D.C. Circuit

  • September 5, 2014
    Guest Post

    by Brianne Gorod, Appellate Counsel for the Constitutional Accountability Center.

    This post originally appeared on the Constitutional Accountability Center's Text & History Blog.

    Ever since three-judge panels on the Fourth Circuit and the D.C. Circuit issued conflicting rulings in July on the availability of tax credits under the Affordable Care Act (ACA), the opponents of the law have been trying to rush their case to the Supreme Court.  That’s where they apparently think they have their best shot at succeeding in what D.C. Circuit Judge Harry Edwards called their “not-so-veiled attempt to gut” the law.  But thanks to an Order just issued by the full D.C. Circuit, their chances of getting the case in front of the Supremes just got a lot lower.

    The two cases involved are just the latest salvo in the ACA opponents’ continuing efforts to kill the ACA by any means possible.  In these challenges, the opponents of the law argue that the ACA, which was enacted to make health insurance affordable for all Americans, doesn’t permit people to receive the tax credits that actually make it affordable if they purchase their insurance in one of the 36 states that have opted to let the federal government run their Exchange.  Thus, they argue, an IRS rule confirming that tax credits are available to all qualifying Americans, regardless of where they live, is invalid under the statute. 

    It’s an argument that shouldn’t hold water in any court.  The opponents of the law rest their argument on one four word phrase—“established by the State”—but ignore the text of the rest of the 900-some page statute that makes it clear that federally-facilitated Exchanges are functionally the same as state-established Exchanges.  Even Justice Scalia should recognize that’s no way to interpret a statute.  As he explained just last year, “the words of a statute must be read in their context and with a view to their place in the overall statutory scheme."  Here, reading the words of the statute in context makes clear that tax credits should be available to all qualifying Americans.  Fourth Circuit Judge Andre Davis called the argument made by the law’s opponents “tortured” and “nonsensical.” 

  • September 4, 2014

    by Caroline Cox

    The U.S. Court of Appeals for the D.C. Circuit ruled this morning that it will hold an en banc rehearing in Halbig v. Burwell, the case dealing with the legality of some Affordable Care Act subsidies, reports Zoe Tillman in The National Law JournalJeffrey Toobin explains in The New Yorker how the fight in Halbig is also a fight over whether textualism should serve as a dominant legal theory.

    Ben Protess reports in The New York Times on the departure of Tony West from the Department of Justice. West delivered remarks at the 2013 ACS National Convention.

    In Politico, David Rogers reports on a case between the Justice Department and immigrant-rights groups over whether illegal immigrants should be provided counsel.

    U.S. District Court Judge Martin Feldman’s ruling to uphold Louisiana’s ban on same-sex marriages carefully appeals to the Supreme Court’s swing voter, argues Garrett Epps in The Atlantic.

    In Slate, Dahlia Lithwick writes on what the justice system should learn from the recent ruling that, thirty years after their convictions in a 1983 murder case, two mentally disabled half-brothers are innocent. 

  • August 20, 2014
    Guest Post

    by Robert N. Weiner, Litigation Partner, Arnold & Porter LLP

    *This post originally appeared on Balkinization

    Sometimes, lawyers are fortunate that an opponent does not get the opportunity to reply to their argument and they get the last, unchallenged, word on an issue. The Halbig case [D.C. Circuit Court panel opinion negatively impacting the federal government’s effort to help low-income persons obtain health care insurance] presents a prime example. On Monday, the plaintiffs seeking to nullify a key provision of the Affordable Care Act filed their response to the Government’s petition for rehearing en banc. The response takes full-- albeit not fair -- advantage of being the last word before the D.C. Circuit considers the petition.

    To begin with, the Halbig plaintiffs never cite Rule 35 of the Federal Rules of Appellate Procedure, even though it is the controlling authority regarding en banc review. The Rule expressly recognizes that rehearing en banc is appropriate in order to avoid intercircuit conflicts, and that provision is directly applicable hereCurrently, there is a conflict between Halbig in the D.C. Circuit, denying tax subsidies to help low income families afford insurance in states with a Federal Exchange, and King in the Fourth Circuitallowing such subsidies. A grant of en banc review by the D.C. Circuit will automatically vacate the Halbig decision ending the intercircuit conflict and presenting the full court the opportunity to avoid one altogether if the D.C. Circuit ultimately agrees with the Fourth. If there is no conflict, the Supreme Court will have no compelling reason to take this rather narrow, yet overblown issue of statutory interpretation.

    The absence of a Government opportunity to reply may also have loosened the reins on the discussion of case law in the Halbig response. Arguing against rehearing en banc, the Halbig plaintiffs cite instances where the D.C. Circuit has denied such review in important cases. But the response fails to point out that most of those cases predate the amendment of Rule 35 in 1998 expressly identifying avoidance of a circuit split as a basis for en banc review and emphasizing in the Advisory Committee Notes the particular importance of such review in cases like this one, where rehearing could resolve the conflict. D.C. decisions that came before that change in Rule 35 shed no light on whether en banc review is appropriate on this ground.

    Of the post-1998 D.C. cases cited by the Halbig plaintiffs, one involved a situation where the Supreme Court had already granted cert on the issue. The other cases cited presented no conflict. Thus, none of these cases resolves whether en banc review is appropriate here, where the D.C. Circuit’s panel opinion is the source of the intercircuit split.

  • October 30, 2013

    by Rebekah DeHaven

    There are 874 federal judgeships in the United States. Of these, 91 are currently vacant, and there are 20 future vacancies. Thirty-seven of these vacancies are in districts that have been declared judicial emergencies. There are 51 nominees to fill these vacancies, some much closer to confirmation than others.

    These figures mean that 10 percent of our federal judiciary is currently empty. Instead of working to fill these vacancies, some lawmakers are explicitly attempting to reduce the number of judgeships nationwide, and promoting the rhetoric that there are more judges than the U.S. needs to administer its justice system. 

    In April, Senator Grassley introduced the “Court Efficiency Act of 2013,” which proposes reducing the number of seats on the D.C. Circuit from eleven to eight. Although Senator Grassley and others suggest that there are too many judges, the Judicial Conference and members of the federal judiciary have indicated just the opposite. In fact, the resounding message has been that the courts are struggling to keep up. In its March 2013 report the Judicial Conference suggested the addition of 70 permanent and 21 temporary judgeships, as well as converting eight temporary judgeships to permanent positions.

  • October 22, 2013

    by Jeremy Leaming

    After more than four years of obstructing President Obama’s judicial nominations and causing the vacancies on the federal bench to hover at or above 80, right-wing organizations are ratcheting up their efforts to re-write history. The Heritage Foundation, proclaims that no obstruction has occurred and that Obama is remaking the federal bench, but asks us to ignore what unfolded during his first term. The lesser-known Judicial Crisis Network (JCN) is out with a slideshow of 13 graphics that aims to support an effort of Republican senators to shrink the size of the U.S. Court of Appeals for the District of Columbia Circuit, where vacancies have languished for years on end.

    Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa) has long sought to chop seats from the D.C. Circuit, widely considered one of the most powerful federal appeals courts in the land, claiming it has a flimsy workload. Grassley and his fellow Republicans successfully kept Obama from filling one of the D.C. Circuit’s longstanding vacancies until the start of his second term. There are still three vacancies on the 11-member court.

    When Obama announced three nominations to those vacancies earlier this year, Grassley introduced a bill aimed at cutting – you guessed it – three seats from the D.C. Circuit, arguing the Circuit’s current judges had light caseloads and there was no need for more judges. But as the Constitutional Accountability Center (CAC) and others have noted, Grassley’s claims about the D.C. Circuit ignore reality. The D.C. Circuit hears far more complex and constitutionally weighty matters than the other federal appeals court circuits. 

    The JCN is headed by Carrie Severino, an attorney devoted like the Tea Party to destroying health care reform and mild regulations (Dodd-Frank) of the financial industry. The group's “infographic” containing 13 slides purports to show that the D.C. Circuit “is the most underworked court in the country.” It is, as People For The American Way’s blog notes, a slideshow “recycling old, discredited arguments ….”

    Earlier this year when Grassley launched his latest attempt to slash judgeships from the D.C. Circuit, he claimed, “No matter how you slice it, the D.C. Circuit ranks last or almost last in nearly every category that measures workload.” That statement caught the attention of The Washington Post’s “The Fact Checker,” which concluded it was deserving of “Two Pinocchios,” meaning it contained “significant omissions and/or exaggerations.”