Wednesday, February 2, 2011

No U.S. application for a stay as of yet

There is no entry on the PACER docket for case number 3:10-CV-00091 in the United States District court for the Northern District of Florida indicating that the United States has sought a stay of the judgment pending appeal in Florida v. HHS. Nor is there any indication on PACER that the case has been docketed yet by the United States Court of Appeals for the Eleventh Circuit. Hence, we seem to be in a bit of limbo until the Department of Justice seeks a stay.

As best I can tell, the United States really needs a stay of the judgment--if not for technical legal reasons, at least for reasons of clarity and public relations. As we all have heard, several states are announcing that they now have no obligation to implement any aspects of the ACA. Moreover, various public officials and commentators are asserting that the federal government is acting unlawfully to the extent it is taking any steps to implement or enforce any aspect of the ACA.

Technically, this is incorrect. A declaratory judgment is just that: a declaration. Thus, it cannot really be violated in a strict legal sense. But in issuing a declaratory judgment and denying the plaintiffs their request for an injunction, Judge Vinson stated that, in circumstances such as this, declaratory relief is "the functional equivalent" of an injunction, meaning he fully expects the United States to respect his decision as if it were an injunction. Thus, in order to dispel any notion that it it flouting a binding judicial order, the DOJ almost certain needs to seek a stay.

Perhaps there are a range of strategic questions that the Department's civil appellate lawyers need to sort out, maybe with some help from the White House Counsel's office, as well as the Office of the Solicitor General, before seeking the stay. Goodness knows, there are a whole lot of moving pieces here. But one would think that the U.S. really needs the stay, and it would apply for it sooner rather than later.