Debunking Weiner’s ‘En Bunk’ (with update)

August 8

(AP Photo/Jon Elswick, File)

Over at Balkinization, former associate deputy attorney general Rob Weiner has posted a lengthy response to my post questioning whether Halbig v. Burwell is en banc-worthy, based on the D.C. Circuit’s historical practice. Weiner’s post contains quite a bit of table pounding, but remarkably little substance.  In 1,100 words, Weiner hurls lots of charges, misrepresents the basic claims of the Halbig plaintiffs and Halbig majority, and yet never responds directly to my basic point: that the D.C. Circuit rarely grants en banc review to resolve a circuit split.

The closest Weiner comes to addressing this point is when he says that “perhaps the most common reason for en banc review” is “that the panel opinion creates a split in the Circuits.”  Yet Weiner never proffers evidence in support of this claim. Why? Perhaps because it’s not true — at least not in the D.C. Circuit.

Like most others who have responded to my post (and to Adam White’s op-ed), Weiner never addresses the historical practice of the D.C. Circuit.  That failure speaks volumes about the strength of his arguments.  Weiner also engages in some sleight of hand when he writes, “In making its ruling, the D.C. Circuit panel simultaneously issued an order on its own initiative making clear that its judgment was not effective until the full Court of Appeals decided whether to reconsider the case.” Wiener speculates that “the panel perhaps recognized that the other judges on the Court might view the decision as out of step with the Circuit’s precedents.”

Really? As I’m sure any D.C. lawyer of Weiner’s accomplishments should know, this is standard practice under FRAP 41 and the D.C. Circuit’s own internal procedures. As a general rule, the court’s mandate does not issue until after the deadline for filing a petition for rehearing has passed, and the filing of such a petition (or a petition for certiorari with the Supreme Court) will further stay issuance of the mandate until the resolution of such proceedings. So that the court did what it almost always does suggests nothing at all about the merits, let alone the en-banc-worthiness, of this case.

Recall that the central claim of my post was not that the D.C. Circuit lacks the authority or a sufficient rationale to take Halbig en banc. I expressly noted that FRAP 35 contemplates the existence of a circuit split as a potential reason for granting such a rehearing.  Moreover, the judges sitting on the D.C. Circuit today are free to adopt a different standard for rehearing than did their predecessors.  My point was that the D.C. Circuit’s historical practice (for the past 20 years or so) has been to be exceedingly stingy about granting en banc rehearing — more stingy than the Supreme Court is with cert grants — and that the existence of a circuit split appears not to have been a major motivating factor for en banc review, particularly for cases lacking a cross-cutting legal principle that is likely to affect a range of future cases.  (Note also that the Circuit’s own handbook (p. 57) mentions the need for intra-circuit uniformity, but not inter-circuit uniformity, as a reason for granting en banc review.)  For this reason, quite a few major cases with substantial policy and other impacts were not deemed en banc worthy by a majority of the Court, including quite a few that were then heard by the Supreme Court. (See, e.g., two cases from last term: EME Homer City and UARG v. EPA.)

There are a range of substantive counterarguments Weiner could have made.  He could have noted that for much of the past 15 years the court was smaller, making en banc review more difficult, and that this should inform how we consider the historical practice.  He could have suggested that the lack of en banc review in the past was due to the Court’s alleged conservative tilt — a tilt that no longer exists (though this would have undermined his charge that the Halbig plaintiffs are trying to politicize the courts).  He could have noted that many significant cases in which en banc review was denied could not have produced circuit splits given that the D.C. Circuit has exclusive jurisdiction over some sorts of claims.  He could have also pointed to the practice of (some) other circuits and suggested that the D.C. Circuit is too stingy in granting en banc review, and that it’s historical practice is in need of revision.

Yet he did none of those things.  Instead, like many other Halbig critics (including some others at Balkinization), he turned the dudgeon up to 11, as if outrage and indignation were enough to resolve a serious legal question. Alas, that’s what much of the debate over Halbig has become.

UPDATE: Weiner replies here.  I’ll let our exchange — and his utter failure to address the D.C. Circuit’s historical practice — speak for itself with one exception.

In his reply, he claims (again) that orders staying the effect of the mandate “are not standard practice,” and that the issuance of such an order in Halbig creates “the plausible inference that the panel majority anticipated the likely demise of its aberrant decision.”  I recognize that he’s the high-powered D.C. practitioner and I’m just an academic, but I still maintain Weiner is engaged in sleight of hand here.  So I quickly checked the docket for various D.C. Circuit cases   As we know, in Halbig, the clerk’s office issued an order withholding the issuance of the mandate.  Yet the same was true in EME Homer and the case that became UARG v. EPA – two important, high-profile cases in which, as I discussed in my posts, en banc rehearing petitions were denied and cert was granted.  What about more run-of-the-mill cases? I pulled the docket for a case involving a government agency decided the week before HalbigSEC v. SIPC.  In this case, an ideologically diverse panel rejected the government’s arguments.  And, lo and behold, the clerk issued an order withholding the issuance of the mandate here too.  Perusal of the docket for other recent decisions finds much the same thing.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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