UPDATED: Faster health care appeal asked

By Lyle Denniston
on Mar 11, 2011 at 1:12 pm

UPDATED 9:31 p.m.  The Eleventh Circuit Court agreed Friday to put the health care case on a fast track, and issued a briefing schedule, but said it would keep open for now the question of whether the appeal will be heard initially by the full Court or by a three-judge panel.  The Court said the briefing schedule it had laid out would not be affected by what it decides for or against en banc review.  The briefing will begin April 4 and will be completed on May 25.  That schedule could still allow for an en banc oral argument on June 6, as the challengers requested.

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In a move to speed the constitutional dispute over health care on to the Supreme Court sooner, challengers to the new federal law on Thursday night asked the Eleventh Circuit Court to put the case promptly before the ten-judge, en banc  Circuit Court, and to do so at a hearing in June.  If the Circuit Court agrees, that could make this case — involving 26 states and leading to a judge’s decision to nullify the entire new law — the first one likely to be heard by the Supreme Court.

Earlier in the week, the Obama Administration sought expedited review in the Eleventh Circuit of Senior U.S. District Judge Roger Vinson’s Jan. 31 decision nullifying all of the law.  But it did not ask for opening review by the full Court, thus putting the case initially before a three-judge panel. 

The challengers filed a petition for en banc review, noting that the Circuit Court “fortuitously” has an en banc sitting set for June 6, and they filed a different briefing schedule than the one the government had proposed.  Under this proposed alternative schedule, all briefing would be completed by May 30, a week before a June 6 oral argument.

In addition to these scheduling proposals, the 26 states and others joining in their challenge filed a formal appeal of their own from the Pensacola judge’s ruling, indicating they will challenge his rejection of several of their challenges to specific parts of the new law.   Although the judge did find the entire law unenforceable, he had turned aside the states’ objections to several parts of the law that they argued would impose on them heavy new health care and spending burdens.  That cross-appeal will expand the scope of the Circuit Court’s review.

Noting that a common feature of all of the pending cases on the constitutionality of the new law is that they are being pursued on expedited schedules in the federal appeals courts, the Florida case challengers said initial review by the full Circuit Court is essential to bring about a prompt but thorough decision. 

Calling the case “exceptional and time sensitive,” the challengers said it is vital that appellate review be “by all members of this Court.”  It added: “If the United States Supreme Court decides to grant certiorari, it will no doubt benefit institutionally from thorough appellate review on the matter.  Where an appeal is expedited for resolution — and time is available for en  banc hearing, as it appears fortuitously to be in this case — the Supreme Court would benefit from the full court’s views.”

While initial review by a three-judge panel might be sufficient under ordinary circumstance where “timing is not so critical and the issues less compelling,” the challengers argued,  the ordinary process of panel review followed by requests for en banc review “is likely to prove unworkable or unpredictable given the urgency and importance of resolving the issues presented.”

If, however, the Circuit Court opts not to take the case en banc at the outset, or if oral argument could not occur before the full Court on June 6, the challengers said, then the case should go through the three-judge panel process “because the goal of expedited review would not be met.”

In their filing on the briefing schedule, the challengers suggested that the federal government’s opening brief be due on April 18, the challengers answer to that brief and their own initial brief on their cross-appeal be due on May 9, and the government’s reply on its appeal and its response to the cross=appeal be due on May 23.   If possible, the filing added, the challengers would like the chance to file a reply brief on their cross-appeal on May 30.

The governent’s appeal in the case is focused on Judge Vinson’s decision to strike down the new law’s requirement that virtually all Americans obtain health insurance by 2014, and his separate ruling that none of the remainder of the law can function without that mandate, so none of it is valid.  (The judge has put his decision on hold, however, as the appeal goes forward, so the government may continue enforcing the law in the meantime.)

The cross-appeal by the challengers, it appears, will focus on the judge’s decisions that went against the states.  Those include a ruling that the law does not unconstitutionallly force the states to take on added burdens under the Medicaid program of health care for the poor, does not unconstitutionally compel the states to set up health insurance “exchanges,” and does not unconstitutionally mandate that states provide health insurance to all state workers whose workweek is longer than 30 hours.

When the federal government proposed its briefing schedule for the case, it said that its lawyers might need added time for their final filing if the challengers did bring up the issues on which they had lost before Judge Vinson.

Whether the Eleventh Circuit opts to take the case en banc is solely within its discretion.  That court has said that such full court review is to be reserved for cases of “special importance” to establish the law that binds all courts within the Circuit.  It would take the votes of a majority of the ten active judges to grant such review. 

Although the state of Virginia has a constitutional case on the new law already pending at the Supreme Court (Virginia v. Sebelius, docket 10-1014), seeking review by the Justices before its case is decided by the Fourth Circuit Court, that plea is considered to be a long shot.  The federal government is expected to oppose that maneuver.  The Virginia case in the Fourth Circuit is scheduled for oral argument in that Richmond, Va., court on May 10 (see post below)>