Late yesterday, the U.S. 11th Circuit Court of Appeals handed the Obama DOJ yet another defeat in the Obamacare litigation—this time related to how quickly the appeal will proceed. Readers of this blog know that the Obama DOJ has been attempting to slow walk its appeal of Judge Vinson’s ruling. Judge Vinson stayed his decision striking down the whole of Obamacare, but only if the DOJ filed for expedited review in the 11th Circuit. The DOJ did file for expedited review on Wednesday, but as Todd Gaziano noted at the time, “the Administration’s motion to expedite the appellate briefing requests a timeline that is still too slow,” and the motion also claimed that if opposing counsel appealed any of the claims they lost below, then the Justice Department would need more time for briefing.
How slow was the proposed briefing schedule? As the lawyers for the states and the NFIB noted in their response, the DOJ’s “proposed briefing schedule is identical to the ordinary, non-expedited briefing periods” set forth in the federal rules. So much for expedition.
The states and the NFIB recommended a briefing schedule that would actually be expedited, and filed a petition asking that the entire 11th Circuit hear the case the next time that the full court sits en banc, which is the week of June 6. Full court review (en banc) is discretionary, and while the parties may request it after a three-judge panel has decided a case, parties may also request en banc review before the case goes to a panel. Should the 11th Circuit grant en banc review, that would remove one intermediate, discretionary level of appellate review, and could permit the Supreme Court to hear the case sooner.
The 11th Circuit responded to the DOJ’s motion for expedited review Friday. Not only did it reject the DOJ’s slow-walk schedule, but it implemented an even more expedited schedule than the one requested by Obamacare’s challengers! All briefs are scheduled to be filed by May 25, 2011. The court also rejected the government’s contention that it would need more time if the states brought a cross appeal. And the court was firm in its schedule, clarifying that “[n]o extensions of this briefing schedule will be granted.” Finally, the court noted that the request for full court review was still pending, and that the resolution of that motion would not affect the expedited briefing schedule.
This is just the latest example of courts seeing through the DOJ’s blatant attempts to manipulate the timing of this case. First, in a transparent stalling tactic, the DOJ filed a spurious motion to “clarify” the already abundantly clear decision of Judge Vinson, who saw through the DOJ’s shenanigans, issued a stay of his ruling, but required the government to file for expedited review to keep the stay. The government then filed a motion for expedited review that did not actually, well, expedite the briefing schedule, and sought to add conditions for the favor it granted in offering to abide by an ordinary briefing schedule. The 11th Circuit rejected the schedule and the conditions, and required its own, much faster briefing calendar.
Whether the 11th Circuit decides to hear the case en banc or not is yet to be decided, but its decision yesterday sends a strong signal that it will not tolerate the kind of gamesmanship and delaying tactics that the DOJ has been using to date.
