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UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________ DR. JAMES L. SHERLEY, et al., )) No. 10-5287
Plaintiffs-Appellees
, )) On Appeal from the United
v.
) States District Court for the) District of ColumbiaKATHLEEN SEBELIUS, et al., ) (1:09-cv-01575-RCL))
Defendants-Appellants.
) _______________________________)
PLAINTIFFS-APPELLEES MOTION TO REFER THIS APPEAL TO THEPANEL THAT DECIDED THE ORIGINAL APPEAL IN THIS CASE
Plaintiffs-Appellees hereby move this Court to refer the present appeal including all motions and other filings in this caseto the same panel that recentlydecided the original appeal in this case. Plaintiffs-Appellees (Plaintiffs)
1
contacted the U.S. Department of Justice (DOJ) regarding this motion and theDOJ, on behalf of the Defendants-Appellants (the government), takes no position on this motion.This case was very recently considered, and resolved in part, by a merits panel (consisting of Judges Ginsburg, Brown, and Kavanaugh) in No. 09-5374,which was argued on April 12, 2010, and decided on June 25, 2010.
See Sherley v.
1
In the original appeal, Plaintiffs were the Appellants.
Case: 10-5287 Document: 1263585 Filed: 09/01/2010 Page: 1
2
Sebelius
, 610 F.3d 69 (D.C. Cir. 2010). As discussed below, the briefs in that prior appeal covered in detail virtually all of the issues in the present appeal. Thus, theinterests of judicial efficiency militate in favor of assigning this appeal to the same panel that heard the prior appeal in this case and is familiar with the issues to beraised in the present appeal.This case was commenced in August 2009 when Plaintiffs filed their complaint and moved for a preliminary injunction. The government opposedPlaintiffs preliminary injunction motion and moved to dismiss. The District Courtgranted the governments motion to dismiss for lack of standing,
Sherley v.Sebelius
, 686 F. Supp. 2d 1, 3 (D.D.C. 2009), and denied Plaintiffs motion for a preliminary injunction as moot. Plaintiffs then appealed from, among other things,the order granting the governments motion to dismiss and the order denyingPlaintiffs motion for a preliminary injunction.On appeal, the parties briefs extensively addressed both standing and thequestion whether Plaintiffs were entitled to a preliminary injunction. Indeed, each party devoted more than two-thirds of its substantive briefing to the preliminaryinjunction issues (with less than one-third of the substantive briefing devoted tostanding). After a full round of briefing, oral argument was held before JudgesGinsburg, Brown, and Kavanaugh on April 12, 2010. The Courts opinion heldthat certain Plaintiffs had standing, reversed the District Courts dismissal of their
Case: 10-5287 Document: 1263585 Filed: 09/01/2010 Page: 2
3claims, and reinstated the motion for a preliminary injunction.
See Sherley
, 610F.3d at 70. The Courts mandate issued less than three weeks ago.After this Courts ruling, the District Court granted Plaintiffs motion for a preliminary injunction. Coming quickly on the heels of this Courts opinion in theoriginal appeal, the government now appeals the District Courts grant of the preliminary injunction.In the interests of judicial economy, Plaintiffs respectfully submit that the present appeal and all other filings in this caseincluding any motion for thisCourt to stay the preliminary injunction issued by the District Court
2
should bereferred to the panel that decided the original appeal in this case. The original panel recently reviewed extensive briefing on the merits of the preliminaryinjunction issues, held oral argument, and issued a detailed opinion that is relevantto the present appeal. In short, because the original panel is well-versed in thespecific facts and law relating to the present appeal, the parties and the Court alikewould benefit from retaining the same panel for this appeal.This Court has previously described its system of selection of judges asone that provides for retention of the same panel that handled an earlier appeal in
2
Once a case is assigned to a merits panel, everything relating to the case comesunder the exclusive control of the panel and [a]ll motions filed in the case aresubmitted to the panel.
Handbook of Practice & Internal Procedures
, U.S.Court of Appeals for the D.C. Circuit at 32.
Case: 10-5287 Document: 1263585 Filed: 09/01/2010 Page: 3
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