Friday, August 08, 2014

En Bunk Redux

Guest Blogger

Rob Weiner

Professor Adler's response to my previous post continues a coordinated effort to preemptively delegitimize en banc review of the Halbig case by the DC Circuit.  The effort appears to reflect the recognition that Supreme Court review of Halbig cannot be justified on the basis of a conflict among the courts of appeals if the conflicting decision has been vacated by a grant of rehearing en banc.  The grant of certiorari in such a situation would be wholly inconsistent with long-standing Supreme Court practice.  Thus, we hear denunciations of a DC Circuit decision to grant review as political before before the full Court has decided anything.

Most of Professor Adler’s latest contribution does not merit reply.  However, I do want to correct the record on two points.

First, Professor Adler accuses me of "sleight of hand" in calling attention to the DC Circuit's sua sponte order staying the judgment in Halbig until disposition of any request for rehearing. He notes that under Federal Rule of Appellate Procedure 41(b), the mandate of the Court does not issue until the time for filing a petition for rehearing has passed or the full Court has acted on a petition.  Precisely. That is why it was unnecessary for the Court to issue an order to that effect.  In my experience, such orders are not standard practice, and therefore this one raises the plausible inference that the panel majority anticipated the likely demise of its aberrant decision.

Second, Professor Adler’s suggestion that the DC Circuit rarely grants en banc review misses the point – actually, several points, but I will address only one of them here.  Rule 41 was amended in 1998 (after the opinion of Judge Edwards on which Professor Adler relies, by the way) to add inter-circuit conflicts as a ground to reconsider a decision en banc.  The Advisory Committee Notes on that change emphasized that en banc review is particularly important in cases where “a panel decision creates a conflict,” as opposed to cases where the panel merely takes sides in an existing conflict.  The reason for the Advisory Committee’s emphasis is clear. Where, as here, the panel decision engenders the conflict, en banc reconsideration can make that conflict go away.  That result may derail Professor Adler’s plans to gut the ACA, but avoiding an inter-circuit conflict is an appropriate basis for the DC Circuit to grant en banc review.

This is probably more information on the intricacies of rehearing  en banc than almost anyone cares to know. But, for the reasons noted above, I suspect it will not be the last word.   

Rob Weiner, formerly Associate Deputy Attorney General in the United States Department of Justice, is a partner at Arnold & Porter LLP. You can reach him by e-mail at robert.weiner at

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