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Halbig v. Burwell – En banc oral argument scheduled for December 17

As you may recall, a DC Circuit panel held that the Affordable Care Act makes federal premium tax credits available to taxpayers only in States where the State has established an exchange – which is what the ACA literally provides. On the same day, the Fourth Circuit issued a contrary decision in King v. Burwell, accepting the government’s argument that where HHS sets up an exchange in a State, that is a State exchange. The same argument is being made by the appellant (the government lost in District Court) in Oklahoma ex rel. Scott Pruitt v. Burwell, which is pending before the 10th Circuit. Immediately following the contradictory decisions of DC Circuit and Fourth Circuit panels, the DC Circuit, en banc, vacated the panel decision and set the case down for rehearing en banc. The 4th Circuit King plaintiffs have filed a petition for cert. which has not been acted upon and likely won’t be favorably acted on unless a split were to arise in the Circuits. Given recent appointments to the DC Circuit and the fact that only active judges sit on the en banc court, it is likely that the full court will reach the same result as the Fourth did. The Tenth is another story altogether, so continue to watch this space for developments.