How En Banc Review Would Work in Halbig

This morning the D.C. Circuit ruled that the ACA “unambiguously restricts the section 36B subsidy to insurance purchased on Exchanges “established by the State.”  (See opinion here.)  In other words, the court ruled that the subsidies that make insurance on federally-operated exchanges affordable are illegal.

In the news and blog coverage this has already received, the possibility of this decision being reversed “en banc” has been mentioned.  (See here, here, and here for news, here and here for blogs.  For other blog reading on the opinion itself, see here and here.)  Having written a bit elsewhere about the logistics of the DC Circuit (see here), I thought I would chime in with specifics about exactly how the decision whether to rehear the case en banc, and en banc rehearing, would work.

Today’s decision was issued by a three-judge panel (Griffith, Randolph, and Edwards dissenting).  You’ll hear it said that a “panel of the DC Circuit” invalidated the law, but that is not quite right.  The panel speaks for the full DC Circuit.  When a three-judge panel issues a decision that the full court (currently 11 active judges) does not like, the full court can reconsider the case by choosing to hear it en banc.  That may well happen in Halbig.  The rules governing that process are the Federal Rules of Appellate Procedure, D.C. Circuit Rule 35 (see here), and the Handbook of Practice and Internal Procedures for the D.C. Circuit (see here).

Standard for whether to hear a case en banc:  En banc rehearing is very rare, with at most one or two cases receiving it in a year.  (To quote the handbook, rehearing petitions are “frequently filed but rarely granted.”)  That is because the court “disfavors” en banc review and grants it only when a majority of active judges agree that doing so is “(1) necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.”

Is standard met?  Because Halbig concerns a question of statutory interpretation, I do not see a good argument that reconsideration is necessary to maintain uniformity in circuit precedent.  The only hope, then, is the “exceptional importance” of Halbig.  That standard is not so straightforward; the DC Circuit hears many important cases.  While Halbig is definitely more politically noteworthy than many of those, it is not a slam dunk to say that it is different in kind from other major DC Circuit regulatory cases.  For example, the DC Circuit refused to rehear Jones v. United States en banc, the case addressing the constitutionality of warrantless GPS tracking.  625 F.3d 766.

That said, Halbig is obviously important enough to make a credible case for exceptional importance.  And, the four recent Obama appointments that were forced through the Senate has changed the composition of the court, so the new court’s approach to en banc review is harder to predict.

Who decides whether to hear a case en banc: Only the 11 active judges of the court, not the senior judges, vote on whether to hear a case en banc.  So that means, in order of appointment, Garland, Henderson, Rogers, Tatel, Brown, Griffith, Kavanaugh, Srinivasan, Millet, Pillard, and Wilkins.

Who sits on the en banc court: The active judges of the court, PLUS any senior judges who sat on the panel, sit if the case is heard en banc.  That means the judges listed above plus Randolph and Edwards, who both were on the panel in Halbig.

Process: The Government has 45 days to decide whether to seek rehearing en banc, although they could seek an extension of that time.  (If the Government opts not to seek rehearing, any active judge or member of the panel may themselves suggest rehearing and call for a vote.)  Then, if a member of the court seeks a response, one will be filed, and the court will consider whether to rehear the case privately (no oral argument), for however long it takes.  (For those who would like to file as amici at this stage, I hate to disappoint, but they may do so only at invitation from the court.)  Ultimately, the court’s decision will be published and available online.  If it grants rehearing, it is likely that new briefs will be sought and the argument not calendared for several months, perhaps not even until next spring.

Ties go to the runner: If there is a tie in deciding whether to rehear, the case is not reheard, and if there is a tie on rehearing, the decision below is affirmed.  That should not happen here with an odd number of potential judges, but could come up if any of the judges should have to recuse.  I do not know enough about the pre-court work of the recent Obama appointees (Srinivasan, Millet, Pillard, and Wilkins) to say whether recusal might be a possibility.

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