Wednesday, August 31, 2011

A calendar for the coming months

We have hit a bit of a lull in the ACA litigation storm -- but rest assured, the winds will start blowing again soon. Here is a brief overview of the significant dates for the next five months:

September 23: oral argument at the United States Court of Appeals for the D.C. Circuit in Seven-Sky v. Holder. This case lags behind Thomas More Law Center (CA6), Florida v. HHS (CA11), and the two Fourth Circuit cases, so it is unclear how much it will matter. But it is significant in the sense that the panel comprises an all-star cast of judges: Silberman, Edwards, and Kavanaugh. So even if this case never reaches the Supreme Court, the panel's opinion (or, more likely, opinions) is apt to be influential in the justices' deliberations.

September 28: the present due date for the United States's response to the petition for certiorari in Thomas More Law Center v. Obama. As we have discussed here previously, the federal government has several options as to how it wants to respond, from conceding that certiorari is warranted to urging denial to asking the Court to hold the petition for the time being. Which option it chooses will largely reveal the administration's strategy in terms of timing (though the Court, obviously, will have the ultimate say).

November 10: deadline for filing a petition for certiorari in Florida v. HHS. Both sides have until this date to seek the Supreme Court's review. This date could change, though, if either side seeks en banc review in the Eleventh Circuit or seeks an extension from the Supreme Court.

January 15 (roughly): the typical cut-off for cert grants to be argued during the present Term. This date is flexible, and the Court can always expedite the briefing schedule. But generally those petitions granted up until this date are argued during the current Term (argued in April, decided by June), while those granted after this date are pushed off until the next Term (here, it would mean argued in the fall of 2012 and decided in 2013). Thus, if the Court has not yet granted certiorari in one of the cases by this date, it will become increasingly likely that the Court's decision will come after the 2012 election.