Appellate Court En Banc Hearings

The DC Circuit a short time ago held in Halbig v Burwell that Federal regulations regarding Federal health plan exchanges violate Obamacare’s plain language: Federal subsidies, contrary to those regulations, are available only to health plan holders who got their plans through State-run health plan exchanges.

Adam White, in a recent Wall Street Journal piece in the context of that ruling and the Federal government’s subsequent appeal to the DC Circuit to rehear the case en banc, noted a couple of things.

One is how rare en banc (re)hearings are, especially for the DC Circuit:

The DC Circuit rehears virtually none of its cases. Each year the court’s three-judge panels make roughly 500 rulings, but the court averages roughly one en banc rehearing. This year has produced a bumper crop: two. The previous year: zero.

Then he got into why this is so.

…the court’s high standard, found in the Federal Rules of Appellate Procedure: en banc rehearing “is not favored and ordinarily will not be ordered” unless the case satisfies one of two standards. First, an en banc rehearing may be needed to “secure or maintain uniformity of the court’s decisions.” A three-judge panel is not allowed to overrule old precedents, even when precedents are in conflict; only the full court can do so, en banc.

Second, en banc rehearing is appropriate for what the federal appellate rules call cases of “exceptional importance.” For the DC Circuit, this standard has been met almost exclusively by cases raising serious constitutional issues. Over the past decade seven of the nine cases reheard en banc raised difficult questions of constitutional law, such as the rights of Guantanamo detainees or of terminally ill patients.

Cases that will substantially affect the court’s own workings also can be deemed of “exceptional importance.” In 2011, the court sat en banc to decide whether taxpayers could file lawsuits challenging IRS procedures for obtaining tax refunds.

Halbig was a straightforward application of the Obamacare law as it was written. That the 4th Circuit saw this differently isn’t relevant; the DC Circuit can only rehear its own cases, not those of sister appellate courts. There’s no precedent conflict here. Some might argue that the question has Constitutional significance, and I’d agree with them. However, neither set of litigants raised any sort of Constitutional question, and the case and the ruling turned on the law itself. There’s no Constitutional controversy here, either.

What about the case’s “exceptional importance?” Judge Harry Edwards, who dissented in Halbig, wrote this in a 1987 case [Edwards’ emphasis]:

[N]o judge agrees with all of the decisions handed down in the circuit….” But if each judge called for en banc rehearing simply to overturn a panel decision with which he personally disagrees, it would do “substantial violence to the collegiality that is indispensable to judicial decision-making.” Rather, en banc review must be reserved for “the rarest of circumstances… [with] real significance to the legal process.”

In the context ofHalbig, it’ll be instructive to see whether the DC Circuit’s newly appointed judges are appellate judges who happen to be Democrats or whether they are Democrats who happen to be appellate judges.

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