Case 1:18-cv-02849-ELH Document 27 Filed 12/03/18 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
STATE OF MARYLAND,

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Plaintiff,

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v.
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UNITED STATES OF AMERICA,
et al.,

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Defendants.
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Case No.: 1:18-cv-2849-ELH

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PLAINTIFF’S OPPOSITION TO DEFENDANTS’
MOTION TO DISMISS AMENDED COMPLAINT

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS .......................................................... 1
BACKGROUND ............................................................................................................................ 1
STANDARD OF REVIEW ............................................................................................................ 3
ARGUMENT .................................................................................................................................. 5
I. MARYLAND HAS ADEQUATELY ALLEGED THAT DEFENDANTS’ IMPENDING REFUSAL TO
ENFORCE THE ACA WILL CAUSE THE STATE MULTIPLE INJURIES-IN-FACT.............................. 5
A. The Amended Complaint Alleges That Defendants Will Shortly Cease
Enforcement of Some or All of the ACA ........................................................................... 5
B. Defendants’ Impending Refusal to Enforce the ACA Will Invade the State’s
Legally Protected Interests .................................................................................................. 8
1. The Amended Complaint Alleges Injuries to Maryland’s Proprietary and
Pecuniary Interests ........................................................................................................ 8
2. The Amended Complaint Alleges Injuries to the State’s Quasi-Sovereign
Interests ....................................................................................................................... 12
3. The Amended Complaint Alleges Injuries to the State’s Sovereign Interests ............ 15
II. DEFENDANTS’ CHALLENGES TO MARYLAND’S STANDING ARE MERITLESS ............................ 16
A. Maryland’s Injuries Arise from Defendants’ Impending Conduct, Not from Any
Litigation Position or the Future Decision of Another Court ........................................... 17
B. Maryland Alleges Multiple Ways in Which Defendants’ Conduct Will Invade the
State’s Legally Protected Interests .................................................................................... 18
C. Maryland’s Injuries Are Not Speculative ......................................................................... 18
III. THE AMENDED COMPLAINT STATES A CLAIM ......................................................................... 21
A. The Amended Complaint Alleges a Cause of Action ....................................................... 21
B. The Amended Complaint Alleges an “Actual Controversy” ............................................ 23
CONCLUSION ............................................................................................................................. 24

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TABLE OF AUTHORITIES
Cases 
Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,
458 U.S. 592 (1982) .......................................................................................................... passim
Am. Sch. of Magnetic Healing v. McAnnulty,
187 U.S. 94 (1902) ................................................................................................................... 22
Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n,
135 S. Ct. 2652 (2015) ............................................................................................................. 14
Armstrong v. Exceptional Child Ctr., Inc.,
135 S. Ct. 1378 (2015) ....................................................................................................... 22, 23
Aziz v. Trump,
231 F. Supp. 3d 23 (E.D. Va. 2017) ......................................................................................... 14
Clarke v. Sec. Indus. Ass’n,
479 U.S. 388 (1987) ................................................................................................................. 21
Clinton v. City of New York,
524 U.S. 417 (1998) ................................................................................................................. 20
Cooksey v. Futrell,
721 F.3d 226 (4th Cir. 2013) ................................................................................................ 4, 18
District of Columbia v. Trump,
291 F. Supp. 3d 725 (D. Md. 2018) ........................................................................... 4, 8, 14, 19
Hensley ex rel. North Carolina v. Price,
876 F.3d 573 (4th Cir. 2017) .................................................................................................... 20
Johnson v. City of Shelby,
135 S. Ct. 346 (2014) ......................................................................................................... 22, 23
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ......................................................................................................... 3, 4, 21
Martin v. Wilks,
490 U.S. 755 (1989) ................................................................................................................. 18
Maryland v. Louisiana,
451 U.S. 725 (1981) ................................................................................................................... 8
Massachusetts v. EPA,
549 U.S. 497 (2007) ....................................................................................................... 4, 14, 16
Massachusetts v. Mellon,
262 U.S. 447 (1923) ................................................................................................................. 14
MedImmune, Inc. v. Genetech, Inc.,
549 U.S. 118 (2007) ................................................................................................................. 23
Monsanto Co. v. Geertson Seed Farms,
561 U.S. 139 (2010) ............................................................................................................. 3, 21
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Nat’l Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519 (2012) ............................................................................................................. 9, 10
Printz v. United States,
521 U.S. 898 (1997) ................................................................................................................. 12
Raines v. Byrd,
521 U.S. 811 (1997) ................................................................................................................... 4
Summers v. Earth Island Inst.,
555 U.S. 488 (2009) ................................................................................................................. 21
Texas v. United States,
809 F.3d 134 (5th Cir. 2015) ............................................................................................. passim
Texas v. United States,
86 F. Supp. 3d 591 (S.D. Tex. 2015)........................................................................................ 14
Thomas v. Union Carbide Agric. Prods. Co.,
473 U.S. 568 (1985) ................................................................................................................. 12
Virginia v. Sebelius,
656 F.3d 253 (4th Cir. 2011) .................................................................................................... 14
White Tail Park, Inc. v. Stroube,
413 F.3d 451 (4th Cir. 2005) ................................................................................................ 4, 18
Wyoming v. Oklahoma,
502 U.S. 437 (1992) ............................................................................................................. 8, 12
Constitutional Provisions
U.S. Const. art. III ..................................................................................................................... 1, 23
Statutes 
Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202 ......................................................... 1, 22, 23
Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) ......................................... 6
Natural Gas Act, 15 U.S.C. §§ 717-717z ...................................................................................... 13
Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010)..... passim
42 U.S.C. § 300gg-22(a) ................................................................................................... 10, 11, 12
42 U.S.C. § 300gg-61(a) ......................................................................................................... 11, 12
42 U.S.C. § 1395dd ....................................................................................................................... 19
42 U.S.C. § 18091(2)(E) ............................................................................................................... 13
42 U.S.C. § 18091(2)(F)-(G) ........................................................................................................ 13
Rules
Fed. R. Civ. P. 12(b)(1)............................................................................................................... 5, 8

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Other Authorities 
Ctrs. for Medicare & Medicaid Servs., Compliance and Enforcement,
https://www.cms.gov/cciio/programs-and-initiatives/health-insurance-marketreforms/compliance.html (last visited Dec. 2, 2018) ............................................................... 11
Carmen DeNavas-Walt, Bernadette D. Proctor & Jessica C. Smith, Dep’t of Commerce,
U.S. Census Bureau, Income, Poverty, and Health Insurance Coverage in the United
States: 2009 (Sept. 2010) ......................................................................................................... 10
Richard H. Fallon, Jr., John F. Manning, Daniel J. Meltzer & David L. Shapiro, Hart and
Wechsler’s The Federal Courts and the Federal System (7th ed. 2015) ................................. 15
Letter from Eric H. Holder, Jr., Attorney Gen., to John A. Boehner, Speaker, U.S. House
of Representatives (Feb. 23, 2011), https://www.justice.gov/opa/pr/letter-attorneygeneral-congress-litigation-involving-defense-marriage-act ....................................................... 6
Letter from Jefferson B. Sessions III, Attorney Gen., to Paul Ryan, Speaker, U.S. House
of Representatives (June 7, 2018), https://www.justice.gov/file/1069806/download ................ 6

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PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS
The State of Maryland filed this action in response to multiple indications that at some
point shortly after January 1, 2019, Defendants would stop enforcing some or all of the Patient
Protection and Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119 (2010). The
Amended Complaint explained how failing to enforce the statute as a whole, or even just refusing
to enforce the protections for those with pre-existing conditions, would cause substantial pecuniary
harm to the State, injure the health and welfare of Maryland citizens, and require the State to
reconfigure its regulation of the state health and insurance industries. Those impending injuries to
the State’s financial, quasi-sovereign, and sovereign interests are more than sufficient to confer
standing on the State to invoke this Court’s jurisdiction. Having established a controversy between
the parties sufficient to establish Article III standing, the State has also satisfied the “actual
controversy” requirement for relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202,
which supplements the longstanding cause of action afforded by this Court’s jurisdiction to provide
equitable relief against federal officials’ violation of federal law. Accordingly, the Court should
deny the motion to dismiss or, in the alternative, grant the State leave to file a Second Amended
Complaint to supplement its standing allegations.
BACKGROUND
1. President Trump campaigned on a promise to eliminate the ACA. Having failed to
achieve that objective through legislative repeal, his Administration has taken repeated steps to
undermine its effectiveness, including by refusing to enforce critical aspects of the statutory
regime. Seizing on litigation filed by Texas and several other states, the Administration has
informed Congress that it believes the ACA’s minimum coverage requirement (sometimes called
the “individual mandate”) will become unconstitutional as of January 1, 2019. The Administration
further stated that it would view the ACA’s critical protections for those with pre-existing
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conditions as inseverable from the minimum coverage requirement and, therefore, unenforceable
as well. The Department of Justice then urged the district court hearing Texas’s case to issue a
declaratory judgment embodying the Administration’s position and promised to abide by that
judgment.
In response, Maryland filed this lawsuit, seeking to head off the myriad of serious harms
that will befall the State and its residents if the Administration – either on its own accord, or with
the cover of a court order – ceases enforcing the ACA in whole or in part. As discussed below,
the Amended Complaint explains how that failure of enforcement will impose financial costs on
the State, injure the financial and physical health of its residents, and force the State to reevaluate
and adjust its regulation of the State’s health and insurance markets.
2. While this case was pending, Attorney General Jefferson B. Sessions III resigned. The
Attorney General Succession Act designates the Deputy Attorney General as Acting Attorney
General pending the confirmation of the Attorney General’s successor. Pl’s Mot. Prelim. Inj. or
Mot. Substitute, ECF 6-1 at 8-13 (Nov. 13, 2018). Despite this, the President putatively appointed
the former Attorney General’s Chief of Staff, Matthew G. Whitaker, as Acting Attorney General,
charged with exercising all the powers of that office, including the supervision of this litigation.
Maryland subsequently challenged Whitaker’s assumption of those powers in this Court, filing an
Amended Complaint, asking the Court to order Deputy Attorney General Rod J. Rosenstein
substituted for former Attorney General Sessions, and seeking a preliminary injunction.
On November 13, 2018, this Court issued a scheduling order requiring the parties to brief
the challenge to Whitaker’s appointment by December 10, in advance of oral argument on the
motion for preliminary injunction on December 19, 2018. The Court further suggested that after
the hearing, the Court would set a date for Defendants’ response to Maryland’s Amended

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Complaint. Order, ECF 7 (Nov. 13, 2018). Three days later, Defendants nevertheless filed a
motion to dismiss for lack of jurisdiction and failure to state a claim.
3. In ordinary circumstances, Maryland would move for permission to amend its Amended
Complaint in response to the motion to dismiss, to clarify certain matters in the hopes of narrowing
the issues this Court must decide. However, after Defendants filed their motion, this Court set a
briefing schedule for the motion to dismiss, noting that the standing issues raised in the motion
may be relevant to the pending motion for a preliminary injunction. Order, ECF 13 (Nov. 19,
2018). In order to expedite the case and be responsive to the Court’s concern about the interplay
between the motion to dismiss and the motion for preliminary injunction, Maryland is filing this
opposition to the Defendants’ motion, while simultaneously filing a separate Motion For Leave
To File A Second Amended Complaint, setting forth the amendments Maryland would propose to
make to its Amended Complaint if the Court was inclined to grant the Defendants’ motion.
STANDARD OF REVIEW
To establishing standing, Maryland must plead facts showing that it has “suffered an
‘injury-in-fact’—an invasion of a legally protected interest which is (a) concrete and
particularized, and (b) ‘actual or imminent, not ‘conjectural’ or ‘hypothetical.’”

Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted). It must further allege “a causal
connection between the injury and the conduct complained of” and that a favorable decision will
likely redress that injury. Id. at 560-61. In cases challenging government conduct, the plaintiff
need not be the subject of the government’s action or inaction, so long as the government’s conduct
causes the plaintiff injury. See, e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010)
(plaintiffs had standing to challenge federal agency’s failure to regulate a third party’s use of
genetically modified seeds); Texas v. United States, 809 F.3d 134 (5th Cir. 2015) (Texas had

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standing to challenge federal government’s failure to enforce immigration laws), aff’d by an
equally divided court, 136 S. Ct. 2271 (2016).
“At the pleading stage, general factual allegations of injury resulting from the defendant’s
conduct may suffice, for on a motion to dismiss [the courts] ‘presume that general allegations
embrace those specific facts that are necessary to support the claim.” Lujan, 504 U.S. at 561
(citation and brackets omitted). The court must also “assume that on the merits the plaintiffs would
be successful in their claims.” Cooksey v. Futrell, 721 F.3d 226, 239 (4th Cir. 2013) (internal
quotation marks omitted).
The purpose of these standing requirements is to ensure that the “‘plaintiff is the proper
party to bring [the] suit.’” White Tail Park, Inc. v. Stroube, 413 F.3d 451, 460 (4th Cir. 2005)
(quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)) (alteration in original). And as the Supreme
Court has explained, “it must surely be conceded that, if the health and comfort of the inhabitants
of a State are threatened, the State is the property party to represent and defend them.” Alfred L.
Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 603-04 (1982) (internal quotation
marks omitted). Accordingly, it “is of considerable relevance that the party seeking review here
is a sovereign State and not, as it was in Lujan, a private individual.” Massachusetts v. EPA, 549
U.S. 497, 518 (2007). Given their unique role and responsibilities in our federal system, “States
are not normal litigants for purposes of invoking federal jurisdiction” but are “entitled to special
solicitude in [the] standing analysis.” Id. at 518, 520; see also District of Columbia v. Trump, 291
F. Supp. 3d 725, 737 (D. Md. 2018).

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ARGUMENT
I.

MARYLAND HAS ADEQUATELY ALLEGED THAT DEFENDANTS’ IMPENDING REFUSAL TO
ENFORCE THE ACA WILL CAUSE THE STATE MULTIPLE INJURIES-IN-FACT.
Defendants’ standing challenge has no merit. The Amended Complaint fully explains why,

unless this Court intervenes, Defendants’ conduct will soon inflict multiple injuries-in-fact on the
State and its residents.
A. The Amended Complaint Alleges That Defendants Will Shortly Cease
Enforcement of Some or All of the ACA.
The Amended Complaint begins by identifying the source of the injuries this suit is
intended to avoid – Defendants’ impending refusal to enforce some or all of the ACA’s provisions.
The Amended Complaint explains that there is “an imminent risk that the Defendants will not
enforce the guaranteed issue, community rating, and prohibition on pre-existing condition
exclusions provisions.” Am. Compl., ECF 8 ¶ 42 (Nov. 14, 2018).1 That fundamentally factual
allegation must be accepted as true at this stage.2 It is well supported in any event, its factual basis
set forth in detail over the course of ten paragraphs and seven pages. See id. ¶¶ 6-7, pp. 35-42.
The Amended Complaint explains, for example, that the Attorney General has informed Congress
that the Administration will not defend the constitutionality of the Act and has affirmatively argued

1

Although the Amended Complaint alleges that non-enforcement is imminent, it need not
(and does not) claim that Defendants will cease enforcement exactly on January 1. In the Texas
proceedings, the Department of Justice suggested that the Department of Health and Human
Services may first issue new regulations embodying the Administration’s enforcement position.
See Tr. Hearing on Mot. for Prelim. Inj. at 30-31, Texas v. United States, No. 18-cv-167 (N.D.
Tex. Sept. 5, 2018).
2

See, e.g., Wikimedia Found. v. Nat’l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017).
Defendants could have asked this Court to reach a contrary conclusion on the basis of additional
evidence in support of their Fed. R. Civ. P. 12(b)(1) motion. See, e.g., Williams v. United States,
50 F.3d 299, 304 (4th Cir. 1995). But they have elected not to do so, seeking dismissal solely on
the basis of the Amended Complaint as pleaded.

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in court that the minimum coverage requirement will be unconstitutional in the new year, rendering
the guaranteed issue, community rating, and pre-existing condition exclusion provisions
unenforceable as well.

Id. ¶ 10.

Notably, in contrast to similar letters issued by other

Administrations, the Attorney General made no promise that the Administration would continue
to enforce these provisions while their validity was being litigated. Compare Letter from Jefferson
B. Sessions III, Attorney Gen., to Paul Ryan, Speaker, U.S. House of Representatives (June 7,
2018), https://www.justice.gov/file/1069806/download, with Letter from Eric H. Holder, Jr.,
Attorney Gen., to John A. Boehner, Speaker, U.S. House of Representatives (Feb. 23, 2011),
https://www.justice.gov/opa/pr/letter-attorney-general-congress-litigation-involving-defensemarriage-act (notwithstanding Administration’s belief that the Defense of Marriage Act, Pub. L.
No. 104-199, 110 Stat. 2419 (1996), was unconstitutional, “the President has instructed Executive
agencies to continue to comply with Section 3 . . ., consistent with the Executive’s obligation to
take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the
judicial branch renders a definitive verdict against the law’s constitutionality”).
The Amended Complaint further explains that the litigation position and congressional
letter took place in a context that reinforces the inference that Defendants will refuse to enforce
the statute regardless of any court order. It explains that “one of President Trump’s core policy
goals has been to undo the Affordable Care Act.” Am. Compl. ¶ 11; see also id. ¶ 35 (“Since
taking office, the Trump Administration has engaged in a sustained effort to ‘explode’ the
Affordable Care Act. . . .”); id. (“On the day of his inauguration, President Trump signed an
Executive Order titled ‘Minimizing the Economic Burden of the Patient Protection and Affordable
Care Act Pending Repeal.’”).

The Amended Complaint then details various steps the

Administration has taken to achieve that goal, including not only a failed attempt at legislative

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repeal, but also a variety of executive actions “to undermine the enforcement of its provisions.”
Id. Some of those measures – such as curtailing funding for federally-facilitated exchanges, id.
¶ 11 – provide concrete evidence that the Administration is prepared to take unilateral action to
achieve its express goal of undermining the Act. But of even greater relevance, the Administration
has also refused to enforce certain provisions of the statute, even absent the compulsion of a court
order. The Administration has, for example, refused to enforce provisions of the law requiring
cost-sharing reduction payments to insurance companies and issued rules with the effect of
partially suspending enforcement of some of the Act’s nondiscrimination provisions for certain
plans. Id. ¶¶ 11, 36, 38.
The Amended Complaint also describes how the Administration has seized upon nonbinding or irrelevant litigation results as an excuse to voluntarily change its enforcement policies
in other areas. For example, pointing to a Fifth Circuit decision that is binding in only three states,
the Administration suspended enforcement of the Deferred Action for Childhood Arrivals program
throughout the nation. See Am. Compl. ¶ 39. The Administration similarly used the mere filing
of a private lawsuit as excuse to abandon enforcement of an export-control statute with respect to
plans for 3-D printed guns. Id. ¶ 40.
“It is in this context of open hostility to enforcement of the Affordable Care Act and a
demonstrated willingness to seize upon the threat or pendency of litigation, regardless of merit, as
an excuse to abandon long-held administrative enforcement policies that Attorney General
Sessions announced his decision not to defend [the minimum coverage], the guaranteed issue,
community rating, and prohibition on pre-existing condition exclusion provisions.” Am. Compl.
¶ 42. On the basis of all this evidence, the Amended Complaint alleges, there is an “imminent risk
that Defendants will not enforce” these provisions after January 1. Id.

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Notably, Defendants do not dispute that they will stop enforcing the ACA in full or in part
after January 1, even though they were entitled to ask this Court to resolve factual disputes in
ruling on a Fed. R. Civ. P. 12(b)(1) motion. See supra n.2.
B.

Defendants’ Impending Refusal to Enforce the ACA Will Invade the State’s
Legally Protected Interests.

The Amended Complaint also sets forth the ways in which Defendants’ impending conduct
will cause Maryland a cognizable injury-in-fact. The Supreme Court has held that a State may sue
to avoid or remedy injuries to its proprietary, quasi-sovereign, and sovereign interests. See, e.g.,
Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601-02 (1982); see also
District of Columbia v. Trump, 291 F. Supp. 3d 725, 737 (D. Md. 2018). Here, the State has
adequately alleged injuries of each type.
1.

The Amended Complaint Alleges Injuries to Maryland’s Proprietary and
Pecuniary Interests.

Financial injuries constitute the quintessential invasion of a legally protected interest. See,
e.g., Wyoming v. Oklahoma, 502 U.S. 437, 447-48 (1992); Maryland v. Louisiana, 451 U.S. 725,
736-37 (1981). For example, in Texas v. United States, the Fifth Circuit held that Texas had
standing to challenge the President’s alleged failure to enforce federal immigration law against a
class of undocumented immigrants. 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided
court, 136 S. Ct. 2271 (2016).

Although Texas, like Maryland, was challenging the

Administration’s refusal to enforce the law against third parties, the Fifth Circuit found standing
because the non-enforcement caused an increase in the cost of administering a state program
(issuing drivers’ licenses). See id. at 155-64. Although it recognized that the chain of causation
included numerous links – failure to enforce immigration laws meant there were more
undocumented residents in the State; those residents were entitled under state law to receive

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drivers’ licenses; and issuing drivers’ licenses was costly to the State – the Fifth Circuit nonetheless
held that Texas established an injury-in-fact traceable to the Executive’s alleged non-enforcement
of federal law. Id. at 155-57.
Here, the Amended Complaint likewise alleges multiple ways in which non-enforcement
of the ACA, in whole or in part, would inflict similar financial costs upon the State.
a. To start, Defendants do not (and cannot) dispute that the State would be financially
injured if Defendants stopped enforcing the ACA entirely. The Amended Complaint alleges that
in “Fiscal Year 2017 alone, Maryland received more than $2.77 billion in federal funds as part of
its budget to provide health care coverage to its residents because of the Affordable Care Act” and
another “$65 million from the law’s Prevention and Public Health Fund between fiscal years 2012
and 2016.” Am. Compl. ¶ 5.
But even if Defendants simply refused to enforce the provisions regarding pre-existing
conditions, the Amended Complaint alleges that this failure would impose serious financial harm
on the State. For example, the Amended Complaint explains that Maryland operates an “all-payer”
system under which the costs of uncompensated hospital care are spread among hospitals and,
from there, passed on to all payers of hospital rates. Am. Compl. ¶ 48. Defendants cannot question
that elimination of the guaranteed issue, community rating, and prohibition on pre-existing
condition exclusions provisions would swell the ranks of the uninsured or underinsured persons in
Maryland – the inability of those with pre-existing conditions to obtain insurance is the principal
reason Congress enacted those protections in the first place. See Nat’l Fed’n of Indep. Bus. v.
Sebelius, 567 U.S. 519, 547 (2012) (NFIB) (opinion of Roberts, C.J.). Nor can Defendants
reasonably complain that it is speculative to assert that increased uncompensated hospital care will
result from this increase in the number of uninsured or underinsured individuals with pre-existing

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conditions in the State, who are more likely to need medical care (and often expensive medical
care at that).3 From there, it requires no great leap to conclude that “[b]ecause Maryland is a payer
of hospital rates, Maryland is directly injured by any increase to the uncompensated care rate that
will occur if the uninsured population in Maryland increases.” Am. Compl. ¶ 48.
In addition, the Amended Complaint explains the many ways in which Maryland would be
forced to review and revise its own regulation of state insurance and healthcare markets if the ACA
were left unenforced by the federal government in whole or in part. See Am. Compl. ¶¶ 43-44,
51. For example, pursuant to a waiver from the Centers for Medicare and Medicaid, Maryland is
in the process of implementing a state-based reinsurance program to mitigate the impact of highrisk individuals on rates in the individual market. That program assesses fees on insurers based
on a detailed (and expensive) study that assumed the continuing enforcement of the ACA. If the
Defendants refused to enforce guaranteed issue, community rating, and the prohibition on preexisting condition exclusion provisions, the viability of the program would be undermined, and
additional resources would need to be expended to achieve the program’s goals. See id. ¶ 50.
b. It is no answer that the State can avoid these injuries by enforcing the ACA itself, or by
enacting similar protections under state law.4 For one thing, the State can regulate only those

3

See NFIB, 567 U.S. at 538 (“The Act aims to increase the number of Americans covered
by health insurance and decrease the cost of health care.”); see id. at 592 (Ginsburg, J., concurring
in part, concurring in the judgment in part, and dissenting in part) (“In 2009, approximately 50
million people were uninsured, either by choice or, more likely, because they could not afford
private insurance and did not qualify for government aid.”) (citing Carmen DeNavas-Walt,
Bernadette D. Proctor & Jessica C. Smith, Dep’t of Commerce, U.S. Census Bureau, Income,
Poverty, and Health Insurance Coverage in the United States: 2009, at 23 tbl.8 (Sept. 2010)).
4

Under the ACA, a State may elect to enforce the Act’s insurance market reform
provisions, subject to being replaced by the Department of Health and Human Services, if the
Department determines the State is failing to adequately enforce the law. See 42 U.S.C. §§ 300gg22(a), 300gg-61(a). If the State does not take on this responsibility, it falls upon the Department.
Id.; see also Ctrs. for Medicare & Medicaid Servs., Compliance and Enforcement,
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insurers operating within its jurisdiction. And as the Amended Complaint explains, were Maryland
to enforce the pre-existing condition requirements against Maryland insurers while other states
and the federal government refused to impose the same requirements elsewhere, insurers may well
simply stop doing business in Maryland. Am. Compl. ¶ 49. That is what happened in the 1990s
when other states attempted to go it alone, as Defendants themselves have emphasized in the Texas
litigation. See Federal Defs.’ Mem. in Resp. to Pls.’ Appl. for Prelim. Inj. at 14-15, Texas v. United
States, No. 18-cv-167 (N.D. Tex. June 7, 2018) (ECF 92).
In addition, if Maryland were to enforce the ACA’s protections, but nearby states (like
West Virginia, which is a party to the ACA litigation in Texas) did not, there is a very real
“possibility that Maryland could see an influx of high-risk individuals from states with fewer statebased protections,” increasing administrative and other costs for the State’s waiver-based
reinsurance program. Am. Compl. ¶ 50.
Maryland thus cannot avoid injury on its own; it will suffer harm unless Defendants require
compliance with the ACA’s pre-existing condition provisions nationally.5

https://www.cms.gov/cciio/programs-and-initiatives/health-insurance-marketreforms/compliance.html (last visited Dec. 2, 2018).
5

For the same reasons, Maryland cannot avoid injury by enacting its own state law versions
of the ACA’s protections. In addition, federal law prevents any state regulation of self-insured
plans, which cover the majority of commercially insured lives in Maryland. See Am. Compl. ¶ 48;
29 U.S.C. § 1144(a); Md. Ins. Admin., 2017 Report on the Number of Insured and Self-Insured
Lives tbl.3 (Dec. 1, 2017), https://insurance.maryland.gov/Consumer/Appeals%20and%
20Grievances%20Reports/2017-Report-on-the-Number-of-Insured-and-Self-Insured-LivesMSAR7797.pdf (more than fifty percent of insured persons in State covered by group self-insured
plan).
In addition, the Administration has not said whether it would continue to permit a State
like Maryland to continue its ACA enforcement role if the State tried to enforce provisions the
Administration has decided are unconstitutional or unenforceable.

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In any event, “the possibility that a plaintiff could avoid injury by incurring other costs
does not negate standing.” Texas v. United States, 809 F.3d at 156-57; see also, e.g., Wyoming v.
Oklahoma, 502 U.S. at 447-48 (State’s financial injury created standing even though State could
avoid injury by altering its laws). Under the ACA, Maryland is not compelled to enforce the
statute, but can leave that job to the federal government. See 42 U.S.C. §§ 300gg-22(a), 300gg61(a). Defendants’ non-enforcement decision would deprive the State of that right, putting
Maryland to the coercive choice of either taking on the obligation (and expense) of enforcing
federal law (something the federal government can never force a state to do, see, e.g., Printz v.
United States, 521 U.S. 898, 935 (1997)) or depriving its citizens of the benefits federal law validly
bestows on them. Being put to that choice, and forced to accept the injury resulting from either
decision, is itself a cognizable injury-in-fact. See, e.g., Thomas v. Union Carbide Agric. Prods.
Co., 473 U.S. 568, 582 (1985) (holding that “being forced to choose between” incurring costs and
abandoning legal rights constitutes an injury-in-fact); Texas v. United States, 809 F.3d at 153
(federal action “imposing substantial pressure on [States] to change their laws” gives rise to an
injury that confers standing). This is so regardless of Maryland’s current choice to enforce the
statute with the knowledge it could change tacks if its own circumstances were to change.
2.

The Amended Complaint Alleges Injuries to the State’s Quasi-Sovereign
Interests.

The Amended Complaint also establishes so-called “parens patriae” standing based on
injury to Maryland’s quasi-sovereign interests. See Alfred L. Snapp & Son, Inc., 458 U.S. at 607.
a. Maryland has a quasi-sovereign interest “in the health and well-being—both physical
and economic—of its residents in general.” Alfred L. Snapp & Son, Inc., 458 U.S. at 607. That
interest is indisputably injured by Defendants’ threatened conduct. As noted, Congress enacted
the provisions regarding pre-existing conditions precisely because it recognized that without them,
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many cannot obtain or afford health insurance. Moreover, Congress found that lack of insurance
has substantial negative health and economic effects for the uninsured and the population more
broadly. See 42 U.S.C. § 18091(2)(E) (“The economy loses up to $207,000,000,000 a year
because of the poorer health and shorter lifespan of the uninsured.”); id. § 18091(2)(F)-(G) (lack
of insurance results in the cost of uncompensated care being passed on to families with insurance
and is a leading cause of personal bankruptcies). Defendants cannot, and do not, deny any of this.
b. In addition, “[d]istinct from but related to the general well-being of its residents, the
State has an interest in securing observance of the terms under which it participates in the federal
system.” Alfred L. Snapp & Son, Inc., 458 U.S. at 607-08. “In the context of parens patriae
actions, this means ensuring that the State and its residents are not excluded from the benefits that
are to flow from participation in the federal system.” Id. at 608. States thus have standing to seek
enforcement of “federal statutes creating benefits or alleviating hardships” for the State’s residents.
Id. (giving examples of enforcement of federal antitrust laws and Natural Gas Act, 15 U.S.C.
§§ 717-717z); see also id. at 609-10 (approving parens patriae standing to enforce federal statute
governing employment of foreign workers). This includes, particularly, federal statutes “securing
residents from the harmful effects of discrimination.”

Id. at 609; see also id. (expressing no

“doubt that a State could seek, in the federal courts, to protect its residents from [ethnic]
discrimination to the extent that it violates federal law”). Here, Maryland independently has
standing to ensure that its residents are not denied the substantial benefits the ACA affords them,
including the right to secure insurance free from discrimination based on disability or other preexisting conditions.
Again, the fact that Maryland has the option to play an enforcement role under the ACA
does not defeat its standing. To the contrary, the fact that a State “participates directly in the

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operation of the federal . . . scheme makes even more compelling its parens patriae interest in
assuring that the scheme operates to the full benefit of its residents.” Alfred L. Snapp & Son, Inc.,
458 U.S. at 610.
c. The other requirements of parens patriae standing are also easily met in this case.
Maryland is not acting as merely “a nominal party” on behalf of an “identifiable group of
individual residents,” but rather is asserting the rights and interests of a “substantial segment of its
population” affected by Defendants’ conduct. Alfred L. Snapp & Son, Inc., 458 U.S. at 607.
Moreover, although States may not bring a parens patriae action against the federal government
seeking to prevent enforcement of federal law, 6 such actions are available to compel federal
agencies and officers to abide by federal law. See Massachusetts v. EPA, 549 U.S. 497, 519-20 &
n.17 (2007); District of Columbia v. Trump, 291 F. Supp. 3d at 747 (explaining distinction); see
also Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2664 n.10
(2015); Aziz v. Trump, 231 F. Supp. 3d 23, 31 (E.D. Va. 2017); Texas v. United States, 86 F. Supp.
3d 591, 625-27 (S.D. Tex.), aff’d, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided court,
136 S. Ct. 2271 (2016).7

6

See Massachusetts v. Mellon, 262 U.S. 447, 485 (1923); Virginia v. Sebelius, 656 F.3d
253, 268-69 (4th Cir. 2011).
7

Denying States parens patriae standing to sue the federal government on behalf of their
citizens in federal court would have the inevitable, but surprising, consequence of channeling such
suits into state courts, where they would likely not be removable to federal court because those
courts would lack jurisdiction over the matter. See Richard H. Fallon, Jr., John F. Manning, Daniel
J. Meltzer & David L. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System
435-37 (7th ed. 2015).

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3.

The Amended Complaint Alleges Injuries to the State’s Sovereign Interests.

Injury to a State’s sovereign interests can also provide a basis for standing. Alfred L. Snapp
& Son, Inc., 458 U.S. at 601. Those interests include preventing interference with the state’s
“exercise of sovereign power over individuals and entities within [its] jurisdiction” through its
creation and enforcement of state law.

Id.

Here, Defendants’ actions will interfere with

Maryland’s creation and enforcement of its insurance and healthcare regulatory regime, which is
premised on the continued enforcement of the ACA; it will pressure the State to modify its laws
to account for the gap in ACA enforcement; and in the process, Defendants’ conduct will divert
state resources and attention from the State’s own legislative and regulatory priorities.
The Amended Complaint describes in detail the many steps the State has taken to modify
its insurance and healthcare regulatory regime in reliance on the continued enforcement of the
ACA, including its provisions on pre-existing conditions. See Am. Compl. ¶¶ 43, 45-48, 50-52.
The likely increase in the number of uninsured and underinsured and the concomitant increase in
the cost of uncompensated care will require the State to reassess multiple aspects of that regulatory
regime.
For example, the Amended Complaint explains that absent enforceable ACA protections,
Maryland will have to consider “re-establishing needed consumer protections in the Maryland
insurance market.” Am. Compl. ¶ 44. The Amended Complaint explains that Maryland law
previously contained a “provision that required group insurance policies to allow insured
individuals whose coverage is terminated to obtain from the insurer an individual policy.” Id. ¶ 52.
That law was repealed as unnecessary when the ACA promised that such individuals would have
the right to obtain substitute coverage through the health exchanges, with no risk of denial or

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increased cost due to pre-existing conditions. Id. Absent those protections, the prior law (or some
other measure) may need to be reinstated. Id.
As noted, Defendants’ actions may also require the State to reinstitute its former high-risk
pool insurance program for medically uninsurable individuals. Am. Compl. ¶ 51. And the
inevitable increase in uncompensated care costs will also require the State to reassess its
uncompensated care pool arrangements, as well as the assessments charged pool participants. See
id. ¶ 48.
These sovereign interests warrant special solicitude in the standing analysis. “When a State
enters the Union, it surrenders certain sovereign prerogatives.” Massachusetts v. EPA, 549 U.S.
at 519. This includes the State’s ability to completely control the regulation of domestic industries
and define the rights of its residents. As this case illustrates, that state power is subject to
displacement by federal initiatives, sometimes directly (as when federal law preempts state
regulation) but also indirectly, when states are forced to tailor their regulation to the legal and
commercial environment created by federal laws. Having endured this diminution of its sovereign
authority by adapting its laws to the federal ACA, Maryland has an important interest in ensuring
that the federal law is, in fact, enforced so that the State’s adaptations can function as intended. It
is one thing for Congress to force the State to adjust its laws and regulations; it is quite another for
States to be summoned to the task by executive officials attempting to undermine Congress’s work
or laboring under a misconception about a law’s constitutionality.
II.

DEFENDANTS’ CHALLENGES TO MARYLAND’S STANDING ARE MERITLESS.
Defendants nonetheless object that Maryland is simply challenging Defendants’ litigation

position in another case, not anything Defendants themselves will do that will invade the State’s
legally protected interests. Moreover, they say, any injuries Maryland may suffer if the ACA is
no longer fully enforced are too speculative to support standing. Those arguments fail.
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A. Maryland’s Injuries Arise from Defendants’ Impending Conduct, Not from
Any Litigation Position or the Future Decision of Another Court.
Much of the motion to dismiss is premised on a mischaracterization of the Amended
Complaint as asserting standing based on injuries that will arise if, and only if, the U.S. District
Court for the Northern District of Texas enjoins Defendants from enforcing some or all of the
ACA. On that premise, Defendants claim that Maryland’s dispute is not with anything Defendants
themselves are about to do, but rather with Defendants’ “litigation position” or other
“‘pronouncements’ concerning their belief about the ACA’s constitutionality.” Defs.’ Mem. in
Supp. of Mot. Dismiss, ECF 11-1 at 1, 15 (Nov. 16, 2018). The real source of any harm, they say,
will be the Texas court’s decision, about which the parties can only speculate, and for which
Defendants cannot be held responsible. Id. at 1-2, 10, 11. As a consequence, they argue, Maryland
is simply asking for an advisory opinion. Id. at 1.
But as explained above, that the premises of this argument are false. The Amended
Complaint clearly alleges an imminent risk that Defendants will soon refuse to enforce critical
parts of the ACA regardless of what the Texas court ultimately decides.8 The Administration’s
litigation position and pronouncements are simply part of the evidence supporting that claim;
Maryland does not allege that the statements are, themselves, the source of the State’s injury-infact.
Nor does the Amended Complaint challenge any action the District Court for the Northern
District of Texas may take. Again, the Amended Complaint alleges that Defendants’ own legal
views and policy preferences will lead them to suspend enforcement of critical protections in the

8

If the Court believes that the Amended Complaint does not adequately convey this point,
Maryland is prepared to amend the Amended Complaint to make that allegation even more clearly.
See supra at 3.

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ACA regardless of whether or how the Texas court rules before January 1. Any judicial decision
accepting the Government’s position would simply provide welcomed cover.
Finally, were the Texas court to order Defendants to cease enforcement of some or all of
the ACA, that would not affect Maryland’s standing. Defendants’ conduct would still be the
source of Maryland’s injury; the district court order would, at best, provide a basis for Defendants
to attempt to defend their conduct as lawful. But the lawfulness of injury-producing conduct has
nothing to do with a party’s standing to challenge it. See, e.g., White Tail Park, Inc. v. Stroube,
413 F.3d 451, 460-61 (4th Cir. 2005); cf. Martin v. Wilks, 490 U.S. 755, 769 (1989) (white
firefighters permitted to sue their employer to challenge its affirmative action policy even though
the policy was court-ordered).
B.

Maryland Alleges Multiple Ways in Which Defendants’ Conduct Will Invade
the State’s Legally Protected Interests.

Defendants also argue that the Amended Complaint “has not alleged any ‘invasion of a
legally protected interest.’” ECF 11-1 at 8. While no one has a “legal entitlement to the ACA’s
continued validity” if the statute is, in fact, unconstitutional, id. at 9, in deciding whether Maryland
has standing to ask this Court to settle that constitutional question, the Court must “assume that on
the merits the plaintiffs would be successful in their claims,” Cooksey v. Futrell, 721 F.3d 226,
239 (4th Cir. 2013) (internal quotation marks omitted). The question is whether, assuming the
statute is valid, Defendants’ refusal to enforce it will cause an injury to Maryland’s legally
protected interests. As discussed, it surely will, for failing to enforce the ACA would cause injury
to Maryland’s proprietary, pecuniary, quasi-sovereign, and sovereign interests in multiple ways.
C. Maryland’s Injuries Are Not Speculative.
Defendants also argue that the harms alleged in the Amended Complaint are unduly
speculative, relying upon “layer upon layer of conjecture.” ECF 11-1 at 10. Not so.

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1. As already discussed, this argument is based in part on a mischaracterization of the
Amended Complaint as alleging that Defendants will fail to enforce the ACA only if “the ACA
[is] invalidated (in whole or in part) by the federal district court in Texas.” ECF 11-1 at 10.
Moreover, there is nothing speculative in the Amended Complaint’s description of the
consequences of Defendants’ failure to enforce the ACA as written. Contra ECF 11-1 at 10. For
example, Congress enacted the pre-existing conditions provisions because absent compulsive
coverage no economically rational insurer would offer individuals with expensive pre-existing
conditions health insurance on the same terms as provided to others. Particularly given the long
history of insurers doing exactly what one would expect, it is hardly speculative to anticipate that
if that compulsion is removed, insurers will return to their prior practices. See, e.g., District of
Columbia v. Trump, 291 F. Supp. 3d at 744 (standing may be founded on “basic economic logic”).
Moreover, it is hardly speculative to predict the consequences for individuals with pre-existing
conditions – they will newly be at risk of losing coverage, yet continue to have serious medical
needs that will be addressed through uncompensated care, often in emergency rooms, just as
routinely happened before the ACA was enacted. See 42 U.S.C. § 1395dd (prohibiting emergency
rooms from denying service in certain circumstances).9 The cost of uncompensated care will
inevitably be borne in part by the State under its all-payer system. Cf. Clinton v. City of New York,
524 U.S. 417, 431 n.19 (1998) (City had standing by virtue of its state law obligation to reimburse
State for expenses State incurred).

9

Because many, if not most, are in plans not regulated by the State, there is no prospect
that the State could prevent that harm, even if that prospect had any bearing on the standing
question here. See supra n.5.

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Defendants fail to even address a multitude of other harms described in the Amended
Complaint, leaving it to the Court to figure out why, for example, it is speculative for Maryland to
claim that non-enforcement of the ACA’s pre-existing condition provisions will require
reinstituting repealed state protections or restructuring the State’s reinsurance program.10
Moreover, even if they had tried, Defendants could not dispute that the elimination of
federal enforcement of the ACA’s pre-existing condition protections would directly injure
Maryland residents by depriving them of the protection of federal law and, thereby, directly injure
Maryland’s quasi-sovereign interest in ensuring the benefits of those protections for its residents.
See Alfred L. Snapp & Son, Inc., 458 U.S. at 607-09. Nor is it speculative to claim that ceasing
federal enforcement would immediately and directly injure the State by putting it to the coercive
choice of either: (a) having to enforce the law itself (at its own expense), despite its statutory right
to leave enforcement to the federal government or (b) lose the benefits of the law for its citizens
and suffer the expense and distraction of having to reexamine its own existing regulatory regime,
which is premised on continued enforcement of the ACA in full.
2. Defendants suggest that Maryland has no standing because it is challenging the
government’s failure to regulate the conduct of third parties, making the injury to the State unduly
attenuated. See ECF 11-1 at 10-11, 15. While standing to challenge government action (or
inaction) is most easily established when the plaintiff is the ‘object of the [government] action,”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992), others may establish standing to
challenge that conduct as well, so long as they can show that the government action “will affect

10

See Hensley ex rel. North Carolina v. Price, 876 F.3d 573, 580 n.5 (4th Cir. 2017)
(Judges “are not like pigs, hunting for truffles buried in the briefs,” nor is it the court’s “job to
wade through the record and make arguments for either party.”) (internal quotation marks omitted),
cert. denied, 138 S. Ct. 1595 (2018).

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them,” Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009); see also, e.g., Texas v. United
States, 809 F.3d at 154 (rejecting claim that there is “a presumption that a plaintiff lacks standing
to challenge decisions to confer benefits on, or not to prosecute, a third party”).
As noted, in Texas v. United States, the Fifth Circuit held that Texas had standing to
challenge the federal government’s non-enforcement of federal immigration laws against thirdparties because that policy imposed economic costs on the State. 809 F.3d at 154-57. In Monsanto
Co. v. Geertson Seed Farms, the Supreme Court similarly held that a group of conventional alfalfa
growers had standing to challenge a federal agency’s decision to deregulate a variety of genetically
engineered alfalfa. 561 U.S. 139, 144, 155 (2010). The Court recognized that although the
plaintiffs were not subject to the regulation (or deregulation), the Government’s refusal to regulate
the third-parties producing genetically engineered plants injured the plaintiffs and, thereby
afforded them standing. Id. The Court explained that it was enough that the harms were “readily
attributable to [the agency’s] deregulation decision” and likely to be remedied by a favorable
decision. Id.; see also, e.g., Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 403 (1987) (security broker
association had standing to challenge agency’s regulation of national banks). This case is no
different.
III.

THE AMENDED COMPLAINT STATES A CLAIM.
Defendants also assert that the Amended Complaint fails to state a claim because (a) it

“relies exclusively on the Declaratory Judgment Act,” which provides only a remedy, not a cause
of action, ECF 11-1 at 12; and (b) the Amended Complaint does not adequately allege “an actual
controversy” as required by the Act, id. at 13. Neither is correct.
A. The Amended Complaint Alleges a Cause of Action.
The Amended Complaint alleges an independent cause of action for which the Declaratory
Judgment Act, 28 U.S.C. §§ 2201-2202, may provide supplementary relief. The Supreme Court
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has recognized for generations that by granting federal courts jurisdiction to hear claims in equity,
Congress afforded an implicit cause of action to seek equitable relief against federal officials for
their violations of federal law. See, e.g., Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct.
1378, 1384 (2015) (discussing “long history of judicial review of illegal executive action, tracing
back to England,” leading to American tradition of implied right of action for equitable relief
against “violations of federal law by federal officials,” and citing, e.g., Am. Sch. of Magnetic
Healing v. McAnnulty, 187 U.S. 94, 110 (1902) (suit to enjoin Postmaster General from
withholding mail in violation of federal statute)).11
Although the Amended Complaint does not specifically identify this traditional cause of
action, but see Am. Compl. ¶ 19 (citing the jurisdictional grant from which it is derived), the
federal rules do not require plaintiffs to expressly invoke the legal source of their cause of action
or plead legal theories. See Johnson v. City of Shelby, 135 S. Ct. 346, 346 (2014) (per curiam)
(reversing dismissal of civil rights suit for “failure to invoke 42 U.S.C. § 1983 in [the] complaint”);
id. at 347 (“Having informed the city of the factual basis for their complaint, [plaintiffs] were
required to do no more to stave off threshold dismissal for want of an adequate statement of their
claim.”).

11

Congress may expressly or impliedly limit this traditional cause of action in particular
statutes. Armstrong, 135 S. Ct. at 1385 (finding congressional intent to preclude equitable cause
of action where statute provided alternative enforcement mechanism of withholding funds from
states that violated the Act and where the relevant statutory text was “judicially unadministrable”).
But there is nothing in the ACA that shows Congress intended to foreclose equitable relief from a
federal officer’s refusal to enforce the statute based on a mistaken view of the Act’s
constitutionality. The statute itself provides no alternative remedy to that problem. Moreover,
Defendants’ impending enforcement failure arises from their misguided assessment of the statute’s
constitutionality, a question the courts are well suited to resolve on the basis of entirely
administrable constitutional principles. Accordingly, Maryland is not asking the courts to secondguess the Administration’s prosecutorial discretion with respect to particular cases or otherwise
asking the Court to address any question reserved to the Executive.

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If necessary, Maryland is prepared to amend the complaint to make the cause of action
express.
B.

The Amended Complaint Alleges an “Actual Controversy.”

Defendants acknowledge that their assertion that the Amended Complaint fails to satisfy
the Declaratory Judgment Act’s “actual controversy” requirement largely repeats the standing
arguments addressed above. ECF 11-1 at 13. They nonetheless make the meritless assertion that
declaratory relief is limited to two common categories of actual controversies. See id. at 14. But
the Supreme Court has held that the “phrase ‘case of actual controversy’ in the Act refers to the
type of ‘Cases’ and ‘Controversies’ that are justiciable under Article III,” MedImmune, Inc. v.
Genetech, Inc., 549 U.S. 118, 127 (2007) (citation omitted), not to some subset of such
controversies.12
In any event, Defendants’ invocation of cases awarding declaratory relief in the face of a
“‘genuine threat of [government] enforcement’” of a federal law, ECF 11-1 at 14 (quoting
MedImmune, 549 U.S. at 129) (alteration in original), strongly reinforces Maryland’s claims here.
Defendants cannot contend that the Act applies to prevent injuries arising from the Government’s
enforcement of a law, but not to prevent injuries arising from the Government’s non-enforcement
of a federal statute. And as discussed, the Amended Complaint compellingly alleges a genuine
threat that Defendants will soon end enforcement of a federal law, resulting in serious injury.

12

Even if the Declaratory Judgment Act provided a stricter standard than Article III, failure
to satisfy that standard would have no bearing on Maryland’s separate request for an injunction.
See Am. Compl., Prayer for Relief (b); Armstrong, 135 S. Ct. at 1384 (recognizing traditional
cause of action at equity for injunction against federal officer’s violation of federal law).

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CONCLUSION
For the foregoing reasons, the Court should deny Defendants’ motion to dismiss. In the
alternative, the Court should grant Maryland leave to amend its amended complaint for the reasons
set forth above and in the conditional motion for leave to amend filed contemporaneously with this
brief.

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Dated: December 3, 2018

Respectfully submitted,
THE STATE OF MARYLAND
By: /s/ Tejinder Singh
BRIAN E. FROSH
Attorney General of Maryland
JULIA DOYLE BERNHARDT (BAR NO. 25300)
jbernhardt@oag.state.md.us
STEVEN M. SULLIVAN (BAR NO. 24930)
ssullivan@oag.state.md.us
SARAH W. RICE (BAR NO. 29113)
srice@oag.state.md.us
KIMBERLY S. CAMMARATA (BAR NO. 11997)
kcammarata@oag.state.md.us
Assistant Attorneys General
200 St. Paul Place
Baltimore, Maryland 21202
T: (410) 576-6325
F: (410) 576-6955
THOMAS C. GOLDSTEIN (BAR NO. 13618)
TGoldstein@goldsteinrussell.com
KEVIN K. RUSSELL, admission pending
KRussell@goldsteinrussell.com
SARAH E. HARRINGTON, admission pending
Sharrington@golsteinrussell.com
TEJINDER SINGH (BAR NO. 17888)
TSingh@goldsteinrussell.com
DANIEL WOOFTER (BAR NO. 20474)
dhwoofter@goldsteinrussell.com
Goldstein & Russell, P.C.
7475 Wisconsin Ave.
Suite 850
Bethesda, MD 20814
(202) 362-0637 (direct)
(800) 574-2033 (fax)
Attorneys for the State of Maryland

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CERTIFICATE OF SERVICE
The undersigned certifies that Plaintiff’s Opposition to the Motion to Dismiss was served
on all counsel of record via the Court’s CM/ECF system on this 3d day of December, 2018.
/s/ Tejinder Singh
Tejinder Singh