:11

1:20 2:7 31:1

49:23 50:1

principal 72:9

party 4:23 9:13

47:16 48:12,19 pharmaceutical

51:25 55:14

73:13

37:5 40:6 59:23

49:6,7,13,20

22:4

64:12

principle 18:25

63:1 73:3

49:22 50:7,13

phrased41:19

possible 71:10

60:3

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50:17 51:9,12

picks 22:20

possibly 30:19

principles 7:22

18:15

52:4,7,10,16

place 24:12 53:5

poverty 53:2

39:7

Passman 58:9

52:18 53:4,10

55:17 75:9

power13:10

prior 46:22 63:4

pattern 8:15

53:14,22,24

placed60:8,9

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privacy 23:4

pay 3:11 5:9,12

54:12,14,19,20 places 20:19

32:4,9,14,23

private 45:4

6:25 19:19 25:7

54:21 65:25

22:2

33:5,16 53:12

probably 16:20

25:25 26:1,21

66:14,21,23

plaintiff 11:11

58:15 60:7

29:16 30:16

27:25,25 28:9

67:3,12 68:5,21

27:11 68:18

powers 57:21

probation 45:6

39:20,25 41:10

69:18 73:12

plaintiffs 15:19

practical 5:2,5

problem16:21

43:1 50:4,6,8

75:6,22 76:9

25:3,21 26:20

46:5,9

25:10,15 29:6

50:12 51:15

people 15:3

68:19

precedent 76:21

33:3 35:12

53:9,10 57:13

16:14 45:5 48:9 planning 68:20

76:21

37:11 69:1

58:1

51:25 52:6,24

plans 22:4

precise 31:18

problems 29:17

paying 21:2

53:2,8 54:18

pleading 27:16

32:17 52:19

37:11

28:18

62:21 66:24,25 please 3:10 31:3

precisely 67:10

procedure 22:20

payment 40:11

67:2,9,15,19

56:10

precondition

43:17 60:9

45:3

67:22 68:24

plugged22:25

57:11,12

61:11

pays 49:22

69:15,21,23,24 Plus 62:3

predecessor

proceeding 4:16

penalties 3:22

69:25 70:8,13

pocketbook

38:21

8:16 74:10,12

5:7 19:16 20:17

70:16,24 71:4

68:14 70:10

predict 16:13

74:14

21:1,1,18,24

71:19 72:11

71:13

predicted54:9

proceedings 8:18

22:2 29:13

percent 52:17

point 12:4 17:4

presence 60:18

process 5:22

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period 7:20

24:16 42:1

58:20

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12:10,12

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presents 31:4

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penalty 3:14,16

permit 47:20

53:6 57:13

presumably

42:23

3:20,23 4:1,10

permitted5:17

65:18,19 76:8

70:16

program 48:8

5:4,5,10,18 6:1

73:23

76:11

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17:18 19:8,19

57:20

41:2 48:23

76:23

74:11

20:8 21:21

person 4:6 28:17 points 4:8 12:1

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24:15,17,20,23

46:13 49:20,21

39:2

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32:21

24:25 25:5,7,18

49:23,25 50:2

policies 62:13

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25:19,24 26:1,1

50:19,22,25

policy 62:8,17,18

27:2 65:19,22

proper61:15

26:14,20,21,24

51:7,7,8 67:11

62:18 63:12

67:22

74:12

Alderson Reporting Company

Official - Subject to Final Review

88

proposed34:13

puts 26:8

read 10:12 13:16

56:25 57:5

remedies 5:12

proposition 77:2

puzzle 70:23

18:6 28:8 33:25

60:12,17,18

6:3,7,16 55:4

prosecution 24:1

34:1 36:6,23

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remedy 39:19

prospect 38:3

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38:16 76:15

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58:13

prospective 58:3 qualify 44:3

reading 29:5,9

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58:23

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question 14:14

45:11 48:25

22:14 76:9

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reporting 44:19

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representation

provide 17:20

23:19,20 27:5

real 44:14

14:24,25 35:2,4

45:13,14 49:19

22:22

29:1 32:13

reality 37:23

35:7,11 58:1

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33:10 34:4,20

52:3

74:14 76:4

39:11

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really 21:19

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41:6,8 44:9,25

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refutation 62:19

required68:12

31:22 46:12

49:24 56:11

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requirement

47:25

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51:19 74:20

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72:22

24:22 25:4,6,18

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reason 3:15 21:9 regardless 13:17

25:20,23 26:23

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30:21 55:3 56:3

28:12 33:17

61:23

27:1 45:22 46:4

31:11 33:6,7,15

76:25

36:9,14 47:1

register42:23

46:8 48:6,13,14

34:17,25 35:21 quickly 12:15

48:6 51:5 53:14

57:6,9 61:22

58:7 65:10,10

38:17 40:25

quite 7:12 9:1

61:14,19,20

registered57:2,4

65:11 66:16,19

41:2,17,20

19:11 35:18

62:1 65:12

registration 41:8

67:6,16

43:11,20 46:22

44:5 64:15

67:24

61:21

requirements

47:24,25 48:23 quote 48:3 74:8

reasonable 28:8

regulated73:3

44:19 52:23

54:7 71:24

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22:21 24:11

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rejected8:1

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19:17,20,25

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18:2,24 25:2

related21:20

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38:1 54:7,9,10

punishment 66:7

55:1 56:13

55:4

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54:12 64:3

purchase 28:15

REBUTTAL

relationship 73:2

42:13 44:18

raised64:5

49:20 68:12

2:11 73:9

release 45:8

59:8 67:20

raises 15:11

pure 13:9

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relevant 61:5,6,6

69:11 74:17

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respondents

ramifications

27:5,7,15 65:9

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56:8

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17:1 31:17 32:4

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60:12

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ratified76:12

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reach 14:18

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41:2,6,11 42:5

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53:11 66:15

42:21,25 56:16

58:9

41:25 61:1

Alderson Reporting Company

Official - Subject to Final Review

89

73:23 74:4

ROBERT 1:16

27:24 29:20,24 sends 5:21

Simon 39:11

restraining 4:4

2:3,12 3:7 73:9

30:2 41:23

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ROBERTS 3:3

42:23 48:4,13

29:19 46:16

simply 4:15 6:12

23:18 39:23

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48:15 50:23,25

47:8 58:4 62:8

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38:6,19 49:2

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57:5 58:12

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45:11 47:14

Alderson Reporting Company

Official - Subject to Final Review

90

52:5,11,24 55:8

72:23 73:1

stay 8:16

sue 42:24,25

talk 17:4 23:16

55:18 56:22

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strange 58:11

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States 1:1,13

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Alderson Reporting Company

Official - Subject to Final Review

91

26:18,18 29:14

10:12,14 11:14 time 6:2 7:6 9:19

23:14 27:19,23

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Alderson Reporting Company

Official - Subject to Final Review

92

violate 69:17

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500 61:14 70:11

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Alderson Reporting Company