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.