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DC Circuit Grants Rehearing En Banc in Important Affordable Care Act Case

The D.C. Circuit today granted rehearing en banc in Halbig v. Burwell, No. 14-5018, an important case in which the plaintiffs challenge the validity of a regulation concerning health care "exchanges" under the Affordable Care Act.  The issue turns on the definition of an "exchange" under the Act.

Today's order vacates the 2-1 panel decision of July 22, 2014, which invalidated an IRS regulation making tax credits available to individuals who purchased health insurance through health care "exchanges" established by the federal government for persons living in states which had declined to establish state-operated exchanges.

The D.C. Circuit's panel decision invalidating the regulation came on the same day that the Fourth Circuit had issued a decision upholding the validity of the same regulation in King v. Burwell, 4th Cir. No. 14-1158, setting up a direct circuit conflict.  

The losing plaintiffs in the Fourth Circuit wasted no time; they filed a petition for a writ of certiorari only nine days after the Fourth Circuit's adverse decision, with the direct circuit conflict as their leading reason for seeking review.  King v. Burwell, S.Ct. No. 14-114, filed July 31, 2014.

En banc review in the D.C. Circuit may cause a delay in the issue reaching the Supreme Court since the conflicting panel decision was vacated, but the issue seems destined for Supreme Court review eventually, given the importance of the issue under the Affordable Care Act.

The D.C. Circuit's en banc order sets a new briefing schedule with en banc oral argument on December 17, 2014.