With Halbig en banc briefs submitted, now comes the wait

August 19

On Aug. 1, the federal government filed a petition for rehearing en banc in Halbig v. Burwell, in which the U.S. Court of Appeals for the D.C. Circuit held that the PPACA does not authorize the issuance of tax credits for the purchase of health insurance in exchanges established by the federal government (as opposed to those established by states).  On Monday, pursuant to a D.C. Circuit order, the plaintiffs filed their brief in opposition.

Whereas the government argued the court should rehear Halbig because the D.C. Circuit opinion conflicts with that of the Fourth Circuit and  the case presents a question of “exceptional importance,” the plaintiffs argue that  the policy significance of the case actually counsels allowing expeditious resolution of the question by the Supreme Court.  As I noted here (see also here), the court rejected en banc review in Coalition for Responsible Regulation v. EPA.  In explaining this decision, then-Chief Judge Sentelle (joined by Judges Rogers and Tatel) wrote:

To be sure, the stakes here are high. The underlying policy questions and the outcome of this case are undoubtedly matters of exceptional importance. The legal issues presented, however, are straightforward, requiring no more than the application of clear statutes and binding Supreme Court precedent. There is no cause for en banc review.

The Supreme Court later accepted certiorari in CRR v. EPA (as UARG v. EPA).

While the D.C. Circuit rarely accepts petition for en banc rehearing to resolve a circuit split, it is free to do so.  It is also free to take its time in making its decision. SCOTUSBlog has more here.

Now that the briefs have been submitted, the active judges on the court will consider the question and cast their votes — but they can take their time. If a majority of the court’s judges want to rehear the case, we may hear rather quickly, but unless and until there are enough votes in favor of en banc review, the case may sit.  A judge who favors en banc rehearing may choose to write a decision dissenting from the denial of en banc, and this may take some time (particularly if a judge supporting the denial wishes to respond). The order denying en banc review in CRR v. EPA was issued six months after the original panel opinion, likely because there were two dissents from the denial of en banc review and one opinion concurring.

What this means is that if the court is going to grant rehearing it is likely to do so quickly.  As a general rule, the longer it takes, the more likely it is that the petition will be denied.  But this is only a general rule. The drafting and circulation of an opinion favoring en banc rehearing may encourage one or more judges to reconsider their position and support en banc review.  All that said, if the court is gong to rehear the case, I would expect an order to this effect within the next week or so.  Now the waiting game begins.

 

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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