As I noted in an earlier post, the United States will go for en banc review on the nuclear panel. The 4th Circuit plaintiffs will almost certainly go for certiorari. This presents an interesting timing issue, and a race for the Court house.

I suspect the plaintiffs will file for certiorari first. If the government files a petition for en banc, I suspect the plaintiffs to ask the D.C. Circuit to put en banc on hold while the certiorari petition is pending. That would have the result of preventing the D.C. Circuit from vacating the panel opinion–which would have the result of killing the Circuit split.

In any event, the Court should have a cert petition on its docket this fall. Then, the government could oppose cert, by asking the Court to delay its resolution pending the D.C. Circuit’s en banc proceedings. Thus, the Court can deny certiorari on King (4th Circuit case) and wait for Halbig. Oh what fun!

It’s so rare that a Circuit split forms in one day.

Update: Let’s think about the timing this way. Let’s assume that the plaintiffs file a cert petition in the next week or so. The following week the United States files a petition for rehearing en banc. The plaintiffs will reply that a cert petition is pending, and the en banc proceedings should be put on hold pending resolution of the cert petition. The government will certainly raise the en banc petition in their opposition to cert. But, the plaintiffs can say, if the Court denies certiorari from the 4th Circuit, then the en banc proceedings can continue in the D.C. Circuit. If the Court grants certiorari, then there is no point in the D.C. Circuit granting en banc review bc the Justices will go for it. Really, there is no point in the D.C. Circuit considering en banc, or even vacating the panel decision, if the Court takes it. That is, unless the D.C. CIrcuit sua sponte grants en banc–without the need for briefing–and vacates the opinion. I think that outcome is unlikely.