House v. Burwell - Motion To Hold in Abeyance

No.
16-5202
____________________
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________________
UNITED STATES HOUSE OF REPRESENTATIVES,
Plaintiff Appellee,
v.
SYLVIA M. BURWELL, in her official capacity as Secretary of Health and
Human Services; JACOB J. LEW, in his official capacity as Secretary of the
Treasury,
Defendants Appellants.
____________________
On Appeal from a Final Order of the U.S. District Court for the District of
Columbia (No. 1:14-cv-01967) (Hon. Rosemary M. Collyer, U.S. District Judge)
____________________
APPELLEES MOTION TO HOLD BRIEFING IN ABEYANCE OR, IN
THE ALTERNATIVE, TO EXTEND THE BRIEFING SCHEDULE
Appellee U.S. House of Representatives respectfully moves for entry of an
order temporarily holding in abeyance all briefing in this appeal, and directing the
parties to file by February 21, 2017, a joint status report indicating (a) whether the
parties are considering settlement or voluntary dismissal of the appeal and, if not,
(b) proposing a schedule for the remainder of the briefing in this matter.
Appellees representatives and the President-Elects transition team currently are
discussing potential options for resolution of this matter, to take effect after the
President-Elects inauguration on January 20, 2017. A temporary stay of the
briefing schedule will provide the President-Elect and his future Administration
time to consider whether to continue prosecuting or to otherwise resolve this
appeal. Appellants do not consent to this motion.
The Courts authority to stay proceedings is incidental to the power
inherent in every court to control the disposition of the causes on its docket with
economy of time and effort for itself, for counsel, and for litigants. Landis v.
North Am. Co., 299 U.S. 248, 254 (1936); see also Dietz v. Bouldin, 136 S. Ct.
1885, 1888-89 (2016) (noting courts inherent power. . . to manage its docket and
courtroom with a view toward the efficient and expedient resolution of cases.)
(citations omitted). Appellees request is not unusual. Parties frequently request
such abeyances in pending matters due to elections that produce changes in
Presidential Administrations and corresponding changes in Administration
policies. See, e.g., California et al. v. Envtl. Prot. Agency, No. 08-1178 (D.C. Cir.)
(staying briefing for several months to permit President Obama to reconsider
determinations promulgated by EPA under President Bush); Envtl. Prot. Agency v.
New Jersey, Pet. Cert., No. 08-512 (S. Ct.) (several extensions granted by the
Supreme Court; petition for writ of certiorari voluntarily dismissed approximately
two weeks after President Obamas election); New Jersey v. Envtl. Prot. Agency,
No. 08-1065 (D.C. Cir.) (case held in abeyance for seven years, beginning shortly
after President Obamas inauguration, to permit Administration to review
2
regulations promulgated under President Bush); Mississippi v. Envtl. Prot. Agency,

744 F.3d 1334, 1341 (D.C. Cir. 2013), Clerks Order No. 08-1200 (D.C. Cir. Mar.
19, 2009) (granting abeyance motion after President Obamas election to permit
agency to review and reconsider Bush Administration rule); Richard J. Lazarus,
The Transition and Two Court Cases, 26 The Environmental Forum 12, at 14 (Feb.
2009). 1
The relief sought by Appellee will not cause undue delay. The appeal is not
proceeding on an expedited basis, and the parties are still in the briefing process.
Appellants filed their opening brief on October 24, 2016, Appellees responsive
brief is currently due on December 23, 2016, and Appellants reply brief is due on
January 19, 2017. See Clerks Order (Nov. 2, 2016).
The relatively short stay requested by Appellee would provide the incoming
President and his appointed officials time to decide whether withdrawal or
settlement of the appeal is warranted. In light of public statements by the
President-Elect and his campaign,2 there is at least a significant possibility of a
Available at https://www.law.harvard.edu/faculty/rlazarus/docs/columns/
ELIDraftColumnProofJanFeb09Corrected.pdf
2
See, e.g., Healthcare Reform to Make America Great Again, available at
https://www.donaldjtrump.com/positions/healthcare-reform/ (proposing to replace
the Affordable Care Act with a series of reforms ready for implementation that
follow free market principles); Theodore Schleifer, Tami Luhby and Sophie
Tatum, CNN, Trump appears open to compromise on Obamacare, available at
http://www.cnn.com/2016/11/11/politics/donald-trump-obamacare3
meaningful change in policy in the new Administration that could either obviate
the need for resolution of this appeal or affect the nature and scope of the issues
presented for review.
Appellants will not be prejudiced by the requested abeyance period. The
status quo will be maintained during the abeyance period, because the district court
stayed its ruling, permitting Appellants to continue paying insurers the funds at
issue on a monthly basis. See J.A. 63-100, 101.
Finally, in light of the President-Elects public position, and the potential for
resolution of this matter, the requested abeyance will serve to prevent the
unnecessary and inefficient expenditure of valuable public resources in all three
branches of the federal government that could otherwise result from unnecessary
and premature briefing and judicial consideration of this appeal. Given the
significant likelihood of a change in Administration position, considerations of
judicial economy and the avoidance of unnecessary burdens on litigants justify a
delay in the briefing schedule.
Indeed, in closely analogous circumstances the Executive Branch has
already acknowledged the propriety of the type of relief sought by Appellee here.
In the ongoing legal challenge to the Administrations program of deferred action
interview/index.html (Either Obamacare will be amended, or repealed and

replaced[.]).
4
for certain undocumented aliens, which is on remand from the Supreme Courts 44 affirmance of the district courts preliminary injunction, the Department of
Justice recently joined in a joint motion to stay further proceedings in order to give
the incoming Administration an opportunity to consider its next steps: Given the
change in Administration, the parties jointly submit that a brief stay of any further
litigation in this Court before beginning any further proceedings would serve
judicial efficiency and economy so that the parties have a better understanding of
how they might choose to move forward. Joint Mot. to Stay Merits Proceedings
at 1, ECF 430, Texas et al. v. United States, No. 1:14-cv-254 (S.D. Tex. filed Nov.
18, 2016). Precisely the same approach is appropriate here as well.
In the alternative, Appellee respectfully requests a 45-day extension of time
in which to file its responsive brief, up to and including February 6, 2017. In view
of the considerations referenced above and the other pressing duties of the House
Office of General Counsel (which presently has a staff of only five attorneys),
particularly in this post-election period, good cause exists to extend the briefing
schedule. No cognizable prejudice would result to Appellants from such an
extension.
CONCLUSION
For the foregoing reasons, the Court should hold in abeyance all briefing in
this appeal, and direct the parties to file by February 21, 2017, a joint status report
5
indicating (a) whether the parties are considering settlement or voluntary dismissal
of the appeal, and, if not, (b) proposing a schedule for the remainder of the briefing
in this matter. In the alternative, the Court should grant Appellees request for a
45-day extension of the briefing schedule.
Respectfully submitted,
/s/Thomas G. Hungar
THOMAS G. HUNGAR, D.C. Bar No. 447783
General Counsel
TODD B. TATELMAN, VA Bar No. 66008
Associate General Counsel
ELENI M. ROUMEL, NY Bar No. 3978863
Assistant General Counsel
OFFICE OF GENERAL COUNSEL
U.S. HOUSE OF REPRESENTATIVES
219 Cannon House Office Building
Washington, D.C. 20515
(202) 225-9700 (telephone)
(202) 226-1360 (facsimile)
Counsel for Appellee United States House of
Representatives
November 21, 2016
CERTIFICATE OF SERVICE
I certify that on November 21, 2016, I filed the foregoing Appellees Motion
to Hold Briefing in Abeyance or, in the Alternative, to Extend the Briefing
Schedule via the Courts CM/ECF system, which I understand caused delivery of a
copy to all registered parties.
/s/Eleni M. Roumel
Eleni M. Roumel

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regulations promulgated under President Bush); Mississippi v. Envtl. Prot. Agency,

interview/index.html (Either Obamacare will be amended, or repealed and

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