Case: 1:10-cv-00101-RWS Doc.

#: 35 Filed: 04/06/11 Page: 1 of 3 PageID #: 505

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION

PETER D. KINDER, et al., )

)
Plaintiffs )
)
v. ) Civil Action No. 1:10-cv-00101-RWS
)
TIMOTHY F. GEITHNER, et al. )
)
Defendants )
____________________________________)

DEFENDANTS’ MOTION FOR LEAVE TO FILE SUPPLEMENTAL

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

This matter is pending before the Court on defendants’ fully briefed motion to

dismiss. Defendants respectfully move for leave to file a supplemental

memorandum.

In support of Count VII of their Amended Complaint, the three plaintiffs who

are Medicare Advantage enrollees argue that 42 U.S.C. § 1395w-23(o), by increasing

a “bonus” paid for Medicare Advantage plans in “qualifying counties,” uncon-

stitutionally discriminates against Medicare Advantage enrollees who do not live in

qualifying counties. Those plaintiffs anticipated that the counties in which they

reside would not be determined to be qualifying counties.

At the time plaintiffs filed their brief (Jan. 25, 2011), and at the time

defendants filed their reply brief (Feb. 25, 2011), no determination of which counties

are qualifying counties had been made.

Case: 1:10-cv-00101-RWS Doc. #: 35 Filed: 04/06/11 Page: 2 of 3 PageID #: 506

The proposed supplemental memorandum, a copy of which is tendered as an

exhibit hereto, would advise the Court that a determination of which counties are

qualifying counties was published on April 4, 2011; advise the Court whether the

Medicare Advantage plaintiffs reside in qualifying counties; and briefly (in one

sentence) address the effect of this determination on their standing.

Respectfully submitted,

TONY WEST
Assistant Attorney General

RICHARD G. CALLAHAN
United States Attorney

SHEILA M. LIEBER
Deputy Branch Director

/s/ Brian G. Kennedy

BRIAN G. KENNEDY (D.C. Bar No. 228726)
United States Department of Justice
Civil Division
Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, D.C. 20530
Tel.: (202) 514-3357 Fax: (202) 616-8470
Email: Brian.Kennedy@usdoj.gov

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Case: 1:10-cv-00101-RWS Doc. #: 35 Filed: 04/06/11 Page: 3 of 3 PageID #: 507

CERTIFICATE OF SERVICE

I hereby certify that on April 6, 2011, the foregoing was filed electronically

with the Clerk of Court to be served by operation of the Court’s electronic filing

system upon the following:

Mark F. (“Thor”) Hearne, II

Lindsay S.C. Brinton
1050 Connecticut Avenue, NW
Washington, DC 20036-5339
Phone: (202) 857-6000
Fax: (202) 857-6395
thornet@ix.netcom.com
brinton.lindsay@arentfox.com

Robert C. O’Brien
Steven A. Haskins
555 West Fifth Street, 48th Floor
Los Angeles, CA 90013
obrien.robert@arentfox.com
haskins.steven@arentfox.com

Attorneys for Plaintiffs

/s/ Brian G. Kennedy

Brian G. Kennedy

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