We have started filing briefs in the healthcare litigation cases, so I have reposted here Katie Collister’s excellent discussion of the Court’s scheduling order:

Finally…A Briefing Schedule! 

Last night the Supreme Court, in a rare departure from traditional practice, adopted a formal briefing schedule in the three vided Patient Protection and Affordable Care Act cases. This highly anticipated schedule ends over three weeks of rumors and speculation regarding how the Court would handle briefing the varied and complex issues that these cases raise.

As the Court suggested to me shortly after the Court granted Cert. on November 14, the parties’ briefs will focus on particular issues and multiple briefs will be filed by each party with the first of the party briefs due on January 6, 2012. The issues are the Minimum Coverage Provision, the Anti-Injunction Act, Severability, and Medicaid. 

The parties’ briefs are due as follows: 

No. 11-398 (Minimum Coverage Provision): 

Brief of Petitioners:                                                January 6, 2012

Briefs of Respondents:                                           February 6, 2012

Reply brief of Petitioners:                                     March 7, 2012

Note: The parties’ word limits have been extended by 10% on this issue to 16,500 for the main briefs and 6,600 for the Reply brief.

No. 11-398 (Anti-Injunction Act):

Brief of Court-appointed amicus:                        January 6, 2012

Briefs of Petitioners & Respondents:                  February 6, 2012

Reply briefs of Petitioners & Respondents:       February 27, 2012

Reply brief of Court-appointed amicus:             March 12, 2012

Nos. 11-393 and 11-400 (Severability):

Briefs of Petitioners:                                               January 6, 2012

Brief of Respondents:                                             January 27, 2012

Brief of Court-appointed amicus:                        February 17, 2012

Reply briefs of Petitioners & Respondents:       March 13, 2012

No. 11-400 (Medicaid):

Brief of Petitioners:                                                January 10, 2012

Brief of Respondents:                                             February 10, 2012

Reply brief of Petitioners:                                     March 12, 2012

So, that covers the parties – but what about amicus briefs? The most frequent question that I have been asked over the past three weeks has been: When is my brief due if I am in support of Florida when they are a Petitioner in No. 11-400 and a Respondent in No. 11-398? Fortunately, the Court’s order also clarifies how and when amicus briefs should be filed.

First, the Court directs potential amici to file in support of, or opposing, the issues. I have been advising our clients that this would likely happen in these cases. Filing in support of an issue is a departure from the typical amicus brief which would usually be in support of a party. Therefore, if you intend to file one or more amicus briefs you will need to determine which issue you wish to address and which position you will be taking on that issue.

Second, the order specifically directs amici to “file separate briefs on each issue they intend to address.” This means that any particular amicus could file as many as four amicus briefs if they intend to address each of the Minimum Coverage Provision, Anti-Injunction Act, Severability and Medicaid issues.

Having determined which issue(s) you intend to address, the due dates of amicus briefs are as follows:

No. 11-398 (Minimum Coverage Provision):

Supporting Petitioners:                                         January 13, 2012

Supporting Respondents:                                      February 13, 2012

No. 11-398 (Anti-Injunction Act):

Supporting Court-appointed amicus                  January 13, 2012

Supporting Petitioners or Respondents             February 13, 2012

Nos. 11-393 and 11-400 (Severability):

Supporting Petitioners                                          January 6, 2012

Supporting Respondents                                       January 27, 2012

Supporting Court-appointed amicus                  February 17, 2012

No. 11-400 (Medicaid):

Supporting Petitioners                                          January 17, 2012

Supporting Respondents                                       February 17, 2012

The due dates on all issues, except the Severability issue, are consistent with Rule 37.3(a) which states that “

[t]he brief shall be submitted within 7 days after the brief for the party supported is filed….” Amicus briefs on the Severability issue are to be filed at the same time or before the due date of the brief of the party that they are supporting.

A final note from the Court directs amici to identify on the cover of their briefs the issue that they are addressing, as well as identifying “the party or parties supported or whether the brief suggests affirmance or reversal, as required by Rule 37.3(a)….”

We at Cockle hope that this post answers some of your questions as you begin to prepare your amicus briefs. We look forward to working with you over this busy and exciting period. If you are not currently on our schedule, please call us so that we may save a space for you.