Deadline TODAY for 11CA En Banc Petition


By Hadley Heath

According to the 11th Circuit rule 35-2:

"A petition for en banc rehearing must be filed within 21 days of entry of judgment, except that a petition for en banc rehearing in a civil appeal in which the United States or an agency or officer thereof is a party must be filed within 45 days of entry of judgment. Judgment is entered on the opinion filing date." (emphasis mine)

This means that after a ruling comes down in the 11th Circuit from a panel of three judges, the "losing" party has 21 days to file for an en banc rehearing of the case (if they wish).  This time period is extended to 45 days for the federal government.  On August 12, a panel ruled 2-1 in favor of Florida and the 25 other states that are suing the Department of Health and Human Services over ObamaCare.  If the federal government wants an en banc rehearing, their 45 days are up today.

Experts generally agree that an en banc trial in the 11th Circuit wouldn't offer the defendant-appellants much better chances of winning their case at this level.  Perhaps the only thing they stand to gain from a full-bench retrial is to further delay an inevitable Supreme Court trial. 

This would be a decidedly political move, since there's a chance the defendants could push a SCOTUS ruling back as late as post-November 2012.  But regardless of how the SCOTUS will rule (and no one knows what will happen!), the sooner the better.  Americans want an answer on this; our health care system, millions of jobs, and the future of Commerce Clause litigation hang in the balance.

Keep your eyes pealed today for news about an en banc petition; we're all better off if there is none.


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