Both the U.S. Senate and House of Representatives certified that they had only 45 employees each in order to sign up for the District of Columbia’s Small Business Exchange. But 12,359 – or 86 percent of the exchange’s enrollees – are members of Congress, congressional staff members, and their spouses and dependents, according to an appeal filed with the D.C. Court of Appeals by Judicial Watch.

The public interest law firm announced Monday that it is appealing the February dismissal of its lawsuit challenging congressional participation in the Obamacare exchange even though the D.C. Exchange Act limits enrollment to small companies with 50 or fewer employees.

“Congress obviously has far more than 50 employees,” Judicial Watch attorney Michael Bekesha pointed out in his opening brief. “It has thousands of employees.”

Congress enrolled in the small business exchange when its previous coverage under the Federal Employee Health Benefits plan was terminated by the Affordable Care Act (ACA) and congressional employees stood to lose thousands of dollars in “employer contributions” if they enrolled in the District’s individual exchange.

According to documents obtained by Judicial Watch through the Freedom of Information Act (FOIA), the U.S. Senate and the U.S. House of Representatives both certified that they “employ 50 or fewer full time equivalent employees.”

In October 2013, the Office of Personnel Management (OPM) issued a final rule that provides an “employer contribution” covering about three-quarters of the premiums of congressional employees enrolled in the small business exchange starting Jan. 1, 2014.

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