Here they are:
* Mountain States Legal Foundation, accessible here.
* Justice and Freedom Fund, accessible here.
* Kurt Rohlfs, accessible here.
Monday, April 4, 2011
Cato Institute amicus filed
Another amicus curiae brief was just filed at the Fourth Circuit: that on behalf of the Cato Institute, the Competitive Enterprise Institute, and Professor Randy E. Barnett. You can access the brief here.
Four amicus briefs supporting Virginia
Thus far, the Fourth Circuit has electronically docketed four amicus curiae briefs filed in support of the Commonwealth of Virginia in Virginia v. Sebelius. Those four have been submitted by:
* The Pacific Legal Foundation, Matthew Sissel (the named plaintiff in an ACA case currently before the District Court for the District of Columbia), and Americans for Free Choice in Medicine, which you can access here.
* The Washington Legal Foundation and a group of Constitutional Law Scholars, which you can access here.
* The American Center for Law and Justice, 49 Members of the House of Representatives, and the Constitutional Committee to Challenge the President and Congress on Health Care, which you can access here.
* And the Association of American Physicians and Surgeons, which you can access here.
There are sure to be several more filed over the course of the day.
* The Pacific Legal Foundation, Matthew Sissel (the named plaintiff in an ACA case currently before the District Court for the District of Columbia), and Americans for Free Choice in Medicine, which you can access here.
* The Washington Legal Foundation and a group of Constitutional Law Scholars, which you can access here.
* The American Center for Law and Justice, 49 Members of the House of Representatives, and the Constitutional Committee to Challenge the President and Congress on Health Care, which you can access here.
* And the Association of American Physicians and Surgeons, which you can access here.
There are sure to be several more filed over the course of the day.
Important correction: Amicus briefs supporting the United States due this Friday in Florida v. HHS
According to the briefing schedule set out by the Eleventh Circuit in this March 11 order, the United States was to file its brief by today, April 4. Under Federal Rule of Appellate Procedure 29(e), "[a]n amicus curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed." The court, of its own motion, can set a date specific for amicus briefs, and some courts have done so in some of the ACA cases. But the Eleventh Circuit's scheduling order did not; rather, it only specified the due dates for the parties.
Given the briefing schedule set out in the order, it was assumed (by me, at least) that amicus briefs supporting the United States would be due a week from today, April 11. But because the United States filed its brief this past Friday (three days early), I believe the amicus briefs supporting to the United States are now due three days earlier as well--meaning this Friday, April 8.
If anyone out there knows this to be incorrect, please let me know.
Given the briefing schedule set out in the order, it was assumed (by me, at least) that amicus briefs supporting the United States would be due a week from today, April 11. But because the United States filed its brief this past Friday (three days early), I believe the amicus briefs supporting to the United States are now due three days earlier as well--meaning this Friday, April 8.
If anyone out there knows this to be incorrect, please let me know.
Amici supporting Virginia due today
All amicus curiae briefs supporting Virginia (the designated appellee) in Virginia v. Sebelius are due today at the Fourth Circuit. (Some, in fact, have already been filed.) We will post them here as they become available.
Friday, April 1, 2011
U.S. files its opening brief in Florida v. HHS
The Department of Justice has filed its brief for the appellants in Florida v. HHS in the United States Court of Appeals for the Eleventh Circuit. (This is actually one workday early, as the brief was not due until Monday.) As in Thomas More Law Center v. Obama, Virginia v. Sebelius, and Liberty University v. Geithner, the name at the top of the counsel list is that of Neal Kumar Katyal, Acting Solicitor General.
You can access the United States's brief here.
The next deadline in the case is a week fromMonday, April 11 today, April 8, when amici curiae briefs in support of the United States are due.
You can access the United States's brief here.
The next deadline in the case is a week from
Thursday, March 31, 2011
U.S. files motion to dismiss in Oklahoma v. Sebelius
I missed this development from earlier this week.
On Monday, the United States filed a motion to dismiss in Oklahoma v. Sebelius, which is currently pending in the Northern District of Oklahoma. This case is nearly identical to Virginia v. Sebelius: Oklahoma has adopted a so-called "health care freedom law," the state has filed suit claiming that the minimum coverage provision is unconstitutional, and the state claims an injury-in-fact to its sovereignty from the conflict between the ACA and the state law.
The United States--echoing the justiciability portion of its brief in Virginia v. Sebelius recently filed in the Fourth Circuit--argues that Oklahoma lacks standing to challenge the individual mandate, and thus the case should be dismissed pursuant to Fed. R. Civ. Pro. 12(b)(1) (for want of jurisdiction). Here is th gist of the argument:
On Monday, the United States filed a motion to dismiss in Oklahoma v. Sebelius, which is currently pending in the Northern District of Oklahoma. This case is nearly identical to Virginia v. Sebelius: Oklahoma has adopted a so-called "health care freedom law," the state has filed suit claiming that the minimum coverage provision is unconstitutional, and the state claims an injury-in-fact to its sovereignty from the conflict between the ACA and the state law.
The United States--echoing the justiciability portion of its brief in Virginia v. Sebelius recently filed in the Fourth Circuit--argues that Oklahoma lacks standing to challenge the individual mandate, and thus the case should be dismissed pursuant to Fed. R. Civ. Pro. 12(b)(1) (for want of jurisdiction). Here is th gist of the argument:
You can access the motion to dismiss Oklahoma's complaint here.It has been settled for decades that a state may not sue the federal government to declare its citizens exempt from federal regulation. Nor may a state create standing simply by declaring that its citizens have rights that, in the abstract, conflict with federal law. Oklahoma’s challenge to the minimum coverage provision must be resolved instead in a live case that involves parties who have a concrete interest in the issue.
Timing at the Supreme Court
This is probably fairly obvious to anyone who has been following this litigation carefully. But with the recent scheduling of the leading cases for oral argument in the courts of appeals, it now seems clear--barring a significant, unforeseen event--that the Supreme Court will decide the matter during the October 2011 Term.
The reason is that, with now four cases to be heard by the courts of appeals on an expedited basis in May and June, the decisions from the circuits are likely to come down by the end of the summer. The losing side then has 90 days to file a petition for a writ of certiorari, and the winner 30 days to respond, at which point the petition will be calendared at the Supreme Court. (The loser can accelerate the schedule by filing the cert petition sooner.)
It now seems quite likely that at least one of these cases, and perhaps several, will generate petitions for certiorari soon enough for the Court to resolve them before mid-January 2012. (That is typically the cut-off between Terms; petitions granted after mid-January are typically argued the following autumn.) Thus, the timeline is such that the Court is likely to grant one of the cert petitions in late fall of this year, hear argument in the spring of 2012, and issue a decision by the end of June 2012.
Again, things can change, and this timeline depends on the courts of appeals issuing their decisions in a timely fashion following oral argument. But that seems likely. Which means June 2012--in the midst of the election season--is most likely when the Supreme Court will render its judgment on the ACA.
The reason is that, with now four cases to be heard by the courts of appeals on an expedited basis in May and June, the decisions from the circuits are likely to come down by the end of the summer. The losing side then has 90 days to file a petition for a writ of certiorari, and the winner 30 days to respond, at which point the petition will be calendared at the Supreme Court. (The loser can accelerate the schedule by filing the cert petition sooner.)
It now seems quite likely that at least one of these cases, and perhaps several, will generate petitions for certiorari soon enough for the Court to resolve them before mid-January 2012. (That is typically the cut-off between Terms; petitions granted after mid-January are typically argued the following autumn.) Thus, the timeline is such that the Court is likely to grant one of the cert petitions in late fall of this year, hear argument in the spring of 2012, and issue a decision by the end of June 2012.
Again, things can change, and this timeline depends on the courts of appeals issuing their decisions in a timely fashion following oral argument. But that seems likely. Which means June 2012--in the midst of the election season--is most likely when the Supreme Court will render its judgment on the ACA.
Sixth Circuit schedules oral argument in Thomas More Law Center v. Obama
Apparently it is a big day for scheduling oral arguments in the United States Courts of Appeals.
In addition to the Eleventh Circuit's order (described below), the Sixth Circuit today issued its notice of oral argument in Thomas More Law Center v. Obama. It will take place Wednesday, June 1, at 1:30 p.m. at the Potter Stewart Courthouse in Cincinnati, Ohio, before a three-judge panel. Per its regular practice, the court will release the identity of of the three judges drawn for the panel two weeks before the argument (that is, May 18) on its web site (www.ca6.uscourts.gov).
Thus, here is the current schedule for oral arguments in the courts of appeals:
May 10: Virginia v. Sebelius and Liberty University v. Geithner at the Fourth Circuit (Richmond).
June 1: Thomas More Law Center v. Obama at the Sixth Circuit (Cincinnati).
June 8: Florida v. HHS at the Eleventh Circuit (Atlanta).
Yet to be scheduled: Seven-Sky v. Holder (CADC), Baldwin v. Sebelius (CA9), and N.J. Physicians v. President (CA3).
You can access the Sixth Circuit's notice here.
In addition to the Eleventh Circuit's order (described below), the Sixth Circuit today issued its notice of oral argument in Thomas More Law Center v. Obama. It will take place Wednesday, June 1, at 1:30 p.m. at the Potter Stewart Courthouse in Cincinnati, Ohio, before a three-judge panel. Per its regular practice, the court will release the identity of of the three judges drawn for the panel two weeks before the argument (that is, May 18) on its web site (www.ca6.uscourts.gov).
Thus, here is the current schedule for oral arguments in the courts of appeals:
May 10: Virginia v. Sebelius and Liberty University v. Geithner at the Fourth Circuit (Richmond).
June 1: Thomas More Law Center v. Obama at the Sixth Circuit (Cincinnati).
June 8: Florida v. HHS at the Eleventh Circuit (Atlanta).
Yet to be scheduled: Seven-Sky v. Holder (CADC), Baldwin v. Sebelius (CA9), and N.J. Physicians v. President (CA3).
You can access the Sixth Circuit's notice here.
Eleventh Circuit denies petition for en banc hearing
The United States Court of Appeals for the Eleventh Circuit today denied the plaintiff-appellees' petition for initial hearing en banc in Florida v. HHS. Instead, the case will be heard (at least initially) by a three-judge panel.
The court also scheduled the matter for oral argument on June 8 in Atlanta at 9:30 a.m. Each side will be given a full hour for argument. (Recall that argument in the two Virginia cases will take place before the Fourth Circuit on May 10, and the argument in Thomas More Law Center before the Sixth Circuit will be held some time between May 30 and June 10.)
You can access today's order from the Eleventh Circuit here.
The court also scheduled the matter for oral argument on June 8 in Atlanta at 9:30 a.m. Each side will be given a full hour for argument. (Recall that argument in the two Virginia cases will take place before the Fourth Circuit on May 10, and the argument in Thomas More Law Center before the Sixth Circuit will be held some time between May 30 and June 10.)
You can access today's order from the Eleventh Circuit here.
Tuesday, March 29, 2011
Appellants file their reply brief in N.J. Physicians v. President
The plaintiff-appellants have filed their reply brief in New Jersey Physicians v. President of the United States, the case currently before the Third Circuit. You might recall that the District Court ruled in favor of the United States on extremely narrow, factbound grounds: that the plaintiffs had failed to allege specific facts sufficient to demonstrate a current or imminent injury-in-fact, and thus lacked standing. (Underscoring the narrowness of the holding, the court contrasted the plaintiffs' complaint with those in other cases in which the plaintiffs had alleged that they were currently having to save additional funds and forgo current purchases to afford minimally adequate health coverage in January 2014.) In other words, very little seems to be at stake in this case at this point (evidenced by the Solicitor General's decision not to write the DOJ's brief), though that could change once the standing issue is resolved. By then, though, the Supreme Court is likely to have resolved the matter by deciding one of the other cases.
You can find the reply brief here.
You can find the reply brief here.
Monday, March 28, 2011
Virginia's brief due today at the Fourth Circuit
The Commonwealth will be filing its brief today at the Fourth Circuit, and amici curiae supporting it are due next Monday. We will have them posted here as soon as they are available.
Thursday, March 24, 2011
Former SG Paul Clement to argue for the states in Florida v. HHS
Former Solicitor General Paul Clement, now a partner at King & Spalding, will argue on behalf of the plaintiff-appellees (the states, the NFIB, and the two private individuals) in Florida v. HHS at the Eleventh Circuit. This AP story has the news (sort of, at least, identifying him as "Peter Clement").
Clement is a terrific oral advocate (most recently arguing at the Supreme Court on behalf of the petitioner in Bond v. United States February 22, audio here). He also memorably faced off with former Solicitor General Seth Waxman in Boumediene v. Bush (audio here)--in my humble opinion, one of the best argued cases in the modern history of the Court.
There are two potential implications here: (1) the United States is in for a real run for its money, if that was not already clear; and (2) this makes it marginally more likely that Florida v. HHS is the ACA case on which the Supreme Court grants cert.
Clement is a terrific oral advocate (most recently arguing at the Supreme Court on behalf of the petitioner in Bond v. United States February 22, audio here). He also memorably faced off with former Solicitor General Seth Waxman in Boumediene v. Bush (audio here)--in my humble opinion, one of the best argued cases in the modern history of the Court.
There are two potential implications here: (1) the United States is in for a real run for its money, if that was not already clear; and (2) this makes it marginally more likely that Florida v. HHS is the ACA case on which the Supreme Court grants cert.
Wednesday, March 23, 2011
Virginia's petition for certiorari scheduled for justices' conference of April 15
Within the last hour, the Supreme Court's docket sheet for Case No. 10-1014, Virginia v. Sebelius, was updated to include this entry:
DISTRIBUTED for Conference of April 15, 2011.
Thus, the Justices are scheduled to discuss the petition at that conference. And the result of their deliberations will most likely be known by later that afternoon (if they decide to grant) or the following Monday, April 18, if they decide to deny. (Again, there could be a delay beyond this if one of the justices decides to write a statement or dissent from the denial.)
DISTRIBUTED for Conference of April 15, 2011.
Thus, the Justices are scheduled to discuss the petition at that conference. And the result of their deliberations will most likely be known by later that afternoon (if they decide to grant) or the following Monday, April 18, if they decide to deny. (Again, there could be a delay beyond this if one of the justices decides to write a statement or dissent from the denial.)
D.C. Circuit sets briefing schedule in Seven-Sky v. Holder
This past Thursday, the United States Court of Appeals took two actions in Seven-Sky v. Holder: (1) it denied the plaintiffs' petition for initial hearing en banc, and (2) it granted in part and denied in part the plaintiffs' unopposed motion to expedite review. In the order taking the second action, the court set down this schedule for the briefing of the case:
May 16: Plaintiff-Appellants’ brief and appendix due
May 23: Amici curiae briefs in support of appellants (if any) due
June 27: United States brief as appellee due
July 5: Amici curiae briefs in support of United States (if any) due
July 25: Plaintiff-appellants’ reply brief
September: Oral argument before a three-judge panel
This schedule means the case will be about four months behind the two Virginia cases in the Fourth Circuit, and roughly three months behind the cases in the Sixth and the Eleventh Circuits. As a result, it seems unlikely to be the one on which the Supreme Court grants certiorari.
May 16: Plaintiff-Appellants’ brief and appendix due
May 23: Amici curiae briefs in support of appellants (if any) due
June 27: United States brief as appellee due
July 5: Amici curiae briefs in support of United States (if any) due
July 25: Plaintiff-appellants’ reply brief
September: Oral argument before a three-judge panel
This schedule means the case will be about four months behind the two Virginia cases in the Fourth Circuit, and roughly three months behind the cases in the Sixth and the Eleventh Circuits. As a result, it seems unlikely to be the one on which the Supreme Court grants certiorari.
Tuesday, March 22, 2011
Virginia files it cert reply brief
The Commonwealth of Virginia has filed its reply brief in support of its petition for a writ of certiorari before judgment at the Supreme Court. Lyle Denniston of SCOTUSblog has this coverage of the filing. And you can access the reply brief here.
UPDATE: The Supreme Court has yet to schedule Virginia's petition for a particular conference. But the timing indicates that it should be the Friday conference of April 1.
UPDATE: The Supreme Court has yet to schedule Virginia's petition for a particular conference. But the timing indicates that it should be the Friday conference of April 1.
Friday, March 18, 2011
U.S. files response to petition for en banc review in Florida v. HHS
The United States has filed its response to the plaintiffs' petition for initial en banc review in Florida v. HHS. You can access the response here.
DOJ states that it stands ready for initial en banc review, but that it does not believe such review is warranted in this case. It makes two basic points:
* Initial en banc review is generally only warranted when circuit precedent would plainly foreclose the relevant claims, precedent that can only be overruled by an en banc panel. There is no such precedent here.
* Plaintiffs have stated that their principal objective in seeking initial en banc review is to expedite the case, but it is unclear that an initial en banc hearing will accomplish this. Indeed, the case could get to the Supreme Court most quickly by the route of a three-judge panel decision and then up to the Court through a writ of certiorari.
A decision from the Eleventh Circuit as to whether to grant the petition could come any day now.
DOJ states that it stands ready for initial en banc review, but that it does not believe such review is warranted in this case. It makes two basic points:
* Initial en banc review is generally only warranted when circuit precedent would plainly foreclose the relevant claims, precedent that can only be overruled by an en banc panel. There is no such precedent here.
* Plaintiffs have stated that their principal objective in seeking initial en banc review is to expedite the case, but it is unclear that an initial en banc hearing will accomplish this. Indeed, the case could get to the Supreme Court most quickly by the route of a three-judge panel decision and then up to the Court through a writ of certiorari.
A decision from the Eleventh Circuit as to whether to grant the petition could come any day now.
Wednesday, March 16, 2011
A short programming note
Not that anyone reading this blog is actually depending on me for anything. But I thought I should note that I will be sort of occupied for the next few days, beginning shortly after 9:00 a.m. PDT tomorrow. It is a sort of religious or spiritual period in our household. And I will be attending to "worship services," so to speak. (That is, so long as I can figure out where TruTV, TNT, and TBS are within the DirecTV package. It was much easier under the old March Madness offering.)
In short, posting will be scarce until Sunday evening. Thanks for your understanding.
In short, posting will be scarce until Sunday evening. Thanks for your understanding.
Tuesday, March 15, 2011
A quick primer on the Supreme Court's consideration of Virginia's petition for certiorari before judgment
For those of you with actual lives (who therefore do not follow the workings of the justices as closely as some of us), here is a quick overview of the process going forward:
1. There is no obligation to file a reply brief at the certiorari stage, though Virginia is welcome to. It can file it at any time, though the petition will be distributed to the justices within ten days of the filing of the brief in opposition. It should only respond to points made in the DOJ's brief in opposition.
2. The clerk of the Court will distribute the petition, the brief in opposition, and the reply brief (if any) within ten days of the filing of the BIO. Paid petitions are typically circulated on Wednesdays. Thus, this petition should be distributed next week.
3. One of the justices' clerks in the cert pool will then have until the next Thursday (March 24) to complete his or her pool memo on the petition. One of Justice Alito's clerks will examine it as well.
4. By the following Monday (March 28), the case will likely have been "listed" for discussion at the justices' next conference. Thus, the justices would most likely consider the petition at their conference of Friday, April 1. (Perhaps fitting, depending on your perspective.)
5. Finally, if all goes according to normal procedure, the Court's disposition of the petition would become public in the Court's subsequent order list, released at 10:00 a.m., Monday, April 4. (If the Court decided to grant the petition, and if it were planning to expedite argument and its decision in the case, it might make its decision to grant review the afternoon of the conference, April 1. But if the Court were to deny the petition, or grant and plan to hear argument in the fall, its decision would be released on the April 4 order list.)
6. If the petition is scheduled for the April 1 conference, but the Court does not make its decision public by April 4, this will mean that the case has been "re-listed." This happens when either the Court is not fully decided on what it wants to do with the petition (say, three justices have voted to grant but one or more are still undecided), or if one of the justices is preparing a writing on the denial of the petition--a dissent from or a "statement regarding" the denial of cert.
So this is what lies ahead in the next three weeks.
1. There is no obligation to file a reply brief at the certiorari stage, though Virginia is welcome to. It can file it at any time, though the petition will be distributed to the justices within ten days of the filing of the brief in opposition. It should only respond to points made in the DOJ's brief in opposition.
2. The clerk of the Court will distribute the petition, the brief in opposition, and the reply brief (if any) within ten days of the filing of the BIO. Paid petitions are typically circulated on Wednesdays. Thus, this petition should be distributed next week.
3. One of the justices' clerks in the cert pool will then have until the next Thursday (March 24) to complete his or her pool memo on the petition. One of Justice Alito's clerks will examine it as well.
4. By the following Monday (March 28), the case will likely have been "listed" for discussion at the justices' next conference. Thus, the justices would most likely consider the petition at their conference of Friday, April 1. (Perhaps fitting, depending on your perspective.)
5. Finally, if all goes according to normal procedure, the Court's disposition of the petition would become public in the Court's subsequent order list, released at 10:00 a.m., Monday, April 4. (If the Court decided to grant the petition, and if it were planning to expedite argument and its decision in the case, it might make its decision to grant review the afternoon of the conference, April 1. But if the Court were to deny the petition, or grant and plan to hear argument in the fall, its decision would be released on the April 4 order list.)
6. If the petition is scheduled for the April 1 conference, but the Court does not make its decision public by April 4, this will mean that the case has been "re-listed." This happens when either the Court is not fully decided on what it wants to do with the petition (say, three justices have voted to grant but one or more are still undecided), or if one of the justices is preparing a writing on the denial of the petition--a dissent from or a "statement regarding" the denial of cert.
So this is what lies ahead in the next three weeks.
Subscribe to:
Posts (Atom)