Tuesday, January 18, 2011

U.S. files its notice of appeal in Virginia v. Sebelius

A document containing the following paragraph was just filed by the Department of Justice in the United States District Court for the Eastern District of Virginia:

PLEASE TAKE NOTICE that the defendant, Kathleen Sebelius, in her official capacity as Secretary of the Department of Health and Human Services, hereby appeals to the United States Court of Appeals for the Fourth Circuit from the final Order (Doc. 162) and Memorandum Opinion (Doc. 161) granting summary judgment in part to the plaintiff and denying summary judgment to the Secretary, entered in this action on December 13, 2010, and from all previous rulings in this action, including the Order (Doc. 85) and Memorandum Opinion (Doc. 84) denying the Secretary’s motion to dismiss, entered in this action on August 2, 2010.

DATED this 18th day of January, 2011.

Respectfully submitted,

Assistant Attorney General

IAN HEATH GERSHENGORN (admitted pro hac vice)
Deputy Assistant Attorney General

United States Attorney

By: /s/ Jonathan H. Hambrick
Assistant United States Attorney
Office of the United States Attorney
600 East Main Street, Suite 1800
Richmond, Virginia 23219

The case will now be docketed by the Fourth Circuit, which will set a briefing schedule relatively soon. Barring unforeseen extensions, the case is likely to be argued before the Fourth Circuit some time in the spring or early summer. (As discussed before, there remains the question of how the Fourth Circuit will coordinate this appeal and that in Liberty University v. Geithner. It would be rather odd for two different panels of Fourth Circuit judges to be considering precisely the same legal question simultaneously. The Liberty University case raises a number of issues, but the constitutional challenge to the minimum essential coverage requirement is identical.)