Tuesday, August 19, 2014


To everyone furiously parsing Rule 35 of the Federal Rules of Appellate Procedure in order to argue that Halbig v. Burwell (also affectionately known as the "moops" case) is or is not en banc worthy -- stop. We all are well aware that the standard for en banc review is no more and no less than "if the court feels like it." That's it. Indeed, when I clerked on the Eighth Circuit a panel once asked for supplemental briefing on whether a case should go en banc (some of the judges disliked a prior Eighth Circuit precedent that granted jurisdiction over the appeal in the first place), and the lawyers' really had no way to argue one way or the other because granting en banc review is for all intents and purposes a pure exercise of unfettered discretion.

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