Case: 11-40631 Document: 00511757371 Page: 1 Date Filed: 02/13/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT PHYSICIAN HOSPITALS OF AMERICA and TEXAS SPINE & JOINT HOSPITAL, Plaintiffs-Appellants, v. No. 11 40631 KATHLEEN SEBELIUS, Secretary of the Department of Health and Human Services, Defendant-Appellee. On Appeal from the United States District Court for the Eastern District of Texas, Tyler Division APPELLANTS MOTION TO STAY PROCEEDINGS Pursuant to Federal Rule of Appellate Procedure 27(a, Appellants Physician Hospitals of America ( PHA and Texas Spine and Joint Hospital ( TSJH, (collectively, PHA, file this motion to stay proceedings of the appeal in this Court pending resolution of related cases in the Supreme Court of the United States (the Motion. In support of this request, PHA states as follows: 1. On May 25, 2011, PHA timely filed a notice of appeal of the district court s March 31, 2011 order granting the Secretary s motion for summary judgment. PHA filed its opening brief on August 17, 2011. The Secretary filed her 1
Case: 11-40631 Document: 00511757371 Page: 2 Date Filed: 02/13/2012 opposition brief on October 19, 2011. PHA filed its reply brief on November 23, 2011. On the same day, PHA filed a Motion to Stay Proceedings, requesting that this Court stay the proceedings in this appeal until the Supreme Court of the United States resolves whether the provision at issue here will be stricken as nonseverable from other parts of PPACA that are alleged to be unconstitutional. 2. Specifically, on November 14, 2011, the Supreme Court granted certiorari in three cases: Nat l Fed n of Indep. Bus., et al. v. Sebelius, Sec y of Health and Human Servs., No. 11 393; Dep t of Health and Human Servs. v. Florida, No. 11 398; and Florida v. Dep t of Health and Human Servs., No. 11 400 (collectively the PPACA Cases. On December 19, 2011, the Supreme Court set oral argument for those cases on March 26, 27 and 28, 2012. 1 3. The PPACA Cases each concern the constitutionality of the Patient Protection and Affordable Care Act, Pub. L. No. 111 148, 124 Stat. 119 (2010, amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111 152, 124 Stat. 1029 (2010 ( PPACA. The Supreme Court of the United States granted certiorari in the PPACA cases to address the constitutionality of PPACA in its entirety, including the constitutionality of the so-called individual mandate, and whether, or to what extent, the Court may sever the 1 U.S. Supreme Court oral argument calendar for the session beginning March 19, 2012, dated Dec. 19, 2011, available at http://www.supremecourt.gov/ oral_arguments/argument_calendars/monthlyargumentcalmar2012.pdf, last accessed February 10, 2012. 2
Case: 11-40631 Document: 00511757371 Page: 3 Date Filed: 02/13/2012 individual mandate from PPACA. In the PPACA Cases litigation, a federal district court declared PPACA unconstitutional in its entirety on grounds that the individual mandate was unconstitutional and Congress provided no guidance as to how the unconstitutional provisions could be severed from PPACA s remainder. 4. In the instant case, PHA appeals from the district court s order granting the Secretary s motion for summary judgment. PHA s suit in the district court sought declaratory and injunctive relief under the Due Process and Takings clauses of the Fifth Amendment to the U.S. Constitution against the Secretary s enforcement of Section 6001 of PPACA. 5. The parties have completed all necessary briefing at this stage of the proceeding. However, depending on how the Supreme Court resolves the PPACA cases, PHA may petition the Court to re-open briefing. 6. PHA requests that this Court stay the proceedings in the present appeal until the Supreme Court has resolved the PPACA Cases because PHA s appeal concerns the enforcement of Section 6001 of PPACA and the entire statute is presently set for hearings before the Supreme Court of the United States. Pursuant to this review, the Supreme Court could strike PPACA in its entirety, which would render this appeal dealing with a PPACA provision moot. 7. This Court has the authority to stay these proceedings. The federal courts are vested with inherent power to manage their own affairs so as to achieve the 3
Case: 11-40631 Document: 00511757371 Page: 4 Date Filed: 02/13/2012 orderly and expeditious disposition of cases[,]... including the power of the court to control its docket. Woodson v. Surgitek, Inc., 57 F.3d 1406, 1417 (5th Cir. 1995 (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962. This Court has recognized that it may stay proceedings as part of its authority to control its docket. See Hines v. D Artois, 531 F.2d 726, 733 (5th Cir. 1976 ( [T]he power 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. (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936. This Court has previously used its inherent power to stay appeals pending the resolution of related proceedings. See, e.g., Tanksley v. Gulf Oil Corp., 848 F.2d 515, 516 (5th Cir. 1988; Anshutz v. J. Ray McDermott Co., 642 F.2d 94, 95 (5th Cir. Unit A Mar. 1981. 8. Underlying the discretionary authority to stay proceedings is the principle that public policy requires [courts] to seek actively to avoid the waste of judicial time and energy. Travelers Ins. Co. v. La. Farm Bureau Fed n, 996 F.2d 774, 777 n.9 (5th Cir. 1993 (quoting Crosley Corp. v. Hazeltine Corp., 122 F.2d 925, 930 (3d Cir. 1941. On several occasions, this Court has affirmed that conserving judicial and litigant resources is an important goal. See, e.g., Casiano v. AT&T Corp., 213 F.3d 278, 287 (5th Cir. 2000; Beal Bank, S.S.B. v. Caddo Parish-Villas 4
Case: 11-40631 Document: 00511757371 Page: 5 Date Filed: 02/13/2012 S., Ltd. (In re Caddo Parish-Villas S., Ltd., 174 F.3d 624, 629 (5th Cir. 1999 (noting the Court s basic interest in preserving judicial and other resources. 9. A stay of these proceedings would advance this important goal of judicial economy. The Supreme Court will hear oral argument on March 26, 27 and 28 regarding whether PPACA is unconstitutional, and if not, what portions of the law, if any, must be severed. Naturally, should the Supreme Court strike PPACA in its entirety, Section 6001 would also be struck down, and the instant appeal would be moot. The Supreme Court may also decide that particular provisions of PPACA must be severed, which could also impact on the applicability of Section 6001, and this appeal. In sum, the Supreme Court s ruling in the PPACA Cases is likely to have a significant, and, depending on the scope of the decision, dispositive effect on the present appeal. Even if the Supreme Court ultimately declined to decide the scope of severance, but remanded that issue instead, this Court could re-open briefing at the appropriate time. 10. In short, a stay would advance the goal of conserving judicial and litigant resources. A stay would also spare this Court and the parties from litigating the present appeal in an uncertain context, as the Supreme Court s ultimate decision in the PPACA Cases could render PHA s claims moot. At the same time, a stay would preserve the parties abilities to contest Section 6001 in this Court in the event the Supreme Court does not issue a dispositive decision. 5
Case: 11-40631 Document: 00511757371 Page: 6 Date Filed: 02/13/2012 11. On January 6, 2012, this Court denied PHA s November 2011-filed Motion to Stay Proceedings, but specifically stated that the order was without prejudice to raising the motion after the case has been calendared for argument. The parties received notice of tentative oral argument calendaring on February 2, 2012. Accordingly, PHA asks this Court to stay proceedings now that the case has been calendared for argument. 12. After receiving notice of tentative oral argument calendaring, PHA contacted counsel for Respondent, the Secretary of Health and Human Services, and has been informed that the Secretary continues to be unopposed to this Motion. For the foregoing reasons, the Court should stay this appeal pending the Supreme Court of the United States decision in the PPACA Cases. February 13, 2012 Respectfully submitted, PHYSICIAN HOSPITALS OF AMERICA, and TEXAS SPINE & JOINT HOSPITAL, LTD. By counsel /s/ Lisa Sharp Scott C. Oostdyk Lisa Sharp MCGUIREWOODS LLP One James Center 901 East Cary Street 6
Case: 11-40631 Document: 00511757371 Page: 7 Date Filed: 02/13/2012 Richmond, Virginia 23219 (804 775-1000 (telephone (804 775-1061 (facsimile Counsel for Appellants 7
Case: 11-40631 Document: 00511757371 Page: 8 Date Filed: 02/13/2012 CERTIFICATE OF SERVICE I hereby certify that, on February 13, 2012, a true and correct copy of Appellants Motion to Stay Proceedings was served via electronic means through the Court s transmission facilities to all counsel of record in this case. /s/ Lisa Sharp Lisa Sharp \35050814.3 8