Late Friday, the United States Court of Appeals for the Fourth Circuit set down the briefing schedule for Virginia v. Sebelius. Lyle Denniston of SCOTUSblog has a report here, and you can access the court's order here.
This gist is this:
* The United States's brief (as appellant) is due March 2
* Amicus briefs supporting the United States are due March 9
* Virginia's brief (as appellee) is due April 4
* Amicus briefs supporting Virginia are due April 11
* The United States's reply brief is due May 9
* Virginia may file a response to the United States's reply brief within 14 days of the filing of the United States's brief
Assuming this schedule holds, oral argument will not take place until June at the earliest. Also, no word yet on how the Fourth Circuit plans to coordinate this case with that if Liberty University v. Geithner. My best guess is that, although briefing in that case should be complete by March, argument in the two cases will be held at the same time (and before the same panel), meaning some time this summer.
Monday, January 24, 2011
Saturday, January 22, 2011
Barnett and Kerr debate the constitutionality of ACA 1501(b)
As noted a few weeks ago, this debate took place at the Federalist Society meeting concurrent with the AALS annual meeting in San Francisco.
NPR's All Things Considered
This evening's program featured a relatively long story on the question whether the ACA's minimum essential coverage requirement exceeds Congress's enumerate powers. You can listen to the story here.
Some points of increasing emphasis
The Department of Justice and its amici filed several briefs this week, in three different cases. And as this litigation (broadly defined) proceeds, it appears that the federal government and its friends have increasingly focused on three critical points:
* The commercial market that the ACA regulates is not (or not just) the health insurance market, but the health care services market. The reason this point might be important is that, although one can plausibly contend that the plaintiffs are "inactive" with respect to the health insurance market (and thus being compelled into the market), the same is not true of health care market. Virtually every American participates in that market, by choice or otherwise.
* The activity-inactivity distinction is a post-hoc, gerrymandered construct that has no basis in the Court's decisions. What is more, it is artificial and borders on the incoherent. What counts as activity or inactivity is in the eye of the beholder.
* The health care services market is unique: everyone participates, those who finance their care in a particular way (namely, without insurance) shift their costs to others, the government pays for much of the care, it constitutes a huge percentage of the nation's GDP, and we have resolved as a society that we will not simply deny the service to those who lack the means to pay. No other market contains these same features. This is potentially important because, if the market the ACA regulates is indeed unique, then the plaintiffs' slippery slope arguments (e.g., mandatory broccoli) might be de-fanged.
Readers should make their own judgments about the degree to which these contentions in the papers have been successful in establishing these points. But as we gradually get closer to the eventual destination of One First Street, N.E., I would expect these arguments only to grow in their significance.
* The commercial market that the ACA regulates is not (or not just) the health insurance market, but the health care services market. The reason this point might be important is that, although one can plausibly contend that the plaintiffs are "inactive" with respect to the health insurance market (and thus being compelled into the market), the same is not true of health care market. Virtually every American participates in that market, by choice or otherwise.
* The activity-inactivity distinction is a post-hoc, gerrymandered construct that has no basis in the Court's decisions. What is more, it is artificial and borders on the incoherent. What counts as activity or inactivity is in the eye of the beholder.
* The health care services market is unique: everyone participates, those who finance their care in a particular way (namely, without insurance) shift their costs to others, the government pays for much of the care, it constitutes a huge percentage of the nation's GDP, and we have resolved as a society that we will not simply deny the service to those who lack the means to pay. No other market contains these same features. This is potentially important because, if the market the ACA regulates is indeed unique, then the plaintiffs' slippery slope arguments (e.g., mandatory broccoli) might be de-fanged.
Readers should make their own judgments about the degree to which these contentions in the papers have been successful in establishing these points. But as we gradually get closer to the eventual destination of One First Street, N.E., I would expect these arguments only to grow in their significance.
Friday, January 21, 2011
Amicus brief of Governor Gregoire
Washington Governor Christine Gregoire tonight filed an amicus curiae brief in Thomas More Law Center v. Obama in support of the ACA's constitutionality. The brief was authored by attorneys in a private law firm, as the Washington Attorney General is currently challenging the Act's constitutionality as a plaintiff in Florida v. HHS. You can access Governor Gregoire's brief here.
U.S. reply brief in Walters v. Holder
This evening the Department of Justice filed its reply in support of its motion to dismiss in the case alternatively titled Walters v. Holder and Bryant v. Holder, which is currently pending before the Southern District of Mississippi. You can access the brief here. There is presently no timetable for when the District Court will rule on the United States's 12(b)(6) motion.
Another suit: Oklahoma v. Sebelius
Oklahoma Attorney General Scott Pruitt this afternoon filed the state's long-anticipated lawsuit challenging the the constitutionality of the Affordable Care Act. Specifically, he filed the suit in the United States District Court for the Eastern District of Oklahoma. And the suit makes only one claim: that the minimum essential coverage requirement exceeds Congress's enumerated powers (specifically, those granted by the Commerce Clause and the Necessary and Proper Clause). You can access the complaint here.
This is now the third state-initiated suit claiming the ACA is unconstitutional, the two others being Virginia v. Sebelius and Florida v. HHS. As to why Oklahoma is not simply joining the other 26 states in the Florida case, General Pruitt has stated that Oklahoma voters' approval of State Question 756 this past November--which provides, inter alia, that no "law or rule" shall "compel, directly or indirectly, any person, employer or health care provider to participate in any health care system"--compelled him to defend Oklahoma's distinct sovereign interests in a separate legal action.
This is now the third state-initiated suit claiming the ACA is unconstitutional, the two others being Virginia v. Sebelius and Florida v. HHS. As to why Oklahoma is not simply joining the other 26 states in the Florida case, General Pruitt has stated that Oklahoma voters' approval of State Question 756 this past November--which provides, inter alia, that no "law or rule" shall "compel, directly or indirectly, any person, employer or health care provider to participate in any health care system"--compelled him to defend Oklahoma's distinct sovereign interests in a separate legal action.
Another amicus brief in TMLC v. Obama
Another amicus brief in support of the United States has been filed in Thomas More Law Center v. Obama, this one by the American Nurses Association, American Academy of Pediatrics, American Medical Student Association, Center for American Progress D/B/A Doctors for America, National Hispanic Medical Association, and National Physicians Alliance. You can access the brief here.
Two more amicus in TMLC v. Obama
Two more briefs in support of the United States have been filed at the Sixth Circuit in Thomas More Law Center v. Obama:
* A brief filed by the states of Oregon, Iowa, New York, California, Vermont, Hawaii, Maryland, and Delaware, which you can access here.
* A brief filed by a group of constitutional law professors, co-written by Gillian Metzger and Trevor Morrison (both of Columbia Law School), which you can access here.
* A brief filed by the states of Oregon, Iowa, New York, California, Vermont, Hawaii, Maryland, and Delaware, which you can access here.
* A brief filed by a group of constitutional law professors, co-written by Gillian Metzger and Trevor Morrison (both of Columbia Law School), which you can access here.
Five amicus briefs filed (thus far) in support of the United States in TMLC v. Obama
Today is the deadline (under F.R.A.P. 29) for the filing of amicus curiae briefs in support of the United States at the Sixth Circuit in Thomas More Law Center v. Obama. As of 3:30 EST, the following parties' briefs had been filed and docketed on PACER (several more are sure to follow):
* The American Hospital Association, Association of American Medical Colleges, Catholic Health Association of the United States, Federation of American Hospitals, National Association of Children’s Hospitals, and National Association of Public Hospitals and Health Systems, available here.
* The American Association of People with Disabilities, the Arc of the United States, Breast Cancer Action, Families USA, Friends of Cancer Research, March of Dimes Foundation, Mental Health America, National Breast Cancer Coalition, National Organization for Rare Disorders, National Partnership for Women and Families, National Senior Citizens Law Center, National Women's Law Center, National Women's Health Network, and the Ovarian cancer National Alliance, available here.
* Senate Majority Leader Harry Reid, House Democratic Leader Nancy Pelosi, and Congressional Leaders and Leaders of Committees of Relevant Jurisdiction, available here.
* A group of 38 economic scholars, available here.
* The American Cancer Society, American Cancer Society Action Network, American Diabetes Association, and American Heart Association, available here.
Again, several more briefs will likely be filed in the next few hours. We will try to post them as soon as they are up on PACER.
* The American Hospital Association, Association of American Medical Colleges, Catholic Health Association of the United States, Federation of American Hospitals, National Association of Children’s Hospitals, and National Association of Public Hospitals and Health Systems, available here.
* The American Association of People with Disabilities, the Arc of the United States, Breast Cancer Action, Families USA, Friends of Cancer Research, March of Dimes Foundation, Mental Health America, National Breast Cancer Coalition, National Organization for Rare Disorders, National Partnership for Women and Families, National Senior Citizens Law Center, National Women's Law Center, National Women's Health Network, and the Ovarian cancer National Alliance, available here.
* Senate Majority Leader Harry Reid, House Democratic Leader Nancy Pelosi, and Congressional Leaders and Leaders of Committees of Relevant Jurisdiction, available here.
* A group of 38 economic scholars, available here.
* The American Cancer Society, American Cancer Society Action Network, American Diabetes Association, and American Heart Association, available here.
Again, several more briefs will likely be filed in the next few hours. We will try to post them as soon as they are up on PACER.
Thursday, January 20, 2011
Washington governor Christine Gregoire to file amicus in TMLC v. Obama
Christine Gregoire, the governor of the State of Washington, today filed papers in the Sixth Circuit indicating her intent to file an amicus curiae brief in Thomas More Law Center v. Obama in support of the ACA's constitutionality. It is unclear whether or governors or state governments will be joining her brief.
Governor Gregoire's involvement illustrates a point that some reporting on the ACA litigation has either missed or glossed over. Specifically, it's an oversimplification (or perhaps even incorrect) to claim that "28 states" are now challenging the constitutionality of the ACA. For some states, who represents the state, as such, is unclear. The attorney general may have final litigating authority, but if the governor actively opposes the attorney general's position, what is the position of "the state" as an entity?
Washington (represented by state attorney general Rob McKenna) is one of the 26 plaintiff states in Florida v. HHS. So its governor and its attorney general are now both involved, but on different sides.
Governor Gregoire's involvement illustrates a point that some reporting on the ACA litigation has either missed or glossed over. Specifically, it's an oversimplification (or perhaps even incorrect) to claim that "28 states" are now challenging the constitutionality of the ACA. For some states, who represents the state, as such, is unclear. The attorney general may have final litigating authority, but if the governor actively opposes the attorney general's position, what is the position of "the state" as an entity?
Washington (represented by state attorney general Rob McKenna) is one of the 26 plaintiff states in Florida v. HHS. So its governor and its attorney general are now both involved, but on different sides.
Oregon also to file amicus in TMLC v. Obama
The State of Oregon has filed its appearance at the Sixth Circuit indicating its intent to file a brief as amicus curiae in Thomas More Law Center v. Obama. All amicus briefs supporting the United States in the case should be filed by tomorrow evening.
Hospital groups to file amicus brief in TMLC v. Obama
The Sixth Circuit's docket sheet now contains an entry indicating that several hospital groups (to wit, the American Hospital Association, Association of American Medical Colleges, Catholic Health Association of the United States, Federation of American Hospitals, National Association of Children's Hospitals and Related Institutions and National Association of Public Hospitals and Health Systems) will be filing an amicus brief in support of the United States in Thomas More Law Center v. Obama. This is not too surprising, given that the same group of hospital groups also filed a brief in favor of the ACA's constitutionality in Florida v. HHS.
The attorney filing the brief will be Catherine Stetson (with whom I was a summer associate many years ago), a partner at Hogan Lovells, formerly Hogan & Hartson, in Washington, D.C. This is somewhat notable because Ms. Stetson used to work closely with another Hogan partner on litigation matters and testified on his behalf before the U.S. Senate--a former Hogan partner named John Roberts.
The attorney filing the brief will be Catherine Stetson (with whom I was a summer associate many years ago), a partner at Hogan Lovells, formerly Hogan & Hartson, in Washington, D.C. This is somewhat notable because Ms. Stetson used to work closely with another Hogan partner on litigation matters and testified on his behalf before the U.S. Senate--a former Hogan partner named John Roberts.
Summary of the parties’ handling of the activity-inactivity issue in TMLC v. Obama
In Thomas More Law Center v. Obama, the parties’ handling of the activity-inactivity distinction offers a fascinating glimpse into the crux of one of the most contentious issues raised in the ACA litigation: whether, by mandating that all Americans purchase basic health insurance coverage, Congress is seeking to regulate an activity that has a substantial affect on interstate commerce. How the Sixth Circuit resolves this issue will likely influence the rest of the suits that have been filed across the country, so we are providing a summary of the parties’ respective arguments concerning the activity-inactivity distinction.
The appellants argue that for the ACA’s individual mandate to fit into Lopez’s third category, Congress must seek to regulate an activity that substantially affects interstate commerce. (Appellant’s brief at 40.) They argue that Lopez and Morrison require that, at a minimum, Congress must seek to regulate an activity or “economic endeavor” for it to properly trigger its Commerce Clause authority. According to the appellants, the ACA does not satisfy this standard because, “[i]n this case, the Act attempts to regulate inactivity—by definition a non-event cannot be classified in any respect, let alone as an ‘economic endeavor’” (Id. at 41.) This, they argue, is problematic because “the Act does not identify any class of activities, but rather simply asserts that individuals’ inactivity is the basis for Congress’s exercise of Commerce Clause power.” (Id. at 42.)
According to the appellants, Congress has employed a “trick” as a means of triggering its Commerce Clause authority. (Id. at 44.) They argue that, “before Congress can regulate an activity, such activity must already exist; thus, in the Act, Congress commands all citizens to engage in economic activity (i.e. purchase health insurance), then Congress regulates that activity.” (Id.) The appellants argue that ratifying such an exercise of congressional power presents an “obvious danger” because “it would alter the relationship of the federal government to the states and the people.” (Id.) Furthermore, they contend, “such an alteration to Article I, § 8 would constitute an amendment to the Constitution in contravention of Article V.” (Id.)
In its brief, the U.S. writes that the appellants argument “disregards their participation in the health care market and the teachings of the Supreme Court, which focus on whether Congress seeks to regulate interstate commerce, and if so, what it may do in furtherance of that regulation.” (Appellee’s brief at 45.) The U.S. argues that in Raich, the Supreme Court “found it irrelevant that the plaintiffs were not engaged in commercial activity and that they did not buy, sell, or distribute any portion of the marijuana that they possessed,” because “Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would . . . affect price and market conditions.” (Id. at 46.) This, they argue, is in line with the Court’s pre-and post-Raich holdings concerning the effect of non-economic activities on Congress’s ability to regulate certain national markets. (See id. at 46–47.)
The U.S. writes that by attempting to distinguish the matter at hand from Wickard and Raich, the appellants “focus on the wrong market and ignore what Congress sought to regulate” with the individual mandate. (Id. at 47–48.) The U.S. argues that, “Even if plaintiffs do not currently participate in the insurance market, they indisputably participate in the market for health care services.” (Id. at 48.) Accordingly, “Requirements to obtain insurance are not imposed because of participation in the insurance market itself; they are imposed because of concerns that individuals or corporations may be unable to meet costs resulting from activities in other markets.” (Id.)
Finally, the U.S. argues that the “Plaintiffs’ attempt to draw an impermeable line separating participation in the health market from the maintenance of insurance coverage ignores the fundamental feature of health insurance—its function as the principal means of payment for health care services in the United States.” (Id. at 49.) The U.S. cites to various academics as well as the district court’s findings in this matter to support its position that deciding whether to purchase health insurance coverage is economic. (See id. at 49–51.) With this, the U.S. argues that if the plaintiffs “or any other person” who decides not to purchase health insurance coverage “encounters unexpected expenses for which they cannot pay, those costs will be externalized and borne by other consumers.” (Id. at 51.) Thus, “Congress acted well within its Commerce Clause power in regulating this economic decision that has profound economic effects on interstate commerce.” (Id. at 51–52.)
Fourth Circuit dockets Virginia v. Sebelius
The Fourth Circuit today docketed the case of Virginia v. Sebelius, assigning it the docket number 11-1057. The Commonwealth of Virginia actually filed its own notice of appeal, technically creating a separate case (presumably to appeal Judge Hudson's decision on the remedy--namely, to sever Section 1501(b) from the rest of the ACA and to grant only declaratory relief). The Fourth Circuit today consolidated the two appeals. And it ordered that the United States shall be the appellant, and Virginia the appellee, in the consolidated appeal.
The Fourth Circuit has not yet set any schedule for briefing or oral argument. Nor has it indicated how it will coordinate this case with Liberty University v. Geithner, in which the appellants have already filed their opening brief. Most commentators assume that the two cases will be argued together, before the same three-judge panel, to avoid the possibility of an intracircuit split.
The Fourth Circuit has not yet set any schedule for briefing or oral argument. Nor has it indicated how it will coordinate this case with Liberty University v. Geithner, in which the appellants have already filed their opening brief. Most commentators assume that the two cases will be argued together, before the same three-judge panel, to avoid the possibility of an intracircuit split.
Wednesday, January 19, 2011
Judge Vinson grants motion to add six states
District Judge Roger Vinson today issued an order granting the plaintiffs' motion to amend their complaint to add six states--Ohio, Kansas, Wyoming, Wisconsin, Maine, and Iowa--as plaintiffs in Florida v. HHS. You can access the order here.
Again, this runs the total of plaintiff states in the Florida case to 26, and the total number of states currently challenging the ACA to 27. If and when Oklahoma files its lawsuit, there will only be 22 states left not challenging the ACA in federal court.
Again, this runs the total of plaintiff states in the Florida case to 26, and the total number of states currently challenging the ACA to 27. If and when Oklahoma files its lawsuit, there will only be 22 states left not challenging the ACA in federal court.
You may have heard . . .
The United States House of Representatives voted today to repeal the ACA. The vote was 245 to 189, with the 245 consisting of 242 Republicans and 3 Democrats. The Senate will not take up the legislation, meaning it has no chance of becoming law.
I will leave it to others, more learned in political science and the political influences on judges, to assess how this might affect the constitutional challenges to the ACA.
(Actually, I lied--I will say one thing. I don't think anyone can say with any degree of certainty how this might affect the litigation.)
I will leave it to others, more learned in political science and the political influences on judges, to assess how this might affect the constitutional challenges to the ACA.
(Actually, I lied--I will say one thing. I don't think anyone can say with any degree of certainty how this might affect the litigation.)
Tuesday, January 18, 2011
U.S. reply brief in Sissel v. HHS
The Department of Justice has filed its reply memorandum in support of its motion to dismiss in Sissel v. HHS, currently pending before Judge Leon at the United States District Court for the District of Columbia. You can access the brief here.
The current status of the lawsuit is that the United States has moved to dismiss the complaint under F.R.C.P. 12(b)(6), and briefing on that motion is now complete. As far as I know, Judge Leon has not set any time frame for his decision. Sissel's complaint makes the one claim common to all the ACA lawsuits: that the minimum essential coverage requirement exceeds Congress's enumerated powers. He further claims that section 1501 is not severable from the rest of the ACA, and thus that the court should declare the Act unconstitutional in toto.
The current status of the lawsuit is that the United States has moved to dismiss the complaint under F.R.C.P. 12(b)(6), and briefing on that motion is now complete. As far as I know, Judge Leon has not set any time frame for his decision. Sissel's complaint makes the one claim common to all the ACA lawsuits: that the minimum essential coverage requirement exceeds Congress's enumerated powers. He further claims that section 1501 is not severable from the rest of the ACA, and thus that the court should declare the Act unconstitutional in toto.
Plaintiffs in Florida v. HHS move to amend complaint to add six more states
Here is the relevant language from the motion filed this afternoon:
"Pursuant to Rules 15, 20, and 21, Federal Rules of Civil Procedure, Plaintiffs hereby move for leave to file their Second Amended Complaint, submitted contemporaneously herewith, for the sole purpose of adding the following States as Plaintiffs:
STATE OF OHIO, by and through MICHAEL DeWINE, ATTORNEY GENERAL OF THE STATE OF OHIO;
STATE OF KANSAS, by and through DEREK SCHMIDT, ATTORNEY GENERAL OF THE STATE OF KANSAS;
STATE OF WYOMING, by and through MATTHEW H. MEAD, GOVERNOR OF THE STATE OF WYOMING;
STATE OF WISCONSIN, by and through J.B. VAN HOLLEN, ATTORNEY GENERAL OF THE STATE OF WISCONSIN;
STATE OF MAINE, by and through WILLIAM J. SCHNEIDER, ATTORNEY GENERAL OF THE STATE OF MAINE; and
TERRY E. BRANSTAD, GOVERNOR OF THE STATE OF IOWA, ON BEHALF OF THE PEOPLE OF IOWA.
As shown below, the inclusion and participation of these six States as Plaintiffs, following the recent cycle of elections nationally, is entirely proper, because the Additional States share the same interests, assert the same claims, and seek the same relief as the Plaintiff States in this litigation with respect to the same Act of Congress. The Additional States have authorized the undersigned to advise the Court that they support this motion."
Assuming the District Court grants the motion, this will run the total number of plaintiff states in this case to 26 (some of which are represented by attorneys general, some by governors). If we add Virginia (plaintiff in Virginia v. Sebelius) and Oklahoma (whose new attorney general has announced his intent to file a separate lawsuit), a total of 28 states are now challenging the constitutionality of the ACA in federal court. (It should be noted, though, that in a handful of these states--such as Washington--there is a disagreement within the state's own executive branch as to whether the state should be challenging the Act.)
UPDATE: You can access the plaintiffs' motion here. And you can access their second amended complaint here.
"Pursuant to Rules 15, 20, and 21, Federal Rules of Civil Procedure, Plaintiffs hereby move for leave to file their Second Amended Complaint, submitted contemporaneously herewith, for the sole purpose of adding the following States as Plaintiffs:
STATE OF OHIO, by and through MICHAEL DeWINE, ATTORNEY GENERAL OF THE STATE OF OHIO;
STATE OF KANSAS, by and through DEREK SCHMIDT, ATTORNEY GENERAL OF THE STATE OF KANSAS;
STATE OF WYOMING, by and through MATTHEW H. MEAD, GOVERNOR OF THE STATE OF WYOMING;
STATE OF WISCONSIN, by and through J.B. VAN HOLLEN, ATTORNEY GENERAL OF THE STATE OF WISCONSIN;
STATE OF MAINE, by and through WILLIAM J. SCHNEIDER, ATTORNEY GENERAL OF THE STATE OF MAINE; and
TERRY E. BRANSTAD, GOVERNOR OF THE STATE OF IOWA, ON BEHALF OF THE PEOPLE OF IOWA.
As shown below, the inclusion and participation of these six States as Plaintiffs, following the recent cycle of elections nationally, is entirely proper, because the Additional States share the same interests, assert the same claims, and seek the same relief as the Plaintiff States in this litigation with respect to the same Act of Congress. The Additional States have authorized the undersigned to advise the Court that they support this motion."
Assuming the District Court grants the motion, this will run the total number of plaintiff states in this case to 26 (some of which are represented by attorneys general, some by governors). If we add Virginia (plaintiff in Virginia v. Sebelius) and Oklahoma (whose new attorney general has announced his intent to file a separate lawsuit), a total of 28 states are now challenging the constitutionality of the ACA in federal court. (It should be noted, though, that in a handful of these states--such as Washington--there is a disagreement within the state's own executive branch as to whether the state should be challenging the Act.)
UPDATE: You can access the plaintiffs' motion here. And you can access their second amended complaint here.
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,
TONY WEST
Assistant Attorney General
IAN HEATH GERSHENGORN (admitted pro hac vice)
Deputy Assistant Attorney General
NEIL H. MacBRIDE
United States Attorney
By: /s/ Jonathan H. Hambrick
JONATHAN H. HAMBRICK, VSB # 37590
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.)
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,
TONY WEST
Assistant Attorney General
IAN HEATH GERSHENGORN (admitted pro hac vice)
Deputy Assistant Attorney General
NEIL H. MacBRIDE
United States Attorney
By: /s/ Jonathan H. Hambrick
JONATHAN H. HAMBRICK, VSB # 37590
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.)
Subscribe to:
Posts (Atom)