Kirby Vining v. Executive Bd. of the DC Health Benefit Exchange Auth.

Notice: This opinion is subject to formal revision before publication in the

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the

Court of any formal errors so that corrections may be made before the bound

volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 15-CV-242

KIRBY VINING, APPELLANT,

V.

EXECUTIVE BOARD OF THE DISTRICT OF COLUMBIA

HEALTH BENEFIT EXCHANGE AUTHORITY, ET AL., APPELLEES.

Appeal from the Superior Court

of the District of Columbia

(CAB-6496-14)

(Hon. Herbert B. Dixon, Jr., Trial Judge)

(Argued March 2, 2016 Decided December 7, 2017)

Michael Bekesha for appellant.

Jason Lederstein, Assistant Attorney General, with whom Karl A. Racine,

Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at

the time the brief was filed, and Loren AliKhan, Deputy Solicitor General, were on

the brief, for appellees.

Before GLICKMAN and EASTERLY, Associate Judges, and REID, Senior

Judge.

GLICKMAN, Associate Judge: Kirby Vining appeals the dismissal of his

taxpayer suit against the District of Columbia Health Benefit Exchange Authority

and its Executive Director and Executive Board (collectively, the “Exchange

2

Authority”). Mr. Vining seeks declaratory and injunctive relief to stop what he

claims is the Exchange Authority‟s illegal use of municipal funds to allow

members of Congress, congressional employees, and their dependents to purchase

health insurance on the small business exchange created by the District under the

Patient Protection and Affordable Care Act. The Superior Court granted the

District‟s motion to dismiss the complaint pursuant to Civil Rules 12 (b)(1) for

lack of standing and 12 (b)(6) for failure to state a claim.1

We affirm the dismissal because Mr. Vining‟s status as a municipal taxpayer

does not provide him with the standing necessary to maintain this action. We

therefore do not reach the merits of Mr. Vining‟s claim of illegality, which turns on

whether federal law preempts otherwise applicable District law.

I.

As enacted by Congress in 2010, the Patient Protection and Affordable Care

Act (the “ACA”)2 envisioned that the States and the District of Columbia3 would

1

See Super. Ct. Civ. R. 12 (b)(1), (b)(6).

2

Pub. L. No. 111-148, 124 Stat. 119 (2010), codified in large part at 42

U.S.C. § 18001 et seq., as amended by the Health Care and Education

Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (2010).

3

establish two marketplaces for the purchase of health insurance: an “American

Health Benefit Exchange” for qualifying individual consumers and a “Small

Business Health Option Program,” or “SHOP Exchange,” for small employers

seeking group coverage for their employees.4 The ACA defines a “small

employer” eligible to use a SHOP Exchange as one with no more than one hundred

employees, though it permits States to restrict access to employers with no more

than fifty employees.5

In 2012, the Council of the District of Columbia created the Exchange

Authority as an independent agency and directed it to establish the individual and

small business exchanges necessary to implement the ACA.6 The Exchange

Authority Act defines a “small employer” eligible to participate in a District SHOP

Exchange as one employing on average no more than fifty employees. 7 The

(…continued)

3

The ACA includes the District of Columbia in its definition of “State.”

See ACA § 1304 (d).

4

Id. § 1311 (b).

5

Id. §§ 1304 (b)(2), (b)(3).

6

See D.C. Code § 31-3171.01 et seq. (2012 Repl. & 2017 Cum. Supp.).

7

Id. § 31-3171.01 (16)(A).

4

Council established a “nonlapsing” fund (the “Exchange Fund”) exclusively for the

Exchange Authority to draw on in order to carry out its responsibilities.8

The ACA also provided that after January 1, 2014, the Federal Government

could make health insurance plans available to Members of Congress and

congressional staff only through a State exchange.9 In response to this provision,

OPM issued final regulations in October 2013 requiring the Members and staff of

Congress to enroll in a plan offered on the District of Columbia SHOP Exchange

in order to receive federal contributions to their insurance premiums. 10 The

Centers for Medicare and Medicaid Services in the Department of Health and

Human Services issued interpretive guidance stating that size requirements for

8

See D.C. Code § 3171.03. Monies deposited into the Exchange Fund, and

interest earned thereon, “shall not revert to the unrestricted fund balance of the

General Fund of the District of Columbia at the end of a fiscal year, or at any other

time, but shall be continually available for the uses and purposes [of the Exchange

Authority] without regard to fiscal year limitation, subject to authorization by

Congress.” Id. § 3171.03 (c).

9

ACA § 1312 (d)(3)(D). Before this requirement took effect, the Federal

Government provided health benefits to Members of Congress and congressional

staff the same way it provided them to other federal employees, i.e., through the

Federal Employee Health Benefits Act, 5 U.S.C. § 8901 et seq., as administered by

the Office of Personnel Management (“OPM”), id. § 8913.

10

Federal Employees Health Benefits Program: Members of Congress and

Congressional Staff, 78 Fed. Reg. 60653, 60654-56 (Oct. 2, 2013) (codified at 5

C.F.R. § 890 et seq. (2015)).

5

small employers to participate in SHOP Exchanges would not apply to Members of

Congress and congressional staff.11

Mr. Vining sued the Exchange Authority in October 2014. His complaint

alleged that since November 2013, the Exchange Authority had allowed at least

12,359 congressional employees and dependents to purchase health insurance on

the District of Columbia SHOP Exchange, in contravention of the provision in the

District‟s Exchange Authority Act restricting participation in the small business

exchange to employers with fifty or fewer employees.12 Mr. Vining further alleged

that this “illegal” operation of the District‟s SHOP Exchange caused irreparable

injury to his “interests as a taxpayer” because the Exchange Fund used to

administer the Exchange included taxpayer money appropriated annually by the

Council from the District‟s General Fund. The complaint requested the court to

grant equitable relief, including a declaration that congressional participation in the

District‟s SHOP Exchange was unlawful and an injunction barring the Exchange

11

Centers for Medicare and Medicaid Services, Affordable Insurance

Exchanges Guidance: Members of Congress and Staff Accessing Coverage

Through Health Insurance Exchanges (Marketplaces) (2013),

https://perma.cc/XGZ3-C8VT.

12

See supra note 7. The complaint alleged that the 12,359 congressional

employees and dependents represented approximately 86% of the total number of

persons enrolled in the SHOP Exchange.

6

Authority from allowing such participation “or, at a minimum, from expending

further taxpayer funds” thereon.

In moving to dismiss the complaint pursuant to Civil Rule 12 (b)(1) on

standing grounds, the Exchange Authority denied that municipal taxes had been

used to fund the District‟s SHOP Exchange. The Exchange Authority cited public

District Government Budget Plans for fiscal years 2013 through 2015 showing that

no general taxpayer revenues had been appropriated for its use and that it was

funded only by federal grant monies and assessments levied on health insurance

carriers.13 In response, Mr. Vining contended that, as a District of Columbia

taxpayer, he has standing to challenge the Exchange Authority‟s illegal

expenditure of municipal funds whatever the source of those funds and regardless

of whether municipal taxes are at issue. He also argued that the source of the funds

is a factual question that could not be resolved on a Rule 12 (b)(1) motion prior to

discovery, and that even if no municipal tax dollars had been used yet, they might

have to be drawn upon in the future if the Exchange Authority were confronted

with a revenue shortfall.

13

See ACA § 1311 (a) (providing for federal grant assistance to states to

establish exchanges); D.C. Code §§ 31-3171.03 (b)(1), (e), (f) (authorizing the

Exchange Authority to assess health insurance carriers to fund its operations).

7

The Superior Court rejected Mr. Vining‟s argument. Citing cases linking

municipal taxpayer standing to claims that actually do implicate municipal taxes,

the court ruled that Mr. Vining “has not demonstrated a reasonable inference that

municipal taxpayer funds have been appropriated to the defendant [E]xchange

[A]uthority to establish a cognizable injury to maintain standing to bring his

underlying complaint.”14 The court therefore granted the Exchange Authority‟s

Rule 12 (b)(1) motion to dismiss for lack of standing.15

II.

Mr. Vining contends that he has standing as a municipal taxpayer to bring

this action to prevent the illegal expenditure of municipal funds by the Exchange

Authority. He argues that the Superior Court erred in ruling otherwise, because it

should not have made a finding prior to discovery as to whether Exchange

14

Indeed, the court added, Mr. Vining “does not proffer any basis . . . to

conclude that the . . . [E]xchange [A]uthority has received or is receiving

municipal taxpayer funds beyond mere conjecture that the . . . [E]xchange

[A]uthority will experience a funding shortfall.”

15

In the alternative, the Superior Court also agreed with the Exchange

Authority‟s Rule 12 (b)(6) argument that the federal regulations implementing the

ACA superseded the “small employer” restriction in D.C. Code § 31-3171.01

(16)(A) and authorized the Exchange Authority to allow Members of Congress and

congressional staff to participate in the District‟s SHOP Exchange. We express no

view on this issue.

8

Authority operations were funded with taxpayer money, and, in any event, because

the source of the municipal funds used by the Exchange Authority is irrelevant to

his standing to sue to restrain their illegal expenditure. For the reasons that follow,

we disagree.

A. Municipal Taxpayer Standing

“Standing to sue is a doctrine rooted in the traditional understanding of a

case or controversy[,]”16 the words used in Article III of the Constitution to define

the proper scope of “[t]he judicial Power of the United States.”17 “No principle,”

the Supreme Court has declared, “is more fundamental to the judiciary‟s proper

role in our system of government than the constitutional limitation of federal-court

jurisdiction to actual cases or controversies.”18 In the District of Columbia,

Congress has vested “[t]he judicial power” over local cases and controversies in

16

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

17

U.S. Const. Art. III, §§ 1, 2.

18

Raines v. Byrd, 521 U.S. 811, 818 (1997) (quoting Simon v. Eastern Ky.

Welfare Rights Org., 426 U.S. 26, 37 (1976)).

9

the Superior Court and this court.19 Although Congress established the two

tribunals pursuant to Article I of the Constitution,20 we conform our exercise of

“judicial power” to the law of Article III standing.21

Constitutional standing requirements determine whether a plaintiff is “a

proper party to request an adjudication of a particular issue” by virtue of having a

genuine “personal stake” in the outcome.22 “[A] plaintiff raising only a generally

available grievance about government – claiming only harm to his and every

citizen‟s interest in proper application of the Constitution and laws, and seeking

relief that no more directly and tangibly benefits him than it does the public at

19

D.C. Code §§ 1-204.31 (a), 11-101 (2012 Repl.); see also D.C. Code §

11-705 (b) (2012 Repl.) (providing that the District of Columbia Court of Appeals

hears and determines “[c]ases and controversies”).

20

Id., § 11-101 (2).

21

Grayson v. AT&T Corp., 15 A.3d 219, 224 (D.C. 2011) (en banc)

(“[E]ven though Congress created the District of Columbia court system under

Article I of the Constitution, rather than Article III, this court has followed

consistently the constitutional standing requirement embodied in Article III.”); see

also, e.g., UMC Dev., LLC v. District of Columbia, 120 A.3d 37, 42 (D.C. 2015)

(“[W]e generally adhere to the case and controversy requirement of Article III, and

look to federal standing jurisprudence when considering the issue of a plaintiff‟s

standing.”); Friends of Tilden Park, Inc. v. District of Columbia, 806 A.2d 1201,

1206 (D.C. 2002) (similarly applying case-and-controversy standing

requirements).

22

Grayson, 15 A.3d at 229 & n.19 (internal quotation marks omitted).

10

large – does not state an Article III case or controversy.”23 Rather, “the

„irreducible constitutional minimum‟ of standing consists of three elements. . . .

The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to

the challenged conduct of the defendant, and (3) that is likely to be redressed by a

favorable judicial decision.”24 The burden is on the plaintiff to establish each of

these three elements.25 To establish an “[i]njury in fact,” the plaintiff must show

that he has “suffered „an invasion of a legally protected interest‟ that is „concrete

and particularized‟ and „actual or imminent, not conjectural or hypothetical.‟”26

23

Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74 (1992); see also,

e.g., Valley Forge Christian Coll. v. Ams. United for Separation of Church &

State, Inc., 454 U.S. 464, 482-83 (1982) (“This Court repeatedly has rejected

claims of standing predicated on the right, possessed by every citizen, to require

that the Government be administered according to law. . . .” (internal quotation

marks omitted)).

24

Spokeo, 136 S. Ct. at 1547 (citing, inter alia, Lujan, 504 U.S. at 560-61).

25

Id.

26

Id. at 1548 (quoting Lujan, 504 U.S. at 560). A particularized injury is

one that “affect[s] the plaintiff in a personal and individual way.” Lujan, 504 U.S.

at 560 n.1. The additional requirement of concreteness is meant to convey that the

injury also “must actually exist,” i.e., be “real,” and not “abstract.” Spokeo, 136 S.

Ct. at 1548. Illustratively, an otherwise inconsequential violation of a plaintiff‟s

merely procedural right – a deprivation “divorced from any concrete harm” – does

not satisfy the injury-in-fact requirement. Id. at 1549.

11

To establish his standing to bring this case, Mr. Vining relies on his status as

a municipal taxpayer suing to prevent the putatively unlawful expenditure of

municipal funds. Generally speaking, taxpayers lack standing (as taxpayers) to

challenge the lawfulness of governmental expenditures “because the alleged injury

is not „concrete and particularized,‟ but instead a grievance the taxpayer „suffers in

some indefinite way in common with people generally,‟” and also because “the

injury is not „actual or imminent,‟ but instead „conjectural or hypothetical.‟”27 But

municipal taxpayer suits historically have been viewed differently, as the Supreme

Court acknowledged in Frothingham v. Mellon.28 Distinguishing such actions

from suits by federal taxpayers, the Frothingham Court accepted the proposition

that “resident taxpayers may sue to enjoin an illegal use of the moneys of a

27

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344 (2006) (internal

quotation marks and citations omitted). In Cuno, the Supreme Court held that state

taxpayers lacked standing to challenge a state tax credit as a violation of the

Commerce Clause. See id. at 349. In the leading case rejecting federal taxpayer

suits to enjoin improper federal appropriations, the Court explained that the

taxpayer‟s “interest in the moneys of the treasury – partly realized from taxation

and partly from other sources – is shared with millions of others, is comparatively

minute and indeterminable, and the effect upon future taxation, of any payment out

of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an

appeal to the preventive powers of a court of equity.” Massachusetts v. Mellon,

262 U.S. 447, 487 (1923).

28

262 U.S. 447 (1923). Frothingham was a companion case to

Massachusetts v. Mellon, supra note 27; the Supreme Court decided the two

appeals in the same opinion.

12

municipal corporation” on the premise that “[t]he interest of a taxpayer of a

municipality in the application of its moneys is direct and immediate.” 29 Although

it has been cogently argued that Frothingham‟s endorsement of municipal taxpayer

standing is “on its face inconsistent with current principles of constitutional

standing,”30 the doctrine has not been repudiated. For present purposes, we assume

the continued viability in the District of Columbia of the proposition that municipal

taxpayers have the right, “in the proper case, to initiate suit against the city

government to prevent illegal use of municipal funds.”31

29

Frothingham, 262 U.S. at 486 (citing Roberts v. Bradfield, 12 App. D.C.

453, 459-60 (1898), aff’d, 175 U.S. 291 (1899) and Crampton v. Zabriskie, 101

U.S. 601, 609 (1880)). The Court somewhat cryptically observed that “[t]he

reasons which support the extension of the equitable remedy to a single taxpayer in

such cases are based upon the peculiar relation of the corporate taxpayer to the

corporation, which is not without some resemblance to that subsisting between

stockholder and private corporation.” Id. at 487. The analogy appears to be that

taxpayers are considered the equitable owners of municipal funds by virtue of their

tax contributions to those funds, just as stockholders have an interest in the funds

of their corporation. See 74 Am. Jur. 2d Taxpayers’ Actions §§ 2, 13 (2012); cf.

Am. Atheists, Inc. v. City of Detroit Downtown Dev. Auth., 567 F.3d 278, 285 (6th

Cir. 2009) (“Like a shareholder of a private corporation, a municipal taxpayer has

an immediate interest in how the municipality spends resources that reflect his

contributions.”).

30

District of Columbia Common Cause v. District of Columbia, 858 F.2d 1,

11 (D.C. Cir. 1988) (Williams, J., concurring).

31

Calvin-Humphrey v. District of Columbia, 340 A.2d 795, 799 (D.C.

1975) (dictum, citing Roberts, supra note 29, and Massachusetts v. Mellon, supra

note 27).

13

Even so, the Supreme Court has clarified that a municipal taxpayer‟s suit can

satisfy the “case or controversy” requirement of Article III “only when it is a good-

faith pocketbook action” complaining of “a direct dollars-and-cents injury.”32 This

court accordingly has understood the municipal taxpayer standing doctrine to mean

that “a taxpayer may sue a municipal corporation to enjoin the misuse or

misappropriation of funds [that] such corporation derives from taxes paid by such

local taxpayers.”33 It is at least plausible to say that a municipal taxpayer suffers

what the Frothingham Court called a “direct and immediate” (if typically small)

pecuniary injury from the unlawful expenditure of his tax dollars because such an

expenditure might be said to increase his tax burden. But if the municipality‟s

unlawful expenditure is not funded by his taxes, he cannot be said to suffer such

direct harm from the expenditure – let alone what the Supreme Court‟s more recent

decisions describe as an “injury in fact” that is “concrete and particularized” and

“actual or imminent, not conjectural or hypothetical.” Without a link between his

municipal taxes and the challenged municipal expenditure, he is in the position of

raising only a commonly available grievance and “seeking relief that no more

32

Doremus v. Bd. of Educ. of the Borough of Hawthorne, 342 U.S. 429, 434

(1952).

33

Debevoise v. Back, 359 A.2d 279, 280 (D.C. 1976) (emphasis added). It

appears that this 1976 decision was the last case in which this court had occasion to

mention municipal taxpayer standing.

14

directly and tangibly benefits him than it does the public at large.”34 Thus,

“municipal taxpayers do not have standing [to sue to enjoin municipal

expenditures] when no tax moneys are spent.”35

Mr. Vining takes issue with this conclusion, at least insofar as the local

courts of the District of Columbia are concerned. He argues that binding precedent

in this jurisdiction from the nineteenth and early twentieth centuries requires us to

hold that a District of Columbia taxpayer has the right to sue in Superior Court to

prevent the illegal expenditure of municipal funds regardless of the source of those

funds or whether taxpayer monies are in any way at stake. The cases involving the

34

Lujan, 504 U.S. at 573-74.

35

District of Columbia Common Cause, 858 F.2d at 4; see also, e.g.,

ACLU-NJ ex rel. Miller v. Twp. of Wall, 246 F.3d 258, 264 (3d Cir. 2001) (“[W]e

cannot find that plaintiffs have carried their burden of proving an expenditure of

revenues to which they contribute that would make their suit a good-faith

pocketbook action. Consequently, plaintiffs cannot invoke federal jurisdiction as

[municipal] taxpayers.” (internal citations and quotation marks omitted)); Clay v.

Fort Wayne Cmty. Sch., 76 F.3d 873, 879 (7th Cir. 1996) (“Municipal taxpayer

status does not confer standing absent some allegation by the plaintiffs of an illegal

use of tax revenues.”); Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 408 (5th

Cir. 1995) (“In order to establish . . . municipal taxpayer standing . . . a plaintiff

must not only show that he pays taxes to the relevant entity, he must also show that

tax revenues are expended on the disputed practice.”); 74 Am. Jur. 2d Taxpayers’

Actions § 37 (municipal taxpayers generally cannot enjoin the wrongful

expenditure of funds not raised by taxation, and “the mere possibility that under

some circumstances the taxing unit might be required to make up a deficiency with

public funds is insufficient to entitle the taxpayer to maintain a bill in equity”).

15

expenditure of municipal funds that Mr. Vining cites – Roberts v. Bradfield36 and

B. F. Cummins Co. v. Burleson37 – did not go nearly so far, however. They say (in

what we take to be dicta) that a municipal taxpayer may sue to prevent the misuse

of municipal funds, but they do not address at all whether such a taxpayer may do

so when no tax dollars are involved in the misuse.38 We therefore cannot view the

cases on which Mr. Vining relies as having decided the question or as foreclosing

us from doing so now. “The rule of stare decisis is never properly invoked unless

in the decision put forward as precedent the judicial mind has been applied to and

passed upon the precise question.”39 Particularly where the question is one of

subject-matter jurisdiction, as the question of standing is here, prior decisions that

overlooked the issue cannot bind us when it finally is presented to us for

36

Supra note 29.

37

40 App. D.C. 500 (D.C. Ct. App. 1913).

38

See Roberts, 12 App. D.C. at 459-60; Burleson, 40 App. D.C. at 508-09.

Two other cases cited by Mr. Vining are even less on point. Wheless v. Mellon, 10

F.2d 893 (D.C. Ct. App. 1926), involved a federal taxpayer‟s suit to restrain a

federal government expenditure, which was barred by the Supreme Court‟s

decision in Frothingham. The only reference in Wheless to municipal taxpayer

actions was in a quotation from Frothingham. 10 F.2d at 894. And Calvin-

Humphrey, supra note 31, involved no issue of taxpayer standing to sue and

merely mentioned in dicta that taxpayers could sue to prevent illegal use of

municipal funds “in the proper case.” 340 A.2d at 799.

39

Murphy v. McCloud, 650 A.2d 202, 205 (D.C. 1994).

16

decision.40 But even if these older cases actually had held that a municipal

taxpayer can sue to prevent spending that does not implicate his tax dollars, the

“jurisprudential basis” of that hypothetical ruling has been so “substantially

undermined” by subsequent standing decisions of the Supreme Court that stare

decisis “does not oblige us to follow” it.41

We therefore hold that a municipal taxpayer does not have standing to sue to

prevent expenditures if his tax dollars do not contribute to them.

B. The Source of the Exchange Authority’s Funds

In order to refute the allegation in Mr. Vining‟s complaint that the Exchange

Authority utilized municipal tax revenues, the Exchange Authority relied primarily

on the District‟s Budget and Financial Plans for the fiscal years in question (2013

to 2015). Because the Budget Plans are legislative enactments transmitted to

Congress in conjunction with the annual Budget Request Acts,42 the Superior Court

40

See id. (citing Hagans v. Lavine, 415 U.S. 528, 533 n.5 (1974)).

41

See Smith v. United States, 984 A.2d 196, 200 (D.C. 2009); see also, e.g.,

Frendak v. United States, 408 A.2d 364, 379 n.27 (D.C. 1979).

42

See D.C. Code § 1-204.46 (2016 Repl.). The budget documents for each

fiscal year are available to the public, see D.C. Code § 1-204.42 (a) (2016 Repl.),

(continued…)

17

could take judicial notice of them (as can this court).43 It was permissible for the

Superior Court to consider these documents when it did because “a trial court‟s

jurisdictional inquiry under Rule 12 (b)(1) may extend beyond the facts pled in the

complaint” to encompass evidence submitted by the parties without thereby

converting the motion into one for summary judgment.44 When the jurisdictional

challenge is thus expanded, the plaintiff bears the burden of proof without the

benefit of any presumption that the allegations of the complaint are true.45 Thus, in

responding to the 12 (b)(1) motion, Mr. Vining also cited budget documents

outside the four corners of the complaint. We therefore are not persuaded by his

claim that the Superior Court ruled prematurely on the question of his standing.

The Budget Plans proffered by the Exchange Authority state that its funding

derived from sources other than local taxes. As Mr. Vining has not seriously

(…continued)

and may be found on the website of the District‟s Office of the Chief Financial

Officer at http://cfo.dc.gov under the heading “Budget and Revenue.”

43

See Bostic v. District of Columbia, 906 A.2d 327, 332 (D.C. 2006).

44

UMC Dev., LLC v. District of Columbia, 120 A.3d 37, 43 (D.C. 2015).

45

Id. at 43 n.19 (citing Heard v. Johnson, 810 A.2d 871, 878 (D.C. 2002)).

18

disputed that fact,46 we need only provide a brief summary of what each Budget

Plan discloses. For fiscal year 2013, the year in which the Exchange Authority

commenced its operations, the Budget Plan provided that it would be funded by

federal grant monies totaling $53,543,000 through the District‟s Department of

Health Care Finance (“DHCF”).47 For fiscal year 2014, the gross budget of the

Exchange Authority was $66,140,499, to be funded by a “sub-grant” from DHCF

of unused federal grant money from the preceding year plus assessments levied on

health insurance carriers.48 Finally, the Exchange Authority was budgeted to

receive $28,751,244 for fiscal year 2015, all of it from assessments on insurance

carriers.49

46

Mr. Vining argued that the Exchange Authority may have received

municipal tax money because, according to the fiscal year 2015 Budget Plan, its

funds had come through the District‟s General Fund – which the Budget Plan

defined as the District‟s “principal operating fund” comprising “Local, Dedicated

Tax, and Special Purpose Revenues.” However, as set forth above, the more

specific information about the source of the Exchange Authority‟s funds contained

in the Budget Plans contradicted Mr. Vining‟s supposition. He proffered nothing

to refute the specific statements in the Budget Plans regarding the sources of the

Exchange Authority‟s funds.

47

See FY 2013 Proposed Budget and Financial Plan, Vol. 3 – Agency

Budget Chapters Part II, pp. E-189, E-195.

48

See FY 2014 Proposed Budget and Financial Plan, Vol. 3 – Agency

Budget Chapters Part II, pp. H-86.

49

See FY 2015 Proposed Budget and Financial Plan, Vol 4 – Agency

Budget Chapters Part III, pp. E-199, E-202, H-84, H-88.

19

The foregoing information presented to the Superior Court, not substantively

challenged by Mr. Vining, supported the court‟s conclusion that he had “not

demonstrated a reasonable inference” that the Exchange Authority spent municipal

taxpayer funds.50 Mr. Vining argues that if the Exchange Authority ever

experiences a shortage of funds, the District Government might be required to

allocate monies from the General Fund in order to administer the SHOP Exchange,

which would mean drawing on municipal tax dollars. But he has proffered no

reason to think there will be a funding shortfall. The possibility is wholly

speculative, especially since in 2015 the Council directed the Exchange Authority

to continue to support its operations through assessments levied on health

carriers.51 Standing requires harm that is “actual or imminent, not conjectural or

hypothetical.”52

50

Moreover, since monies in the Exchange Fund cannot “revert” to the

General Fund under any circumstances, see supra note 8, those monies cannot be

redeployed to reduce the municipal tax burden on Mr. Vining and other District

residents.

51

See D.C. Code § 31-3171.03 (f) (2017 Cum. Supp.).

52

Lujan, 504 U.S. at 560. Even if Mr. Vining might have standing in the

future if his hypothetical scenario of a funding shortfall requiring resort to

municipal taxes comes to pass, his claim is nowhere near ripe for adjudication at

this time. “Ripeness is a justiciability doctrine designed „to prevent the courts,

through avoidance of premature adjudication, from entangling themselves in

(continued…)

20

For the foregoing reasons, we hold that Mr. Vining has not borne his burden

to show he has municipal taxpayer standing to sue to enjoin the Exchange

Authority‟s use of municipal funds to allow Members of Congress and their staff to

participate in the SHOP Exchange. We therefore affirm the dismissal of his

complaint pursuant to Rule 12 (b)(1).

So ordered.

(…continued)

abstract disagreements over administrative policies, and also to protect the

agencies from judicial interference until an administrative decision has been

formalized and its effects felt in a concrete way by the challenging parties.‟” Local

36 Int’l Ass’n of Firefighters v. Rubin, 999 A.2d 891, 895-96 (D.C. 2010) (quoting

Nat’l Park Hosp. Ass’n v. Dep’t of the Interior, 538 U.S. 803, 807-08 (2003)).

“We may raise the issue of ripeness sua sponte even though neither party has

discussed it in its briefs.” Id. at 896.