For the second time this week, the Obama Administration has urged a court not to adopt an unusual schedule for ruling on the constitutionality of the new federal health care law.  In a brief filed Thursday evening at the Eleventh Circuit Court, the Administration resisted a plea by 26 states and others that their appeal there be heard by the full en banc Court, not a three-judge panel.

On Monday, the Administration had rged the Supreme Court not to grant review of an appeal by Virginia, ahead of review of that case by the Fourth Circuit Court.

Among the arguments that government lawyers are making on the scheduling issue is that appeals courts where appeals are pending are already moving on an expedited basis, so there is no need for adopting even faster or extraordinary modes of review.  The Fourth Circuit, Sixth Circuit, Eleventh Circuit and, as of Thursday, the D.C. Circuit have all put health care appeals on abbreviated briefing and argument schedules, before three-judge panels.

The Eleventh Circuit case (Florida, et al., v. HHS, docket 11-11021) involves the most sweeping decision by any federal court on the new law: a ruling that struck it down in all of its 450 parts.  The challengers formally asked that it be heard initially by the en banc Court.  While the filing Thursday by Justice Department lawyers said they would do whatever the Circuit Court opted for the case, they nevertheless made a series of arguments why that step would not be necessary or useful.

“While this case raises important issues,” the new brief said, “the importance of the issues argues for considering them in a calm, orderly and deliberative fashion rather than attempting to resolve what is a sensitive case in a procedurally atypical way.”

So far, the D.C. Circuit is the only federal appeals court to explicitly deny en banc review.  It did so in the case of Seven-Sky v. Holder (docket 11-5047), which involves a federal judge’s ruling upholding the new law’s mandate that virtually every American obtain health insurance by 2014.   In a separate order, however, that Circuit Court adopted an expedited briefing schedule, but refused to schedule an oral argument during the three summer months; instead, a hearing will be held in September.

Hearings in other Circuit Courts are scheduled in May or June.  Thus, one or more of these cases is likely to produce a decision in time for an appeal to the Supreme Court in the new Term starting next Oct. 3.

Posted in Cases in the Pipeline, Health Care

Recommended Citation: Lyle Denniston, U.S. resists fast track on health case, SCOTUSblog (Mar. 17, 2011, 9:29 PM),