Tuesday, January 4, 2011

The current status of Virginia v. Sebelius (and what it might suggest)

Shortly after Judge Hudson handed down his opinion declaring the individual insurance mandate unconstitutional, the United States made clear that it did not share Virginia's interest in seeking expedited review from the Supreme Court. Instead, it indicated its intent to seek review first in the United States Court of Appeals for the Fourth Circuit.

As of now, nothing more has happened. The first step in appealing a district court judgment, according to the Federal Rules of Appellate Procedure, is to file a notice of appeal in the appropriate district court. As of today, the United States has not filed such a notice. The deadline for doing so, per Rule 4(a)(1)(B) of the F.R.A.P., is 60 days after the entry of judgment, or February 11. (The general rule in civil cases is 30 days, but it is 60 days in any case in which the United States is a party.) Thus, it could be another month before the case is even docketed at the Fourth Circuit.

This is not terribly important in itself. But it potentially suggests a few things:

* Given that Liberty University v. Geithner is already set for briefing in the Fourth Circuit (see the schedule below), the United States could ask that the proceedings in Virginia v. Sebelius be stayed pending the resolution of Liberty University. The two cases raise precisely the same legal question, though one has been less politically salient, at least to this point.

* Of course, it is unclear how Virginia, or the Fourth Circuit, would react to a stay request. One would think that the Virginia Attorney General would prefer his case to be the one that goes forward. But the Fourth Circuit must do something to coordinate the two cases; it would be quite awkward to two separate Fourth Circuit panels to be deciding precisely the same legal issue simultaneously, potentially producing a split within the circuit itself.

* The United States's general failure to move quickly on its appeal seems to suggest that it thinks it stands to benefit from extending these proceedings as long as possible. That is, the Department of Justice may well believe  (with some reason) that the longer Americans have to live with health care reform and its (albeit partial) implementation, the more popular it will become, and thus the less likely courts will be to invalidate it.

* And perhaps what the United States anticipates is that, instead of granting a stay, the Fourth Circuit will consolidate the two cases or arrange for them to be argued on the same day before the same panel. If it does so, it will then be the briefing schedule of the later case that will determine the schedule for both. And thus, stringing out the appeal in Virginia v. Sebelius for as long as possible would have the effect of slowing down both appeals -- which, again, seems to be part of DOJ's strategy.

* Either way, the United States would achieve a strategic victory of sorts. If it gets a stay of Virginia v. Sebelius, it would remove Virginia from the case actually decided by the Fourth Circuit. And if the cases are functionally consolidated, it would push back the timing of the Fourth circuit's decision substantially.