Aug 18, 2014

Posted in Uncategorized

Opposition to En Banc Review in Halbig

The lawyers at Jones Day have filed a brief opposing en banc review in Halbig. Here is their introduction, which states the issue concisely–the Supreme Court will provide the final resolution, and since cert has already been filed from the 4th Circuit,  there’s no point delaying that resolution by rehearing it en banc.

There is no doubt that this case is of great national importance. Not due to the legal principles at stake—this is a straightforward statutory construction case under well-established principles—but rather due to its policy implications for ongoing implementation of the Affordable Care Act (“ACA”). Those implications, however, are precisely why rehearing would not be appropriate here, as Judges of this Court have recognized in many analogous cases. Continued uncertainty over the validity of the IRS Rule at issue is simply not tenable, given its enormous consequences for millions of Americans, hundreds of thousands of businesses, dozens of states, and billions of dollars in monthly federal spending. Only the Supreme Court can lift that doubt by giving a definitive answer to the challenge raised here (and in other suits). The Supreme Court has already been asked to do so, in a petition from a conflicting Fourth Circuit decision that would allow the matter to be resolved during the Court’s upcoming Term. En banc review, by contrast, would cause delay without providing any certainty—regardless of how the en banc court ultimately rules. Thus, for the same reasons that this Court expedited review of this case, the en banc petition should be denied and this matter should proceed immediately, as it ultimately must in any event, to final resolution by the Supreme Court. At the very least, the petition should be held in abeyance pending Supreme Court action on the certiorari petition already before it.

The brief makes the point clearly that en banc proceedings would be a waste of time if the Court grants review:

In particular, where cases are “important” only by virtue of their national implications, or where Supreme Court review is otherwise required or likely, rehearing is not only a waste of resources but could actually harm the public interest by delaying final resolution.

The brief also cites a number of opinions concurring in denial of en banc, from *high profile* D.C. Circuit cases, where judges preferred to let the Court resolve it.

  • Bismullah v. Gates, 514 F.3d 1291, 1299 (D.C. Cir. 2008) (Garland, J., concurring in denial of rehearing en banc) (“Were we to grant en banc review in Bismullah, we would plainly delay our decision and hence the Supreme Court’s disposition of Boumediene. As delaying the latter is contrary to the interests of all of the parties, as well as to the public interest, I concur in the denial of rehearing en banc without reaching the merits.”).
  • Nat’l Inst. of Military Justice v. DOD, No. 06-5242, 2008 U.S. App. LEXIS 16732, at *5 (D.C. Cir. Apr. 30, 2008) (Tatel, J., concurring in denial of rehearing en banc) (“Only the Supreme Court can clarify the outer limits of the ‘intra-agency’ prong of Exemption 5.”).
  • Brown v. Pro Football, Inc., 50 F.3d 1041, 1071 (D.C. Cir. 1995) (Tatel, J., concurring in denial of rehearing en banc) (“This case presents antitrust and labor issues of national significance. The issues have been fully engaged and developed by the majority and dissenting opinions. Supreme Court review is essential to the resolution of these issues.”).
  • Kimberlin v. Quinlan, 17 F.3d 1525, 1526 (D.C. Cir. 1994) (Williams, J., concurring in denial of rehearing en banc) (“[I]t seems to me on balance preferable to continue with [Circuit precedent] until the Supreme Court resolves the issue”); see also id. (Silberman, J., concurring the denial of rehearing en banc) (agreeing that “the Supreme Court is better positioned than we to resolve” the issue).

They also cite an article co-authored by Judge Ginsburg, stressing that there is no need for en banc review where the Supreme Court will soon take it.

Douglas H. Ginsburg & Donald Falk, The Court En Banc: 1981-1990, 59 GEO. WASH. L. REV. 1008, 1025 (1991) (“If the conflict is important, the Supreme Court is likely to resolve it, and its decision is not likely to be affected by anything that the en banc court could add to the debate already reflected in the conflicting opinions of the circuits.”).

This is the quintessential case in which the urgent need for Supreme Court review weighs strongly against en banc consideration. The significance of the IRS Rule makes prompt and definitive resolution a national imperative, and only the Supreme Court can provide it. By contrast, en banc rehearing would waste a great deal of resources and cause significant delay, contrary to the public interest.

As I noted (at sea) when Halbig and King were both decided, en banc doesn’t make sense if the Court grants certiorari. The D.C Circuit should hold onto the petition to see what the Court does. If the D.C. Circuit acts quickly, and grants review, a cert grant would moot it.  The brief makes this point:

First, if this Court grants rehearing and then, in October, the Supreme Court chooses to grant the King petition nonetheless, any work done in the interim by this Court, the parties, or their amici would become effectively moot.

Although, maybe the Court would then not grant cert, and wait for the D.C. Circuit. Oh the machinations are endless!

In other words, the D.C. Circuit would be in a better position to put the onus on One First Street to decide what happens. If the Court then denies cert, en banc considerations can continue.

At minimum, if this Court has any doubt over whether the Supreme Court will actually grant the pending certiorari petition in King, the Government’s en banc petition should be held in abeyance pending action on the King petition. If the Supreme Court for some reason denies review, this court can then give the en banc petition further consideration. If the Supreme Court grants review in King as expected, the en banc petition can be safely denied.

Looking ahead, the brief sketches out the likely schedule for the King petition:

The Supreme Court is primed to provide that final resolution. In King v. Burwell, which was also greatly expedited, the Fourth Circuit upheld the IRS Rule that the panel here invalidated. See No. 14-1158, 2014 U.S. App. LEXIS 13902 (4th Cir. July 22, 2014). And, even before the Government filed its en banc petition, the King plaintiffs filed a certiorari petition asking the Supreme Court to grant review to resolve the Circuit conflict. Exh. A (Pet. for Cert., No. 14-114). The Government’s response to the petition is due by September 3, 2014, allowing the Court to grant review in late September or early October and to resolve the case on the merits during the upcoming Term. In light of the division among the lower courts and the self-evident importance of the issue, there is no doubt that, if this Court denies rehearing, the Supreme Court would do just that. There would accordingly be a final, authoritative determination by June 2015 at latest.

In short, it is in everyone’s interests for the Supreme Court to finally resolve this question now, to both preclude further detrimental reliance and to eliminate the cloud that will inevitably hang over the IRS Rule otherwise. En banc rehearing cannot achieve that goal. The Government’s petition should therefore be denied.

In a few places, the brief does veer into the political, though I think does so effectively.

Importantly, given that the panel’s holding was dictated by the Act’s plain text, there is a good chance of en banc affirmance, notwithstanding the Senate Majority Leader’s cynical suggestion that the “simple math” of en banc review in this case “vindicates” his elimination of the filibuster to confirm three new judges to this Court. Josh Gerstein, How Obama’s Court Strategy May Help Save Obamacare, POLITICO, July 22, 2014; see also Emily Bazelon, Obamacare Is Safe, SLATE, July 22, 2014 (claiming that the panel “will likely be reversed” because “D.C. Circuit (finally!) has four Obama appointees”).

I think this flips the political rhetoric on its head. The D.C. Circuit should stand above the politics, and not succumb to all of the calls from Reid and Bazleon and others to uphold the rule because that is what liberals want.

I should note there is some irony in the fact that Emily Bazelon’s grandfather, Chief Judge David Bazelon was responsible for so much rancor on the D.C. Circuit. His feuds with Warren Burger were legendary.

I should also lump in his, successors Mikvah and Wald, who were responsible for much of the dissent on the D.C. Circuit. In his article, Judge Ginsburg alluded to, but did not name the latter two judges.

Looking at the dissent rate year by year,21 I found a significant drop off beginning in 1997, followed by relatively level and much lower rate from 1998 to 2007. Indeed, the average dissent rate in the first eight years of the study period (1990- 97) was 5.5 percent, whereas it was only 3.6 percent for the next 10 years (1998-2007). Upon closer inspection, I noticed that 20 percent of the dissents in the entire period were filed by two judges; one left the court in July 1994, the other in late 1999.22 But for the dissents of those two judges, the dissent rate for the first eight years would have been 3.9 percent, and the rate for the overall 18-year period covered by the authors would have been 3.7 percent instead of 4.6 percent. Without the contribution of those two judges, the D.C. Circuit’s dissent rate would drop from the second to the fourth-highest of the courts of appeals.23

In case you needed a hint–because Judge Ginsburg is to kind to name names–Judge Abner Mikva was Chief Judge until 1994, when he left the court to become President Clinton’s counsel. The other is Judge Patricia Wald, who left the court in 1999. Ahem. Both Carter appointees were responsible for an inordinate number of dissents over the period. Note Judge Ruth Bader Ginsburg was not among that group.

Judge Ginsburg heaped praise on Judge Edwards, who helped unite the court:

When the first of the two frequent dissenters left the court, it had a reputation for being contentious; a number of local newspaper gossip columns had run articles reporting rumors of bad blood among the judges.24 At that point, however, Harry Edwards became the new chief judge and made it a priority to restore collegiality among the judges; that he did with remarkable success, and his efforts have been continued by the three chief judges since. His becoming chief judge marked the end of the court’s practice of seating visiting judges. In relatively short order, the number of times the full court sat en banc to rehear a case previously decided by a panel of three judges dropped significantly: The number of rehearings en banc averaged six per year in the 1980s,25 three in the 1990s,26 and less than one in the first decade since.27 In my view, these declining numbers reflect in part the increasing level of mutual trust and respect among the judges.

Adam White made a similar observation in WSJ:

Mr. Edwards played an important role in the court’s history on precisely this issue. In the 1980s, acrimony on the D.C. Circuit was well known. But in the 1990s, Mr. Edwards became chief judge and restored collegiality, in part by greatly reducing the number of en banc rehearings, to three a year in the 1990s from roughly six a year in the 1980s.

Thankfully, Judge Edwards, and his successors, have helped to clean things up, and improved the collegiality of the court.

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