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En banc denied on health care

The Eleventh Circuit Court refused on Thursday to put before the full ten-judge Court the broad challenge by a group of states to the new federal health care law, but did grant a fairly prompt hearing before a three-judge panel.  In a two-page order, the Court did not reveal the vote on en banc review, saying only that the request did not get a majority after several judges had asked for a poll on it.

The hearing will be held on Wednesday, June 8, in Atlanta, the Court said, with each side having one hour for oral argument.  The judges who will be on the panel will be revealed no earlier than two weeks before that date, it said.

The challengers on March 10 had requested initial en banc review of the case of Florida, et al., v. U.S. Health and Human Services Department, et al., (docket 11-11021) and for a hearing June 6.  It would have taken the votes of at least six members of the ten regular judges to grant that request.

The briefing in the case will start next Monday and is to be completed by May 25.

The denial of en banc review by the Eleventh Circuit makes it more likely that the first of the cases now pending in six federal appeals courts to reach the Supreme Court will be the two that are pending in the Fourth Circuit Court in Richmond, Va. — a court that is known for moving quite rapidly.  Briefing has begun in those cases, involving appeals by the federal government in one case and by Liberty University in another, growing out of differing rulings by two federal judges in Virginia.

The state of Virginia has pending in the Supreme Court a plea (10-1014) for the Justices to take on the issue without waiting for the Fourth Circuit to rule.  That plea is scheduled to be considered by the Justices at their Conference set for April 15.  A decision for or against that request could be released as early as Monday, April 18.   If the Court does accept the case, that would halt the proceedings in the Fourth Circuit.

If the Court turns down that request, there appears to be almost no chance that the Supreme Court would reach the dispute over the law until its next Term, starting Oct. 3.

In the Eleventh Circuit case, a federal judge in Pensacola, Fla., struck down the entire new law, and blocked enforcement of it, but lifted that order when the federal government pursued its appeal to the Circuit Court.

Recommended Citation: Lyle Denniston, En banc denied on health care, SCOTUSblog (Mar. 31, 2011, 12:57 PM),