STATE OF FLORIDA et al v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES et al

Filing 124

AMICUS CURIAE BRIEF by American Nurses Association in support of defendants' motion for summary judgment. (MILLHISER, IAN)

STATE OF FLORIDA et al v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES et al Doc. 124 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION STATE OF FLORIDA, by and through BILL McCOLLUM, et al., ) ) ) Plaintiffs, ) ) v. ) ) UNITED STATES DEPARTMENT ) OF HEALTH AND HUMAN ) SERVICES, et al., ) Defendants. ) ________________________________ ) Case No. 3:10-cv-91-RV/EMT BRIEF OF AMICUS CURIAE AMERICAN NURSES ASSOCIATION IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT _____________________________________________________________ Dockets.Justia.com TABLE OF CONTENTS TABLE OF CONTENTS..................................................................................................... i TABLE OF AUTHORITIES .............................................................................................. ii Interests of the Amicus Curiae............................................................................................ 1 ARGUMENT...................................................................................................................... 2 A. The Necessary and Proper Clause Empowers Congress to Enact Provisions That Are Reasonably Adapted To Making A Broader Regulatory Scheme Effective.... 3 The Minimum Coverage Provision is "Reasonably Adapted" To Congress' Legitimate Ends Of Regulating Interstate Commerce in the Health Market and Ensuring that Federal Health Care Spending is Not Wasted .................................. 4 1. Removing The Minimum Coverage Provision Would Drive Up The Costs of Care For The Uninsured and Shift These Costs To Persons With Insurance .... 5 Removing the Minimum Coverage Provision Drastically Reduces the Value of the ACA's Subsidies And Imperils the National Insurance Market.................... 9 B. 2. CONCLUSION................................................................................................................. 12 CERTIFICATE OF SERVICE ......................................................................................... 14 i TABLE OF AUTHORITIES Cases Gonzales v. Raich, 545 U.S. 1 (2005)..................................................................... 2, 3, 4, 9 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)) .................................................. 3 Sabri v. United States, 541 U.S. 600 (2004)............................................................. 4, 9, 12 United States v. Belfast, 611 F.3d 783 (11th Cir. 2010) ..................................................... 3 United States v. Comstock, 130 S. Ct. 1949, (2010)................................................. 3, 9, 12 United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942)........................................... 4 Statutes Emergency Medical Treatment and Labor Act, 42 U.S.C. 1395dd............................. 5, 8 Patient Protection and Affordable Care Act, Pub L. No. 111-148, 124 Stat. 119 (2010) ................................................................................................................................ passim Other Authorities Adele M. Kirk, Riding the Bull: Experience with Individual Market Reform in Washington, Kentucky and Massachusetts, 25 J. of Heath Politics, Pol'y and L. 133 (2000)............................................................................................................................ 11 Alan C. Monheit et al., Community Rating and Sustainable Individual Health Insurance Markets in New Jersey, 23 Health Affairs 167 (2004) ................................................. 11 Ben Furnas & Peter Harbage, Ctr. for Am. Progress, The Cost-shift from the Uninsured 2 (March 24, 2009) ............................................................................................................ 9 Congressional Budget Office, Effects of Eliminating the Individual Mandate to Obtain Health Insurance 2 (June 16, 2010)........................................................................ 11, 12 Institute of Medicine, America's Uninsured Crisis: Consequences for Health and Health Care (February 2009).................................................................................................. 6, 8 Institute of Medicine, Care Without Coverage: Too Little, Too Late (2002)................. 7, 8 Institute of Medicine, Health Insurance is a Family Matter (2002).................................... 5 J. Michael McWilliams, Health Consequences of Uninsurance Among Adults in the United States: Recent Evidence and Implications, 87 Milbank Q. 443 (2009) .......... 7, 9 Jay J. Shen and Elmer L. Washington, Disparities in Outcomes Among Patients With Stroke Associated With Insurance Status, 38 Stroke 1010 (2007).................................. 8 Jonathan Gruber, Ctr. for Am. Progress, Health Care Reform is a `Three-Legged Stool 1 (Aug. 5, 2010) ............................................................................................................... 11 Maine Bureau of Insurance, White Paper: Maine's Individual Health Insurance Market (January 22, 2001) ........................................................................................................ 11 ii Peter G. Szilagyi, et al., Improved Asthma Care After Enrollment in the State Children's Health Insurance Program in New York, 117 Pediatrics 486 (2006) ............................. 8 Thomas R. McLean, International Law, Telemedicine & Health Insurance: China as a Case Study, 32 Am. J. L. and Med. 7, 21 (2006).......................................................... 10 Vickie Yates Brown, et al., Health Care Reform in Kentucky - Setting the Stage for the Twenty-First Century?, 27 N. Ky. L. Rev. 319 (2000)................................................. 11 iii Interests of the Amicus Curiae Amicus Curiae is the only full-service professional organization representing the interests of the nation's 3.1 million registered nurses. Founded over a century ago and with members in every state across the nation, the American Nurses Association ("ANA") is comprised of state nurses associations and individual nurses. In addition to its own membership of over 170,000 registered nurses, ANA's 25 organizational affiliates represent over 300,000 RNs. ANA believes that the Affordable Care Act is a significant achievement for the patients that ANA's members serve because it ensures greater protection against losing or being denied health insurance coverage and it promotes better access to primary care and to wellness and prevention programs. Nursing's strengths as a profession -- in providing holistic care that contemplates the individual, his or her family and community -- is exactly the emphasis sought in a reformed health care system. Moreover, the ACA's goal of optimizing health insurance coverage for the greatest number of people permits nurses and other healthcare professionals to place their attention on the most important thing-- the patient's well-being and healing--rather than on economic considerations. ANA has a significant interest in assisting the Court in understanding that the minimum coverage provision challenged by plaintiffs is essential to the Affordable Care Act's provisions ensuring that health insurance is both universally available and affordable. Because registered nurses work on the front lines of the health care system, they know from experience that patients who put off needed care due to lack of insurance often end up sicker and require much costlier emergency room care. Moreover, registered nurses work throughout the continuum of care and in all settings within the health care industry--from direct care to hospital administration. As a result, ANA has a 1 uniquely broad perspective on the impact of the Affordable Care Act and the capacity to offer information that can guide the court's understanding of the consequences of removing the minimum coverage provision to the health provider and insurance markets as a whole. ARGUMENT Congress enacted the Patient Protection and Affordable Care Act, Pub L. No. 111-148, 124 Stat. 119 (2010) ("ACA") to achieve near-universal health insurance coverage, significantly reduce the economic costs of poor outcomes among presently uninsured Americans, prevent cost shifting from uninsured Americans receiving uncompensated care to Americans with insurance, and improve the financial security of all families against medical costs. 10106(a). Yet, as Congress determined in enacting the ACA, the reforms enacted to achieve these goals cannot function effectively without a provision requiring all Americans who can afford insurance to either obtain it or pay an additional portion of their income with their annual tax return.1 1501(a)(2)(G). Because Congress possesses the constitutional authority to prevent a comprehensive economic regulatory scheme from being so undermined, the minimum coverage provision should be upheld. See Gonzales v. Raich, 545 U.S. 1, 22 (2005) (holding that courts should "refuse to excise individual components" of a larger regulatory scheme even when those components could not be enacted on their own under the Commerce Clause). 1 The ACA labels this provision the "Requirement to Maintain Minimum Essential Coverage." 1501. The provision is referred to as the "minimum coverage provision" throughout this brief. 2 A. The Necessary and Proper Clause Empowers Congress to Enact Provisions That Are Reasonably Adapted To Making A Broader Regulatory Scheme Effective "[T]he Necessary and Proper Clause makes clear that the Constitution's grants of specific federal legislative authority are accompanied by broad power to enact laws that are `convenient, or useful' or `conducive'" to an enumerated power's "beneficial exercise." United States v. Comstock, 130 S. Ct. 1949, 1956 (2010) (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413, 418 (1819)). Moreover, "Chief Justice Marshall emphasized that the word `necessary' does not mean `absolutely necessary.'" Id. Rather, "[I]n determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, [courts] look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power." United States v. Belfast, 611 F.3d 783, 805 (11th Cir. 2010) ((quoting Comstock, 130 S.Ct. at 1956) (emphasis in original)). Plaintiffs attempt to draw a distinction between laws regulating "activity" and laws supposedly regulating "inactivity" under the Necessary and Proper Clause, claiming that the ACA's minimum coverage provision is flawed because it regulates a failure to act in the health care market. Significantly, plaintiffs are unable to cite a single case interpreting the Necessary and Proper Clause which supports this novel, extraconstitutional distinction--and no such case exists.2 As Justice Scalia explains, "where Congress has the authority to enact a regulation of interstate commerce, 'it possesses every power needed to make that regulation effective.'" Raich, 545 U.S. at 36 (Scalia, J., 2 Moreover, plaintiffs' claim that uninsured patients do not participate in the health care market reflects a flawed understanding of that market. See generally Brief of Amici Curiae Economic Scholars. 3 concurring in the judgment) (quoting United States v. Wrightwood Dairy Co., 315 U.S. 110, 118 (1942)) (emphasis added). Amicus acknowledges that, while Congress' Necessary and Proper power is very broad, it is not without limits. When invoked as part of a comprehensive economic regulatory scheme, the Necessary and Proper power "can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make interstate regulation effective." Id. at 38 (Scalia, J, concurring in the judgment). These conditions are met in this case, as the minimum coverage provision is necessary to make the related insurance reforms effective. When Congress enacts a unique regulatory scheme or regulates a unique market under its Commerce Power, the very uniqueness of such a law may bring new regulatory tools within the Necessary and Proper Clause's umbrella. The Necessary and Proper Clause also empowers Congress to ensure that federal monies are not spent wastefully. In Sabri v. United States, 541 U.S. 600 (2004), the Supreme Court upheld a wide-reaching statute criminalizing bribery of any state official whose agency or government receives federal funds, even though the statute swept broadly to include officials who have no contact with the federal funds. As the Court explained, "Congress has authority under the Spending Clause to appropriate federal monies to promote the general welfare, and it has corresponding authority under the Necessary and Proper Clause to see to it that taxpayer dollars" are not "frittered away" by bribery-motivated projects that are not cost-effective. Id. at 605 (citations omitted). B. The Minimum Coverage Provision is "Reasonably Adapted" To Congress' Legitimate Ends Of Regulating Interstate Commerce in the Health Market and Ensuring that Federal Health Care Spending is Not Wasted 4 To accomplish its goals of improving health outcomes, extending insurance coverage and promoting financial security against health costs, the ACA creates an interconnected network of subsidies and regulations. Most notably, the Act prohibits insurers from denying coverage to consumers with preexisting conditions or charging them higher premiums, ACA 2704, and it provides tax subsidies to individuals with incomes between 133% and 400% of the poverty line. 140102, 2001. Without the minimum coverage provision, these two provisions will be severely undermined. Rather than ensuring equal access to insurance for Americans with disabilities or preexisting conditions, the ACA's preexisting conditions provision would threaten the nationwide individual insurance market if it does not take effect in conjunction with a minimum coverage provision. Likewise, the generous subsidies offered by the ACA will diminish drastically in value absent a minimum coverage provision. 1. Removing The Minimum Coverage Provision Would Drive Up The Costs of Care For The Uninsured and Shift These Costs To Persons With Insurance Many health conditions and illnesses, if caught early and treated with appropriate follow-up care, can be relatively inexpensive to resolve. Many conditions can be avoided altogether through preventive care. Yet if these conditions or illnesses do not receive prompt and appropriate treatment, they can often require hospitalization or otherwise deteriorate into a serious condition requiring expensive care. See Institute of Medicine, Health Insurance is a Family Matter 106 (2002). Because federal law requires virtually all emergency rooms to stabilize patients regardless of their ability to pay, see Emergency Medical Treatment and Labor Act, 42 U.S.C. 1395dd., the cost of this expensive care winds up being transferred to patients with insurance or to government programs such as Medicare or Medicaid. Accordingly the minimum coverage provision is reasonably adapted to 5 ensuring that government health care spending is not "frittered away" on preventable health care costs. Sabri, 541 U.S. at 605. The likelihood that a patient will receive adequate preventive care or early treatment is directly related to whether the patient is insured. One study determined that children enrolled in a public health insurance plan were 15 percentage points more likely to receive preventive care than those who were not. Institute of Medicine, America's Uninsured Crisis: Consequences for Health and Health Care 61 (February 2009) ("Uninsured Crisis"). Likewise, all but one study to consider the issue found that uninsured children are "less likely to be up-to-date on their immunizations than insured children, controlling for observed characteristics of the children." Id. Use of dental services also increases between 16 and 40 percentage points among children who are insured. Id. at 62. The data for adult patients is ever starker: [C]hronically ill adults who lacked health insurance had five to nine fewer health care visits per year than chronically ill adults who have health insurance. Uninsured adults with chronic illnesses were much more likely than their insured peers to go without any medical visits during the year-- even when they were diagnosed with serious conditions such as asthma (23.4 of uninsured adults with no visits vs. 6.2 percent of insured adults), COPD (13.2 vs. 4.0 percent), depression (19.3 vs. 5.2 percent), diabetes (11.0 vs. 5.2 percent), heart disease (8.7 vs. 2.9 percent), or hypertension (12.7 vs. 5.3 percent). Similarly, uninsured adults with asthma, cancer, COPD, diabetes, heart disease, or hypertension are at least twice as likely as their insured peers to say that they were unable to receive or had to delay receiving a needed prescription[.] Id. at 65. Likewise, routine preventive care such as "mammography, Pap testing, cholesterol testing, and influenza vaccination" is far less common among adults who experience frequent periods of uninsurance. Id. While women who are consistently insured have a 76.7 percent chance of receiving mammographies, that chance declines to 6 34.7 percent for women who experience frequent periods of uninsurance. Id. Uninsured adults are also much less likely to have a continuing relationship with a single provider. Among uninsured adults, "19 percent with heart disease, 14 percent with hypertension, and 26 percent with arthritis do not have a regular source of care, compared with 8, 4, and 7 percent, respectively, of their insured counterparts." Institute of Medicine, Care Without Coverage: Too Little, Too Late 29 (2002) ("Care Without Coverage"). This disparity is troubling because patients with chronic conditions often must "modify[] their behavior, monitor[] their condition and participat[e] in treatment regimens" in order to keep their condition under control. Id. at 57. Such tasks require patients to develop a complex understanding of their condition and to master tasks that do not come naturally to persons without education or training in the health sciences. Thus, a patient's continuing relationship with a single provider who can answer their questions and monitor their care is "a key to high-quality health care" for persons with chronic conditions. Id. There is robust data demonstrating that uninsured patients' diminished access to care causes their medical conditions to deteriorate. One study found that "near-elderly adults who lost their insurance were subsequently 82 percent more likely than those who kept their private insurance to report a decline in overall health." J. Michael McWilliams, Health Consequences of Uninsurance Among Adults in the United States: Recent Evidence and Implications, 87 Milbank Q. 443, 469 (2009) ("Uninsurance Among Adults"). The rate of asthma-related hospital stays for children with asthma in New York dropped from 11.1 percent to 3.4 percent when those children were enrolled in a state insurance program. Peter G. Szilagyi, et al., Improved Asthma Care After Enrollment in 7 the State Children's Health Insurance Program in New York, 117 Pediatrics 486, 491 (2006). Uninsured children diagnosed with diabetes are "more likely to present with severe and life-threatening diabetic ketoacidosis" than insured children with the same condition. Uninsured Crisis at 71. Among stroke patients, "[t]he mortality risk of uninsured patients was 24% to 56% higher than that of their privately insured peers for acute hemorrhagic and acute ischemic stroke, respectively." Jay J. Shen and Elmer L. Washington, Disparities in Outcomes Among Patients With Stroke Associated With Insurance Status, 38 Stroke 1010, 1013 (2007). Likewise, "5-year survival rates for uninsured adults were significantly lower than for privately insured adults diagnosed with breast or colorectal cancer--two prevalent cancers for which there are not only effective screening tests, but also treatments demonstrated to improve survival." Uninsured Crisis at 78. Indeed, a recent Institute of Medicine report documented dozens of empirical studies linking uninsurance with poor health outcomes and deteriorated medical conditions. See generally Uninsured Crisis. When uninsured patients fail to receive preventive care, continuing care or early treatment, their healthcare needs and the cost of meeting those needs still require them to participate in the health care market. As a condition of their hospital's participation in Medicare, hospital emergency departments must stabilize any patent who seeks treatment for an emergency medical condition regardless of the patient's ability to pay. See Emergency Medical Treatment and Labor Act, 42 U.S.C. 1395dd. Thus, an uninsured patient whose condition deteriorates because they are unable to afford less expensive preventive or early care will nonetheless receive expensive emergency treatment for that condition. See Care Without Coverage at 58 (indicating that many uninsured patients "identify an emergency department as their regular source of care"). The cost of this uncompensated care is then 8 distributed to other patients or to government health programs such as Medicare or Medicaid. According to one study, this cost shifting adds, on average, $410 to each individual insurance premium and $1,100 to each family premium. Ben Furnas & Peter Harbage, Ctr. for Am. Progress, The Cost-shift from the Uninsured 2 (March 24, 2009). Uninsured patients' likelihood to delay care and the subsequent deterioration of health also drive up Medicare costs. A twelve-year study of patients approaching the age of Medicare eligibility found that previously uninsured patients with cardiovascular disease (hypertension, heart disease, or stroke) or diabetes often did not receive widelyavailable and effective treatments to prevent costly complications if their conditions developed before they qualified for Medicare. As a result, "previously uninsured Medicare beneficiaries with these conditions reported 13 percent more doctor visits, 20 percent more hospitalizations, and 51 percent more total medical expenditures" than similarly situated patients who were insured prior to qualifying for Medicare. Uninsurance Among Adults at 468. Congress may, through the valid exercise of its spending power, require Medicare hospitals to accept uninsured patients into their emergency rooms as a condition of participation in the Medicare program. The ACA's minimum coverage provision is reasonably adapted to preventing this requirement from driving up the cost of Medicare and increasing the cost of insurance for individual and families receiving subsidies under the ACA. Accordingly, this provision should be upheld under Congress' Necessary and Proper power. See Comstock, 130 S. Ct. at 1957; Raich, 545 U.S. at 37 (Scalia, J., concurring in the judgment)); Sabri, 541 U.S. at 60408. 2. Removing the Minimum Coverage Provision Drastically Reduces the Value of the ACA's Subsidies And Imperils the National Insurance Market 9 Adverse selection occurs when an individual "wait[s] to purchase health insurance until they need[] care," thus enabling them to receive benefits from an insurance plan that they have not previously contributed to. ACA 10106(a). The consequences of adverse selection is an insurance "death spiral" which can eventually collapse an insurance market. See Thomas R. McLean, International Law, Telemedicine & Health Insurance: China as a Case Study, 32 Am. J. L. and Med. 7, 21 (2006) ("[A]dverse selection removes good-risk patients from the market, resulting in the need for insurers to raise their premiums; which triggers another round of adverse selection.") Insurers typically defend against adverse selection by screening potential customers with disabilities or preexisting conditions, but the ACA specifically forbids this practice. 2704. Thus, the ACA requires most currently healthy Americans to participate in the insurance market to prevent them from strategically avoiding that market until they become ill or injured. 10106(a) ("[A minimum coverage provision] is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of preexisting conditions can be sold.") Because of this adverse selection problem, the Congressional Budget Office estimates that premiums will increase drastically absent a minimum coverage provision: CBO and JCT estimate that, relative to current law, the elimination of the mandate would reduce insurance coverage among healthier people to a greater degree than it would reduce coverage among less healthy people. As a result, in the absence of a mandate, those who enroll would be less healthy, on average, than those enrolled with a mandate. This adverse selection would increase premiums for new non-group policies (purchased either in the exchanges or directly from insurers in the non-group market) by an estimated 15 to 20 percent relative to current law. Without the mandate, Medicaid enrollees would also have higher expected health spending, on average, than those enrolled under current law. 10 Congressional Budget Office, Effects of Eliminating the Individual Mandate to Obtain Health Insurance 2 (June 16, 2010) ("Effects of Eliminating") (emphasis added); see also Jonathan Gruber, Ctr. for Am. Progress, Health Care Reform is a `Three-Legged Stool 1 (Aug. 5, 2010) (estimating that the average premium for a non-group health insurance plan would increase 27% by 2019 if the ACA goes into effect without a minimum coverage provision). If anything, this CBO estimate greatly underestimates the cost of excising the minimum coverage provision. States which required insurers to cover individuals with preexisting conditions but did not enact a minimum coverage provision experienced far more drastic consequences. Kentucky, Maine, New Hampshire and Washington each lost most or all of their individual market insurers after those states enacted a preexisting conditions provision without enacting a minimum coverage provision, and the cost of some New Jersey health plans more than tripled after that state enacted a similar law. See Vickie Yates Brown, et al., Health Care Reform in Kentucky - Setting the Stage for the Twenty-First Century?, 27 N. Ky. L. Rev. 319, 330 (2000); Adele M. Kirk, Riding the Bull: Experience with Individual Market Reform in Washington, Kentucky and Massachusetts, 25 J. of Health Politics, Pol'y and L. 133, 140, 152 (2000); Maine Bureau of Insurance, White Paper: Maine's Individual Health Insurance Market 5, 8, (January 22, 2001), Alan C. Monheit et al., Community Rating and Sustainable Individual Health Insurance Markets in New Jersey, 23 Health Affairs 167, 16970 (2004). As the experience of these states demonstrates, the minimum coverage provision is necessary to prevent the preexisting conditions provision from creating a fatal, adverse 11 selection spiral--and this is sufficient reason to uphold the minimum coverage provision under the Necessary and Proper Clause.3 See Comstock, 130 S.Ct. at 1956. Additionally, removing the minimum coverage provision would, in the words of Sabri, "fritter[] away" literally hundreds of billions of "taxpayer dollars." 541 U.S. at 605. The Congressional Budget Office determined that eliminating the minimum coverage provision would increase the federal deficit by $252 billion between 2014 and 2020, with approximately 60 percent of this additional debt stemming from increased health care costs. Effects of Eliminating at 1. Yet while the federal government would spend hundreds of billions more without a minimum coverage provision, the nation would receive far less, as excising the minimum coverage provision "would increase the number of uninsured by about 16 million people, resulting in an estimated 39 million uninsured in 2019." Id. at 2. Because the minimum coverage provision is both necessary to ensure that the preexisting conditions provision is effective and essential to prevent hundreds of billions of dollars from being "frittered away," it falls comfortably within Congress' Necessary and Proper power. CONCLUSION For the foregoing reasons, amicus respectfully submits that the Court should grant defendants' Motion for Summary Judgment. Amicus Curiae Congressman John Boehner suggests that the minimum coverage provision does not fall within the Necessary and Proper power because the ACA's preexisting conditions provision does not "need the Mandate to be legally effective." Brief of House Republican Leader John Boehner as Amicus Curiae at 12. This unique view of the Necessary and Proper power is impossible to square with Sabri because federal grants to states hardly require a federal anti-bribery law to be legally effective. See Sabri, 541 U.S. at 605 (holding that "Congress has . . . authority under the Necessary and Proper Clause to see to it that taxpayer dollars" are not "frittered away" by bribery-motivated projects that are cost-ineffective.) 3 12 Dated: November 19, 2010 Alice L. Bodley* Cynthia Haney* American Nurses Association 8515 Georgia Avenue, Suite 400 Silver Spring, MD 20910 (301) 628-5127 Alice.Bodley@ana.org Cynthia.Haney@ana.org Respectfully submitted, Ian Millhiser (VA Bar No. 73222) Counsel of Record Center for American Progress 1333 H St., NW, 10th floor Washington, DC 20005 (202) 481-8228 imillhiser@americanprogress.org *Not admitted in this Court Attorneys for Amicus Curiae 13 CERTIFICATE OF SERVICE I hereby certify that on November 19, 2010, the foregoing document was filed with the clerk of the court via the CM/ECF system, causing it to be served on all counsel of record. /s/ Ian Millhiser IAN MILLHISER VA Bar No. 73222 Center for American Progress 1333 H St., NW, 10th floor Washington, DC 20005 (202) 481-8228 (t) (202) 682-1867 (f) imillhiser@americanprogress.org 14