Breaking: House moves to hold in abeyance briefing in House of Representatives v. Burwell

November 21st, 2016

Today the House General Counsel filed a motion, asking the D.C. Circuit to hold in abeyance the briefing in House of Representatives v. Burwell. The Obama administration filed its opening brief on October 24, when we all thought Clinton was going to win. The House’s brief, which was due at the end of December, may now no longer be necessary. The brief expressly notes that the President-Elect may choose to handle this case differently, and filing a brief before the inauguration would be a waste of judicial resources.

Appellee U.S. House of Representatives respectfully moves for entry of an order temporarily holding in abeyance all briefing in this appeal, and directing the parties to file by February 21, 2017, a joint status report indicating (a) whether the parties are considering settlement or voluntary dismissal of the appeal and, if not, (b) proposing a schedule for the remainder of the briefing in this matter. Appellee’s representatives and the President-Elect’s transition team currently are discussing potential options for resolution of this matter, to take effect after the President-Elect’s inauguration on January 20, 2017. A temporary stay of the briefing schedule will provide the President-Elect and his future Administration time to consider whether to continue prosecuting or to otherwise resolve this appeal.

The brief even cites Trump’s personal statements about repealing Obamacare:

The relatively short stay requested by Appellee would provide the incoming President and his appointed officials time to decide whether withdrawal or settlement of the appeal is warranted. In light of public statements by the President-Elect and his campaign, FN 2 there is at least a significant possibility of a meaningful change in policy in the new Administration that could either obviate the need for resolution of this appeal or affect the nature and scope of the issues presented for review.

FN 2: See, e.g., Healthcare Reform to Make America Great Again, available at (proposing to replace the Affordable Care Act with “a series of reforms ready for implementation that follow free market principles”); Theodore Schleifer, Tami Luhby and Sophie Tatum, CNN, “Trump appears open to compromise on Obamacare,” available at (“‘Either Obamacare will be amended, or repealed and replaced[.]’”).

Conspicuously, DOJ did not consent to the motion. In contrast, the parties jointly agreed to stay proceedings in U.S. v. Texas “given the Change in administration.”

Indeed, in closely analogous circumstances the Executive Branch has already acknowledged the propriety of the type of relief sought by Appellee here. In the ongoing legal challenge to the Administration’s program of deferred action r certain undocumented aliens, which is on remand from the Supreme Court’s 4- 4 affirmance of the district court’s preliminary injunction, the Department of Justice recently joined in a joint motion to stay further proceedings in order to give the incoming Administration an opportunity to consider its next steps: “Given the change in Administration, the parties jointly submit that a brief stay of any further litigation in this Court before beginning any further proceedings would serve judicial efficiency and economy so that the parties have a better understanding of how they might choose to move forward.” Joint Mot. to Stay Merits Proceedings at 1, ECF 430, Texas et al. v. United States, No. 1:14-cv-254 (S.D. Tex. filed Nov. 18, 2016). Precisely the same approach is appropriate here as well.

My tweet at the time:

I suspect the D.C. Circuit will be all too happy to let this case go away. The brief cites a number of precedents where cases were stayed pending a change in administrations.

Parties frequently request such abeyances in pending matters due to elections that produce changes in Presidential Administrations and corresponding changes in Administration policies. See, e.g., California et al. v. Envtl. Prot. Agency, No. 08-1178 (D.C. Cir.) (staying briefing for several months to permit President Obama to reconsider determinations promulgated by EPA under President Bush); Envtl. Prot. Agency v. New Jersey, Pet. Cert., No. 08-512 (S. Ct.) (several extensions granted by the Supreme Court; petition for writ of certiorari voluntarily dismissed approximately two weeks after President Obama’s election); New Jersey v. Envtl. Prot. Agency, No. 08-1065 (D.C. Cir.) (case held in abeyance for seven years, beginning shortly after President Obama’s inauguration, to permit Administration to review regulations promulgated under President Bush); Mississippi v. Envtl. Prot. Agency, 744 F.3d 1334, 1341 (D.C. Cir. 2013), Clerk’s Order No. 08-1200 (D.C. Cir. Mar. 19, 2009) (granting abeyance motion after President Obama’s election to permit agency to review and reconsider Bush Administration rule); Richard J. Lazarus, The Transition and Two Court Cases, 26 The Environmental Forum 12, at 14 (Feb. 2009).

Beyond the specifics of this case, there is another reason for the D.C. Circuit to let this one go: I suspect one house of government may choose to sue the Trump Administration in the future.