The race to One First Street for King–the lesser known cousin of Halbig–is on. Last week, within a day of each other, a petition for certiorari and a petition for rehearing en banc was filed. Now, the lawyers at Jones Day have launched what can only be deemed a pre-emptive strike against the Solicitor General.

The United States was due to file a response to the petitioner’s cert petition on September 3. More likely than not, the United States would request an extension of time. Under the normal course of order, the Clerk of the Court would be able to grant that extension as a matter of course.

But in a letter to the Court, Mike Carvin of Jones Day has put the Clerk on notice that it would not consent to that delay.

Pursuant to Rule 30.4 of this Court’s Rules, I request that any application by Respondents for an extension of that time be submitted to the full Court for consideration. For reasons explained in the Petition, this case involves a matter of urgent public importance and petitioners therefore oppose any attempt to delay its resolution.

In other words, Jones Day will not agree to any delay, and the Clerk should ask all nine Justices before granting the extension.

Rule 30.4 provides:

4. An application to extend the time to file any document or paper other than those specified in paragraph 3 of this Rule may be presented in the form of a letter to the Clerk setting out specific reasons why an extension of time is justified. The letter shall be served on all other parties as required by Rule 29. The application may be acted on by the Clerk in the first instance, and any party aggrieved by the Clerk’s action may request that the application be submitted to a Justice or to the Court. The Clerk will report action under this paragraph to the Court as instructed.

The plain text of the rule seems to countenance an aggrieved party requesting the extension be submitted to the entire Court *after* the Clerk acts in the first instance. But, I can see how it can be read as two separate clause,where the aggrieved party can make the request independent of the clerk’s action.

This letter strikes me as potentially counterproductive. I can’t imagine in what universe a majority of the Justices will oppose giving the frickin Solicitor General an extension. I also imagine the SG is pissed off now. I also doubt this will dissuade the SG from filing an extension, as he is entitled to do. But this will put the Court on record, at least, whether they grant the extension.