The federal government won in a recent Seventh Circuit battle over the Affordable Care Act’s controversial “contraceptive mandate”—for about five minutes.
Then the U.S. Court of Appeals for the Seventh Circuit withdrew the decision.
What gives? The court didn’t say. The one-sentence order said only that the decision had been “erroneously issued.”
Appellate courts sometimes make changes to already-issued opinions, and the process differs by circuit. Some courts highlight their changes. Others don’t, but leave the original version available.
But this “change” was different. After the order withdrawing the opinion was posted, the erroneously issued opinion disappeared.
The case is one of several working their way up and down the federal court system over the ACA’s requirement that employers provide their employees with contraceptive coverage. Although the federal government has a workaround to the so-called contraceptive mandate for employers with religious objections, a number of groups have challenged that accommodation as not going far enough.
The mandate and the potential accommodation have twice made their way to the U.S. Supreme Court, with the latest iteration causing court-watchers to scratch their heads.
Sitting with only eight justices—and possibly unable to come to a resolution that avoided a 4-4 tie—the high court bounced the cases, Zubik v. Burwell and several other related cases
, back to the lower courts so that they could figure out what to do.
However, the high court provided little actual guidance, warning that its decision expressed “no view on the merits of the cases.”
And this brings us to the Seventh Circuit’s unanimous opinion in Ozinga v. Burwell
, which the appellate court was holding while the Supreme Court considered Zubik.
Why was this unanimous panel decision
—which an enterprising Bloomberg BNA editor captured on Bloomberg Law before it was taken down—only released for a few minutes before it was withdrawn?
Could it be that the judges haven’t actually made up their minds yet? Maybe. More likely, the opinion just needs some final edits.
Former Seventh Circuit and Supreme Court clerk Tejas N. Narechania
, now a professor at University of California Berkeley School of Law, explained that the process for releasing opinions in the Seventh Circuit is a multi-step one.
“After oral argument, the panel holds a conference and reaches a tentative decision, and the presiding judge—or the senior judge in the majority—assigns the opinion,” Narechania told Bloomberg BNA. “A proposed opinion is circulated to the panel (and, in rare cases, to the entire court, see Circuit Rule 40(e)).”
In fact, the Seventh Circuit has detailed deadlines to ensure the “expeditious preparation and release of opinions,” according to the court’s Operating Procedures
. After all, “justice delayed is justice denied,” the procedures say.
“A judge assigned to write a published opinion should circulate the draft to the other members of the panel within 90 days of the date the case was argued or submitted,” the procedures say. That deadline is extended to 180 days when the case is “unusually complex.”
Next, every “judge should respond by approval, memorandum suggesting changes, or notice that a separate opinion is under active consideration within 14 days of the circulation of a draft,” the procedures say. Judges writing separate opinions should circulate those within 28 days of the initial response.
“Once the panel agrees to the opinion (or a majority of the panel agrees while other judges have circulated final versions of their separate opinions, e.g., concurrences or dissents), the opinion should be mostly ready to be released,” Narechania said.
But that isn’t the end of the process.
Unfortunately, the oddly secretive Seventh Circuit’s Clerk’s Office refused to say what the remaining process entails. The court’s policy is not to release the details of its internal processes, a person with the clerk’s office who refused to be named, told Bloomberg BNA Jan. 4.
But Narechania—who emphasized that law clerks aren’t involved in the nuts and bolts of the remainder of the publication process—said the “Clerk’s Office may prepare that final draft of the opinion for publication by putting it into the correct template or format, and that publication-ready version may be reviewed for typographical errors.”
It does seem probable that the “final draft” in Ozinga was released by the clerk’s office before being reviewed for “typographical errors.”
The evidence? The bonus period at the end of this sentence: “Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges..”
To be continued….
Update: The typo identified above was not in the opinion as it appeared originally on the Seventh Circuit's website.