IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

Pensacola Division 

STATE OF FLORIDA, by and through 

PAM BONDI, ATTORNEY GENERAL 

OF THE STATE OF FLORIDA, et al., 

 Plaintiffs, 

v. Case No.: 3:10-cv-91-RV/EMT 

UNITED STATES DEPARTMENT OF 

HEALTH AND HUMAN SERVICES; 

KATHLEEN SEBELIUS, in her official 

capacity as the Secretary of the United States 

Department of Health and Human Services; 

UNITED STATES DEPARTMENT OF 

THE TREASURY; TIMOTHY F. 

GEITHNER, in his official capacity as the 

Secretary of the United States Department 

of the Treasury; UNITED STATES 

DEPARTMENT OF LABOR; and HILDA 

L. SOLIS, in her official capacity as Secretary 

of the United States Department of Labor, 

 Defendants. 

___________________________________________/ 

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO

DEFENDANTS’ MOTION TO CLARIFY

 The Court should deny Defendants’ inexplicably delayed motion to “clarify” its judgment 

of January 31, 2011. A declaratory judgment has “the force and effect of a final judgment or 

decree.” 28 U.S.C. § 2201(a). “Clarification” is unnecessary because the Court’s Order is clear 

and unambiguous: (1) the Patient Protection and Affordable Care Act (the “ACA” or “Act”) is 

unconstitutional and “the entire Act must be declared void”; and (2) the Court’s “declaratory 

judgment is the functional equivalent of an injunction” because “there is a long-standing 

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presumption that officials of the Executive Branch will adhere to the law as declared by the 

Court.” Order Granting Summary Judgment at 75-76 [Doc. 150] (“Order”) (citations omitted). 

 This Court accorded respect to a coordinate branch of government by assuming that 

compliance with a duly-entered declaratory judgment order would be forthcoming and thus 

dispensing with an injunctive order. Despite the well-established presumption that the United 

States will “adhere to the law,” Defendants now ask the Court to “clarify” its Order so as to 

allow them, irrespective of the Court’s entry of final judgment in Plaintiffs’ favor, to continue 

enforcing the ACA against “the plaintiff states, National Federation of Independent Business 

(“NFIB”) members, and individual plaintiffs pending appeal.” Defendants’ Motion to Clarify 

[Doc. 156] (“Motion”) at 4. If the Government was not prepared to comply with the Court’s 

judgment, the proper and respectful course would have been to seek an immediate stay, not an 

untimely and unorthodox motion to clarify. Defendants’ Motion is, in fact, a transparent attempt, 

through the guise of seeking clarification, to obtain a stay pending appeal. 

However, Defendants conspicuously have refrained from moving forthrightly for a stay 

because they cannot meet the requisite standards for such relief. Indeed, as shown below, they 

cannot satisfy any of the four factors governing stay requests. Accordingly, because “time is of 

the essence in this matter[] and . . . everyone in this country would obviously benefit from 

certainty and final resolution of the case sooner rather than later,” Order of February 18, 2011, at 

1 [Doc. 157] (“2/18 Order”), the Court should stand by its prior Order, deny the Motion, and 

deny Defendants’ thinly-veiled request for a stay.1

 

1

 Defendants do not represent that they will persist in their non-compliance with the Court’s 

Order after the Court “clarifies” that its Order applies pending appeal, see Motion at 2, 4, 15. 

Moreover, Plaintiffs do not seek amendment of the Court’s Order and do not, therefore, renew 

their request for a formal injunction at this time. However, if Defendants’ forthcoming reply 

suggests that, absent an injunction, they will not comply with this Court’s Order, then the Court 

should specify that Defendants are enjoined from enforcing the ACA against the Plaintiff States, 

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Moreover, in denying this motion, the Court also should make clear that it does not mean 

to entertain a subsequent stay motion with the attendant further delay. If the Government does 

not intend to comply with this Court's Order, it should seek a stay from the Eleventh Circuit 

without further delay or further unexcused noncompliance. If the Court is inclined to stay its 

judgment only so long as to permit Defendants to seek a stay from the Court of Appeals, 

Plaintiffs respectfully request that such a stay not exceed five (5) days. 

Argument

I. THE COURT’S JUDGMENT IS FINAL AND BINDING

 Defendants’ assertion that “we do not understand the Court’s declaratory judgment of its 

own force to relieve the parties to this case of any obligation or deny them any rights under the 

Act while appellate review is pending,” Motion at 6, is nothing more than wishful thinking. It 

proceeds from the flawed assumption that the Court’s declaratory judgment is different in kind 

from any other final judgment fixing the rights of the parties, or somehow different from an 

order granting the same relief in a case in which the Government did not intend to appeal. 

It is black-letter law that “[a] declaratory judgment is binding on the parties before the 

court and is claim preclusive in subsequent proceedings as to the matters declared.” Charles A. 

Wright, et al., Federal Practice and Procedure § 2771 (2010). A declaratory judgment declares 

“the rights and other legal relations” among the parties before the Court and has “the force and 

effect of a final judgment.” 28 U.S.C. § 2201; see also Household Bank, F.S.B. v. JFS Group, 

320 F.3d 1249, 1253 (11th Cir. 2003); Thomas v. Blue Cross & Blue Shield Ass’n, 594 F.3d 823, 

828 (11th Cir. 2010). Were the rule otherwise, a declaratory judgment would serve “no useful 

 

NFIB and its members, and the Individual Plaintiffs, because the only reason the Court initially 

declined to enter an injunction was its “presumption” that Defendants would “adhere to the law.” 

Order at 75. 

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purpose as a final determination of rights.” Pub. Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 

237, 247 (1952). 

 Defendants’ contention that the Court needs to clarify this basic legal principle “throws 

sand in [the Court’s] eyes,” see United States v. Cinergy Corp., 623 F.3d 455, 459 (7th Cir. 

2010), after the Court sought to accord respect to a coordinate branch by assuming injunctive 

relief was unnecessary. As the Seventh Circuit aptly has remarked, “a declaratory judgment is a 

real judgment, not just a bit of friendly advice.” Badger Catholic, Inc. v. Walsh, 620 F.3d 775, 

782 (7th Cir. 2010). Beyond being procedurally improper, Defendants’ Motion also is rife with 

substantive errors and misstatements of the law. Defendants’ principal example of a declaratory 

judgment case where the government has been “free to continue to apply” a statute pending 

appellate review is Kennedy v. Mendoza-Martinez, 372 U.S. 144, 153-155 (1963). MendozaMartinez is wholly inapposite, however, because the Court’s decision was predicated on 28 

U.S.C. § 2282, a statute that precluded single-judge district courts from barring the operation of a 

federal regulatory scheme on constitutional grounds, and that statute was repealed by Congress 

more than a generation ago, in 1976. See Pub. L. No. 94-381, 90 Stat. 1119 (Aug. 12, 1976). 

Under current law, single-judge district courts are presumed to have the authority to bar the 

operation of any act of Congress on constitutional grounds. See 28 U.S.C. § 2284(a).2

Carreno v. Johnson, 899 F. Supp. 624, 628 (S.D. Fla. 1995), also relied on by 

Defendants, is similarly inapposite. There, the District Court for the Southern District of Florida 

declined to be bound by the declaratory judgment of the District Court for the District of 

Columbia as to the unconstitutionality of the extradition statute, 18 U.S.C. § 3184, entered in an 

 

2

 In this respect, Defendants’ quotation of Mendoza-Martinez that “‘a single federal judge’ could 

‘paralyze totally the operation of an entire regulatory scheme, either state or federal, by issuance 

of a broad injunctive order’ prior to appellate review,” Motion at 5, is merely a statement of a 

policy concern underlying the discarded 28 U.S.C. § 2282. 

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entirely separate case. Carreno stands for nothing more than the proposition that non-mutual 

offensive collateral estoppel is not available against the federal government. The Carreno court 

never suggested that the declaratory nature of the D.C. District Court’s judgment relieved the 

government from its obligation to obey the law as declared by the S.D. Florida District Court and 

to respect that court’s judgment. Nor does Carreno suggest that the declaratory nature of this 

Court’s judgment relieves Defendants of their obligation to comply with this Court’s ruling with 

respect to the Parties before it and to treat this Court’s declaratory judgment as the “functional 

equivalent” of an injunction which must be obeyed. See Order at 75. Defendants’ failure to 

acknowledge these critical distinguishing aspects of Mendoza-Martinez and Carreno, and their 

marked failure to adduce any relevant authority, bespeak the Government’s desperation to avoid 

the consequences of the Court’s decision. 

 Of course, the broader problem with Defendants' theory is that a decision by them to file 

an appeal would not change the fundamental nature of this Court's Order. If Defendants were 

not going to appeal, presumably even they would concede that they would not be free to ignore 

this Court's Order. A party’s unilateral decision to appeal – as opposed to a stay from a court – 

simply does not alter that reality. Indeed, under Defendants’ view that they need not comply 

with declaratory judgments pending appeal, courts would always have to issue injunctions during 

the pendency of appeals notwithstanding the well-established presumption that a declaratory 

judgment is sufficient relief in a suit against the federal government. 

 Significantly, Defendants already have raised, and this Court already has rejected, the 

argument that they should not be bound by the Court’s judgment until the appeals process has 

concluded. Defendants previously argued that a declaratory judgment would not apply until 

“after appellate review is exhausted.” Opposition to Plaintiffs’ Motion for Summary Judgment 

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at 43 [Doc. 137]. In response to this and other arguments, the Court held that “declaratory 

judgment is the functional equivalent of an injunction” because “there is a long-standing 

presumption that officials of the Executive Branch will adhere to the law as declared by the 

Court.” Order at 75. The Court would not have made such a ruling had it agreed with 

Defendants’ position that a declaratory judgment would not have immediate binding force and 

effect. Nor, presumably, would the Court have refrained from entering a formal injunction had it 

doubted Defendants’ willingness to respect that judgment. 

 Likewise unavailing is Defendants’ suggestion that the Court could not have intended its 

judgment to have immediate effect because it allegedly failed to consider certain legal and 

equitable issues implicated by the scope of that judgment. Motion at 11-14. The Court 

obviously did not think that its own judgment overlooked any necessary issues since, as even 

Defendants must concede, that judgment will be binding and operative once it is affirmed on 

appeal, without any further action by the Court. Motion at 4-5. Regardless, identification of 

supposed errors in the scope of the Court’s judgment sheds no light whatsoever on the timing of 

the judgment’s effectiveness. Similarly, as discussed below, those alleged errors do not warrant 

staying the Court’s judgment. 

II. DEFENDANTS ARE NOT ENTITLED TO A STAY UNDER THE GUISE OF 

“CLARIFICATION”

 The only fair characterization of Defendants’ Motion, seeking “clarification” that the 

Court’s final and binding declaratory judgment has no effect pending appellate review, is that it 

is a “de facto” request that the Court stay its judgment pending appeal. This is evident from 

Defendants’ references to the stay-related factors of the judgment’s allegedly erroneous scope, 

Motion at 11-14, and from their references to “significant disruption[s]” and “wide-ranging and 

indeterminate consequences” of the judgment, Motion at 4, 7-11. 

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Defendants appear to be seeking two bites at the stay apple, by their delayed clarification 

motion and a separate stay motion to follow, see Motion at 15. The entire stay issue should be 

resolved here and now, because “time is of the essence in this matter,” 2/18 Order at 1, and 

because it is obvious that Defendants cannot meet their heavy burden to justify such 

extraordinary relief. 

 In Nken v. Holder, 129 S. Ct. 1749 (2009), the Supreme Court recently reiterated the 

standards governing a stay pending appeal. As a threshold matter, the Court emphasized that: 

“A stay is not a matter of right, even if irreparable injury might otherwise 

result.” . . . It is instead “an exercise of judicial discretion,” and “[t]he 

propriety of its issue is dependent upon the circumstances of the particular 

case.” . . . The party requesting a stay bears the burden of showing that 

the circumstances justify an exercise of that discretion. 

Id. at 1760-61 (2009) (citations omitted). The Court then observed that, in determining whether 

the movant has met its burden, the “legal principles have been distilled into consideration of four 

factors”: 

“(1) whether the stay applicant has made a strong showing that he is likely 

to succeed on the merits; (2) whether the applicant will be irreparably 

injured absent a stay; (3) whether issuance of the stay will substantially 

injure the other parties interested in the proceeding; and (4) where the 

public interest lies.” 

Id. at 1761 (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). See also Philidor v. U. S. 

Att’y Gen., 384 Fed. Appx. 876, 878 (11th Cir. 2010).3

 Of these four factors, the first two “are the most critical.” Nken, 129 S. Ct. at 1761. 

Indeed, in his concurring opinion in Nken (joined in by Justice Scalia), Justice Kennedy stressed 

that both factors must be satisfied, stating: 

 

3

 While Nken dealt with the propriety of a circuit court’s stay, which is governed by Fed. R. 

App. P. 8(a), the same four-factor test fully applies to motions for stays directed to district courts 

under Fed. R. Civ. P. 62(c). See Hilton, 481 U.S. 770 at 776 (“Under both rules, . . . the factors 

regulating the issuance of a stay are generally the same. . . . “). 

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The Court has held that “[a] stay is not a matter of right, even if 

irreparable injury might otherwise result.” . . . When considering success 

on the merits and irreparable harm, courts cannot dispense with the 

required showing of one simply because there is a strong likelihood of the 

other. This is evident in the decisions of Justices of the Court applying the 

traditional factors. . . . As those decisions make clear, “‘the applicant must 

meet a heavy burden of showing not only that the judgment of the lower 

court was erroneous on the merits, but also that the applicant will suffer 

irreparable injury if the judgment is not stayed pending his appeal.’” 

Id. at 1763-64 (Kennedy, J., concurring) (citations omitted). Only if the movant has satisfied 

these first two factors do the additional questions of “harm to the opposing party and weighing 

the public interest” come into play. Id. at 1762. 

 Defendants here have failed to satisfy any of the pertinent factors for a stay, and this is 

particularly true with regard to likelihood of success and irreparable injury. First, Defendants 

have not made a strong showing that they are likely to prevail on appeal. The Court’s decision 

that the ACA unconstitutionally exceeds Congress’s enumerated powers is firmly grounded in 

the Supreme Court’s established precedent: 

It would be a radical departure from existing case law to hold that 

Congress can regulate inactivity under the Commerce Clause. If it has the 

power to compel an otherwise passive individual into a commercial 

transaction with a third party merely by asserting – as was done in the Act 

– that compelling the actual transaction is itself “commercial and 

economic in nature, and substantially affects interstate commerce,” it is 

not hyperbolizing to suggest that Congress could do almost anything it 

wanted. 

Order at 42. Similarly, the Individual Mandate, as Defendants have themselves many times 

conceded, is the centerpiece of the ACA and Congress clearly would not have enacted the 

statute’s other provisions without the mandate. Id. at 68, 74. Therefore, the Court properly held 

the mandate to be non-severable and struck down the entire statute. In their motion, Defendants 

never demonstrate any basis to support a claim that they are likely to prevail on the merits of 

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these issues on appeal – much less the legally required “strong showing” of likely success. This 

failure alone is fatal to their request for issuance of a stay. 

Second, any claim of irreparable injury is similarly without merit. Indeed, the very fact 

that Defendants refrained from immediately filing an appeal and seeking a stay, and instead 

waited two and one-half weeks and then merely moved to clarify the final judgment, seriously 

undermines any claim of irreparable injury. See Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 

1317-1318 (1983) (per Blackmun, J., in chambers) (denying stay) (EPA Administrator’s failure 

to act with dispatch “blunt[s] his claim of urgency and counsels against the grant of a stay”); 

Beame v. Friends of the Earth, 434 U.S. 1310, 1313 (1977) (per Marshall, J., in chambers) 

(denying stay) (“Applicants have not met their burden of showing a balance of hardships in their 

favor. Were the injury to the City from implementation of the Plan as severe as applicants now 

claim, one would think that they would have filed their petition for certiorari with dispatch. . . . 

The applicants’ delay in filing their petition and seeking a stay vitiates much of the force of their 

allegations of irreparable harm.”). Thus, even had Defendants expressly couched this motion as 

seeking a stay, their dilatoriness would militate against its entry. This is especially true in light 

of the discretionary and equitable nature of a stay as underscored in Nken. 

Moreover, Defendants fail to show that they are “irreparably injured” by being prevented 

from continuing to roll out the hundreds of provisions that Congress intentionally bound together 

in the unconstitutional ACA. The preexisting status quo should be in effect – just as it will be 

once the appellate process is concluded and the Court’s judgment striking down the ACA has 

been affirmed. That the federal government must act to reinstate that previous status quo, rather 

than impose unconstitutional requirements on the Plaintiffs that ultimately would have to be 

undone anyway, does not amount to irreparable injury. If anything, any problems arising from 

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the ACA’s implementation – or from its cessation – must be laid at Congress’s doorstep. In the 

interim, Congress retains the authority to act, as needed, to provide any constitutionally-proper 

and separately-enacted relief that Defendants, as enforcing agencies, might request. Defendants’ 

failure to satisfy the irreparable harm requirement, like their failure to show strong likelihood of 

success, is fatal to their stay request. 

Third, Defendants cannot get around the obvious costs and burdens imposed on Plaintiffs 

by the continuing implementation of the unconstitutional ACA’s provisions. Plaintiffs have 

demonstrated in their summary judgment filings – by reference to federal agency publications 

and sworn declarations from State personnel, the NFIB, and the Individual Plaintiffs – that the 

ACA is causing them substantial harm now. For example, the States must hire and assign 

personnel and devote substantial funds and resources now to prepare for compliance with the 

ACA; the Act’s “maintenance of efforts” requirements already are restricting States’ ability to 

control their costs; and the ACA now coerces States to offer expensive new benefits to officers 

and employees who previously were not covered. See ACA §§ 1001, 1201, 2001(b), 2101(b); 

see also Plaintiffs’ Statement of Material Facts [Doc. 80-2], ¶¶ 9-11, 17, 24-26, and referenced 

attachments in Plaintiffs’ Appendix. 

Fourth, the public interest must, first and foremost, be advanced by the protection and 

enforcement of the Constitution of the United States. Accordingly, the public interest is best 

served by the prevention of acts of Congress deemed unconstitutional from imposing added 

burdens and costs on the States or the American people. In the absence of a showing that 

Defendants are strongly likely to prevail on appeal, the public interest factor must be resolved in 

Plaintiffs’ favor, militating against issuance of a stay. 

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III. DEFENDANTS CANNOT ALTER THE SCOPE OF THE COURT’S FINAL 

JUDGMENT THROUGH A “MOTION TO CLARIFY”

 Likewise, Defendants’ purported motion for “clarification” is infused with a scattershot 

discussion of alleged defects in the scope of the Court’s judgment, suggesting their real aim is a 

reconsideration of the Court’s ruling. Unsurprisingly, however, Defendants have not openly 

sought relief under Federal Rule of Civil Procedure 59(e) (Motion to Alter or Amend a 

Judgment) since they plainly are not entitled to any such relief. 

“The only grounds for granting [a Rule 59] motion are newly-discovered evidence or 

manifest errors of law or fact. A Rule 59(e) motion cannot be used to relitigate old matters, raise 

argument or present evidence that could have been raised prior to the entry of judgment.” Arthur 

v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (quoting In re Kellogg, 197 F.3d 1116, 1119 (11th 

Cir. 1999), and Michael Linet, Inc. v. Village of Wellington, 408 F.3d 757, 763 (11th Cir. 2005)) 

(alterations omitted). Yet, Defendants’ challenge to the scope of the Court’s judgment does 

precisely what is forbidden under Rule 59; they attempt to relitigate numerous issues in this case, 

raising arguments that they never presented and thus have waived. 

 For example, Defendants belatedly and incorrectly suggest that “the existence of an 

associational plaintiff” means that the declaratory judgment is too vague. Motion at 12. On the 

contrary, the law is settled that where an “association seeks a declaration, injunction, or some 

other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will 

inure to the benefit of those members of the association actually injured.” Warth v. Seldin, 422 

U.S. 490, 515 (1975); see also Wein v. Am. Huts, Inc., 313 F.Supp.2d 1356, 1360 (S.D. Fla. 

2004). This is the very reason that associational standing exists: so that an association may 

“redress its members’ injuries.” United Food and Commercial Workers Union Local 751 v. 

Brown Group, Inc., 517 U.S. 544, 552 (1996). And while the government may not “know who 

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were NFIB members at the time of the First Amended Complaint,” Motion at 12, that typically is 

the case in associational standing actions, because those members have anonymity rights. See, 

e.g., NAACP v. Alabama, 357 U.S. 449 (1958). NFIB members are perfectly capable of 

asserting their rights under the Court’s judgment, and will have the opportunity to do so if the 

government attempts to enforce the Act against them.4

 Similarly, Defendants belatedly suggest that the Anti-Injunction Act and the Declaratory 

Judgment Act should have barred the Court’s decision to find the Act unconstitutional in whole. 

Motion at 7 n.5. This newfound assertion is without merit and has been waived. Nor can 

Defendants escape their waiver by suggesting that the statutory limitations in the Anti-Injunction 

Act and Declaratory Judgment Act are “jurisdictional.” As for the latter, it has long been 

established that “[t]he Declaratory Judgment Act . . . is remedial, not jurisdictional.” Wan Shih 

 

4

 Likewise, Defendants continue to dispute Plaintiff States’ standing. Defendants’ citation to 

Allen v. Wright, 468 U.S. 737, 752 (1984), is inapposite. As the Court correctly has ruled, it 

need not consider the standing of each Plaintiff so long as at least one has standing. Order at 18. 

Defendants’ reference to standing questions is puzzling, because Defendants never have 

contested Plaintiff States’ showing that the Individual Mandate causes them direct injury by 

driving millions more persons onto Medicaid rolls; as the Court has determined, the Medicaid 

provisions of the ACA are unseverable from the Individual Mandate. Thus, every Plaintiff State 

has direct standing to challenge the mandate, and has direct entitlement to protection from the 

ACA’s provisions pendente lite. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 682-83 (1987) 

(plaintiffs’ standing to challenged one provision of statute on basis of a different, 

unconstitutional and allegedly non-severable provision not questioned). Cf. 13B Charles Alan 

Wright et al., Federal Practice and Procedure § 3532.1 & n.53 (3d ed. 2008) (“inseverability 

can make ripe issues that otherwise would be better deferred” and “provisions that are not 

severable often can be attacked if a ripe claim is advanced as to any of them”) (citing Blanchette 

v. Ct. Gen. Ins. Corp., 419 U.S. 102, 137 n.20 (1974)). Moreover, Plaintiff States provided 

numerous other bases for their standing. In addition, the Court’s ruling highlights that Congress 

asserted what amounts to a general police power in enacting the Individual Mandate and tying it 

to the remaining provisions of the Act; plainly, all States have standing to bring suit over and 

receive judicial protection from so blatant an intrusion on their sovereignty, for only they may 

constitutionally assert a general police power. New York v. United States, 505 U.S. 144, 181-82 

(1992), establishes that one of the States’ most important functions is to protect their citizens’ 

liberty against excessive assertions of power by the federal government that would usurp the 

Constitution’s division of authority between it and the States. To hold that injunctive relief here 

applies only to a few of the Plaintiff States would be inconsistent with that overarching 

fundamental principle. 

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Hsieh v. Kiley, 569 F.2d 1179, 1181-82 (2d Cir. 1978), cert. denied, 439 U.S. 828 (1978); see 

also Wendy’s Int’l, Inc. v. City of Birmingham, 868 F.2d 433 (11th Cir. 1989). While courts in 

the past have described the Anti-Injunction Act’s limitations as “jurisdictional” even though the 

statute itself does not speak in those terms (see, e.g., Hosp. Res. Pers., Inc. v. United States, 68 

F.3d 421, 424 n.3, 428 (11th Cir. 1995)), the Supreme Court recently emphasized that courts 

“have been less than meticulous” and that “when Congress does not rank a statutory limitation 

... as jurisdictional, courts should treat the restriction as nonjurisdictional in character.” 

Arbaugh v. Y&H Corp., 546 U.S. 500, 511, 516 (2006). Indeed, the Anti-Injunction Act’s 

limitations cannot truly be jurisdictional in nature because the courts “ha[ve] no authority to 

create equitable exceptions to jurisdictional requirements,” Bowles v. Russell, 551 U.S. 205, 214 

(2007). Consistent with the foregoing, in a parallel challenge to the ACA, the United States 

District Court for the District of Columbia held that the Government had “waived” its 

“arguments concerning the Anti-Injunction Act,” which was permissible since they did not 

implicate “any defect in th[e] [c]ourt's jurisdiction.” Mead v. Holder, No. 10-950, Mem. Op. at 2 

n.1 (D.D.C. Feb. 22, 2011). 

Conclusion

As a matter of law, a declaratory judgment has “the force and effect of a final judgment or 

decree.” 28 U.S.C. § 2201(a). Given the clarity of the Court’s Order and the straightforward law 

governing the effect of declaratory judgments, Defendants’ Motion is simply an unfounded 

attempt to justify a stay in this Court and, later, to build an improper post-judgment “record” for 

their inevitable claim in the Court of Appeals that their delay in seeking appeal and a stay is 

excused by their purported confusion about this Court’s decision. 

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For all of the foregoing reasons, and especially because “time is of the essence in this 

matter,” the Court should deny Defendants’ Motion for Clarification as well as their thinlydisguised request for a stay. If the Court is inclined to stay its judgment only so long as to permit 

Defendants to seek a stay from the Court of Appeals, Plaintiffs respectfully request that such a 

stay not exceed five (5) days. 

Respectfully submitted, 

 PAMELA JO BONDI 

 ATTORNEY GENERAL OF FLORIDA 

 /s/ Blaine H. Winship

 Blaine H. Winship (Fla. Bar No. 0356913) 

 Special Counsel 

 Joseph W. Jacquot (Fla. Bar No. 189715) 

 Special Counsel 

 Scott D. Makar (Fla. Bar No. 709697) 

 Solicitor General 

 Louis F. Hubener (Fla. Bar No. 0140084) 

 Timothy D. Osterhaus (Fla. Bar No. 

0133728) 

 Deputy Solicitors General 

 Office of the Attorney General of Florida 

 The Capitol, Suite PL-01 

 Tallahassee, Florida 32399-1050 

 Telephone: (850) 414-3300 

 Facsimile: (850) 488-4872 

 Email: blaine.winship@myfloridalegal.com 

 Attorneys for Plaintiff States

Karen R. Harned David B. Rivkin (D.C. Bar No. 394446) 

Executive Director Lee A. Casey (D.C. Bar No. 447443) 

National Federation of Independent Baker & Hostetler LLP 

Business 1050 Connecticut Avenue, N.W., Ste. 1100 

Small Business Legal Center Washington, DC 20036 

1201 F Street, N.W., Suite 200 Telephone: (202) 861-1731 

Washington, DC 20004 Facsimile: (202) 861-1783 

Telephone: (202) 314-2061 Attorneys for Plaintiff States, National

Facsimile: (202) 554-5572 Federation of Independent Business, Mary

Of counsel for Plaintiff National Brown, and Kaj Ahlburg

Federation of Independent Business

 Katherine J. Spohn 

 Special Counsel to the Attorney General 

 Office of the Attorney General of Nebraska 

 2115 State Capitol Building 

 Lincoln, Nebraska 68508 

Case 3:10-cv-00091-RV -EMT Document 158 Filed 02/23/11 Page 14 of 15
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 Telephone: (402) 471-2834 

 Facsimile: (402) 471-1929 

 Email: katie.spohn@nebraska.gov 

 Attorneys for Plaintiff the State of Nebraska

 Bill Cobb 

 Deputy Attorney General 

 for Civil Litigation 

 Office of the Attorney General of Texas 

 P.O. Box 12548, Capitol Station 

 Austin, Texas 78711-2548 

 Telephone: (512) 475-0131 

 Facsimile: (512) 936-0545 

 Email: bill.cobb@oag.state.tx.us 

 Attorneys for Plaintiff the State of Texas 

 Clayton P. Kawski 

 Assistant Attorney General 

 Wisconsin Department of Justice 

 17 W. Main St. 

 Madison, WI 53707 

 Telephone: (608) 266-7477 

 Facsimile: (608) 267-2223 

 Email: kawskicp@doj.state.wi.us 

 Attorneys for Plaintiff the State of Wisconsin 

 

CERTIFICATE OF SERVICE

I hereby certify that, on this 23rd day of February, 2011, a copy of the foregoing was 

served on counsel of record for all Defendants through the Court’s Notice of Electronic Filing 

system. 

 /s/ Blaine H. Winship

 Blaine H. Winship 

 Special Counsel 

 Office of the Attorney General of Florida 

Case 3:10-cv-00091-RV -EMT Document 158 Filed 02/23/11 Page 15 of 15