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UPDATE: U.S. seeks fast appeal on health care

UPDATE Wednesday 10:50 a.m.

The Obama Administration late Tuesday asked the Eleventh Circuit Court to put on a fast track the government’s appeal of the most sweeping ruling yet on the new health care law — a Florida federal judge’s decision striking down all parts of the law.   In a motion for expedition (found here), the government suggested a schedule for briefing to be completed in June, with oral argument to follow quickly.  (Further update: The docket number of the case is 11-11021.)

The Justice Department motion noted that two other federal appeals courts are considering constitutional questions about the new law on an expedited basis — the Fourth and Sixth Circuits.  And it said that it had recently agreed to a fast-track appeal in another case, in the D.C. Circuit.

With the filing of the expedition motion, the Justice Department fulfilled the last of the requirements that Senior U.S. District Judge Roger Vinson had imposed as conditions for putting on hold his decision nullifying the entire 2,700-page law.  Thus, while the Eleventh Circuit case proceeds, the government can coninued to enforce the law.

The briefing schedule suggested that the government’s opening brief be due April 18, with the challengers’ response due May 18.  The government sought a reply brief date of June 1, unless the challengers raise issues in their response about the parts of their challenge that Judge Vinson had rejected.  Justice Department lawyers may need more time to reply if the case is expanded that way, the motion said.

NOTE TO READERS:  The following post appeared here Tuesday night:

The Obama Administration on Tuesday formally began an appeal, to the Eleventh Circuit Court, of a Florida federal judge’s ruling striking down all of the new health care law.  The filing of a notice of appeal in U.S. District Court in Pensacola will allow the government to continue enforcing the new law while that appeal goes forward.

Last week, Senior District Judge Roger Vinson gave the government seven days to file such a notice, indicating that, if it did not, he would put into effect an order blocking enforcement of any part of the 2,700-page measure, which includes some 450 separate provisions.  Tuesday’s filing beat that deadline by two days.

The Administration is also required, under the judge’s stay order, to seek expedited treatment of the case in the Eleventh Circuit.  Two other appeals on the constitutionality of the new law, or key provisions of it, are moving on fast-track schedules in the Fourth Circuit, based in Richmond, VA, and in the Sixth Circuit, based in Cincinnati.

It is up to the Eleventh Circuit, based in Atlanta, to grant or deny expedition of the new government appeal there.  Such a request will be filed in that court,  and that filing is expected tomorrow, according to Tracy Schmaler, Justice Department spokesperson.

In its notice of appeal, the government said it would contest before the appeals court Judge Vinson’s ruling declaring the entire law unconstitutional, incliuding his clarifying opinion on March 3 that demanded that an appeal be started in return for a temporary stay of the decision.  It also said it would challenge the judge’s refusal in October to dismiss the case as the government had requested.

Judge Vinson gave the government the option of seeking expedited review of his decision either in the Eleventh Circuit or directly in the Supreme Court.  The government has made clear repeatedly that it believes the constitutional issues should be aired first in the appeals courts, rather than in a rush to get a Supreme Court decision.

The state of Virginia, however, has pending at the Supreme Court a plea for the Justices to hear that state’s case before the Fourth Circuit rules on the appeal pending there.  That case is Virginia v. Sebelius (HHS Secretary), docket 10-1014.  The Justice Department is due to file a reply by next Monday, if it does not seek and receive an extension.  The Department is expected to oppose Supreme Court review at this stage.

Recommended Citation: Lyle Denniston, UPDATE: U.S. seeks fast appeal on health care, SCOTUSblog (Mar. 9, 2011, 10:50 AM),