No. 99-1223
In the Supreme Court of the United States
JOHN HANLON AND RUTH ANN HANLON, ETC., ET AL., PETITIONERS
v.
DONNA E. SHALALA, SECRETARY OF THE
DEPARTMENT OF HEALTH AND HUMAN SERVICES
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney General
MARY HAMPTON MASON
KAREN P. HEWITT
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the Court of Federal Claims and Court of Appeals for the Federal
Circuit correctly held that a special master considering two petitions filed
under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. 300aa-1
et seq., did not abuse her discretion in reconsidering, prior to the entry
of final judgment, her initial entitlement ruling in light of new and dispositive
medical evidence regarding the true cause of claimants' medical condition.
LIST OF PARTIES
Petitioners' list of parties erroneously includes twelve petitioners in
other cases involving petitions for compensation filed under the Vaccine
Act. Although all the cases involve a claimant who suffers from the genetic
disease tuberous sclerosis, each of those twelve cases is pending at different
stages of proceedings before the Court of Federal Claims, Office of Special
Masters. Each case is being, or has been, assessed by the special master
based on the medical and clinical course of the party's particular condition.
With the exception of Hanlon and Plavin, none of the other petitioners listed
is a party "to the proceeding in the court whose judgment is sought
to be reviewed," the Court of Appeals for the Federal Circuit. Sup.
Ct. R. 14(1)(b).
In the Supreme Court of the United States
No. 99-1223
JOHN HANLON AND RUTH ANN HANLON, ETC., ET AL., PETITIONERS
v.
DONNA E. SHALALA, SECRETARY OF THE
DEPARTMENT OF HEALTH AND HUMAN SERVICES
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
OPINIONS BELOW
The opinion and order of the court of appeals in Hanlon v. HHS (Pet. App.
143a-150a) is reported at 191 F.3d 1344. The companion order of the court
of appeals in Plavin v. HHS (Pet. App. 151a) is reported at 184 F.3d 1380.
JURISDICTION
Two separate judgments of the court of appeals in Hanlon v. HHS and Plavin
v. HHS were entered on September 8, 1999. A combined petition for rehearing
and suggestion for rehearing en banc was denied on October 20, 1999 (Pet.
App. 152a-153a). A single petition for a writ of certiorari was filed on
behalf of the claimants in both cases on January 18, 2000. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. The National Childhood Vaccine Injury Act of 1986 (Vaccine Act or Act),
42 U.S.C. 300aa-1 et seq., as amended, established a federal compensation
scheme for individuals alleging injury by certain vaccines. 42 U.S.C. 300aa-10
et seq. The Act created an Office of Special Masters as an adjunct to the
Court of Federal Claims; the exclusive mission of that Office is to adjudicate
Vaccine Act petitions. 42 U.S.C. 300aa-12(c); H.R. Rep. No. 908, 99th Cong.,
2d Sess., Pt. 1, at 16 (1986); see also Shalala v. Whitecotton, 514 U.S.
268, 269-270 (1995). Thus, under the provisions of the statutory scheme,
"Congress assigned to a group of specialists, the special masters *
* * the unenviable job of sorting through these painful cases and, based
upon their accumulated expertise in the field, judging the merits of the
individual claims." Hodges v. HHS, 9 F.3d 958, 961 (Fed. Cir. 1993).
Designed as an alternative to traditional tort litigation, the Vaccine Act
removes many of the more difficult elements of proof plaintiffs faced in
civil judicial proceedings. For example, petitioners do not have to prove
either that the vaccine manufacturer or administrator was negligent or that
the vaccine was defective. See O'Connell v. Shalala, 79 F.3d 170, 172 (1st
Cir. 1996). Additionally, with respect to proof of causation, the Act provides
a burden-shifting device known as the Vaccine Injury Table. 42 U.S.C. 300aa-14(a).
In "on-Table" cases, petitioners do not have to prove that the
vaccine itself was responsible for the injuries alleged as part of their
case in chief. Rather, where petitioners establish that the onset or significant
aggravation of certain predicate injuries is temporally associated with
immunization, the Table gives rise to a prima facie presumption that the
vaccine caused those injuries. See Shalala v. Whitecotton, 514 U.S. at 270.
The presumption, however, is rebuttable. Thus, under the statute, no petitioner
is entitled to compensation if the Table event is attributable to factors
unrelated to the vaccine. 42 U.S.C. 300aa-13(a)(1)(B). The Table event in
each of the instant cases consisted of a brief seizure unaccompanied by
any other symptoms.
2. The present matter involves petitions for compensation under the Vaccine
Act filed by the parents of Michael Hanlon and Rachel Plavin, who both suffer
from the genetic disease Tuberous Sclerosis (TS).1 TS is a known genetic
disorder that can cause a variety of problems in a wide range of organ systems
and tissues. Pet. App. 18a-19a. Common among these manifestations, and most
important for cases brought under the Vaccine Act, TS causes cortical lesions,
or tubers, to form in the brain during early fetal development. Id. at 19a,
72a. These tubers cause a variety of neurologic symptoms, including seizures
and mental retardation. Ibid. Tubers lead to seizures in the majority of
TS patients, and the majority of those with seizure disorders are mentally
retarded. Id. at 72a. Medical literature on TS consistently reports that
the extent of brain disruption caused by tubers is directly related to the
severity of a child's outcome. Id. at 19a, 27a-36a, 72a.
Michael Hanlon was born with at least ten tubers in his brain. Pet. App.
24a, 60a. Rachel Plavin was born with at least 43 tubers in her brain. Id.
at 24a & n.6, 64a. As with many children who suffer genetic disorders
and virtually all children who suffer from TS, the symptoms caused by the
children's disease were not immediately apparent at birth. On June 1, 1978,
at two months of age, Michael received his first Diphtheria, Pertussis and
Tetanus (DPT) vaccination; he experienced his first seizure the following
day. Id. at 7a. On September 15, 1989, at the age of three and one-half
months, Rachel received her second in a series of DPT immunizations, and
she experienced her first seizure later that day. Id. at 9a. Aside from
the onset of seizures typical of TS, neither Michael nor Rachel suffered
any symptoms of vaccine reaction such as fever, anorexia, insomnia, excessive
sleeping or coma, shock, or any other changes that might suggest something
other than their genetic disease was responsible for seizure onset. Id.
at 71a, 73a, 74a.
3. Petitioners filed petitions for compensation under the National Vaccine
Injury Compensation Program alleging that each child suffered "significant
aggravation of pre-existing tuberous sclerosis (TS)" in the form of
a residual seizure disorder "within the Table time limits of the Act."
Pet. App. 2a, 9a. In each case, the special master initially ruled for petitioners.
Based on the medical evidence available at the time, the special master
concluded that, when a child with TS has his first seizure within three
days of receiving a DPT vaccine, he is entitled to compensation under the
Vaccine Act regardless of the nature of the seizure, the existence of any
other symptoms, or the subsequent clinical course. Id. at 7a, 12a. These
decisions were issued in 1994, id. at 1a, 8a, after which the special master
initiated the damages phase of proceedings. In 1995, while the cases were
still pending before the special master, the Secretary filed motions for
reconsideration in each case, based on additional evidence previously unavailable,
including peer-reviewed published medical literature. Id. at 16a, 84a. Specifically,
the Secretary asked the special master to consider testimony, in light of
this new evidence, on the question whether each child's seizures and mental
retardation were caused by TS alone. Id. at 84a.
After reviewing the proffered evidence and considering extensive briefs
filed in opposition to reconsideration, the special master granted the motions
and undertook the "colossal task," Pet. App. 90a, of convening
omnibus proceedings to consider the common issues in these and numerous
other cases arising out of the complex medical and scientific questions
related to TS. Id. at 14a-18a. Those proceedings included discovery, six
days of expert trial testimony involving nine expert witnesses, more than
2000 pages of evidentiary transcripts, and the consideration of numerous
briefs, as well as over 200 medical articles, reports, and other exhibits.
The special master also heard evidence in the particular cases of Michael
Hanlon and Rachel Plavin, so as to have specific details to which to apply
the general defenses set forth by the Secretary. Id. at 24a.
3. Ultimately, the special master found their underlying genetic disease,
TS, to be the medical cause of Michael Hanlon's and Rachel Plavin's seizures
and mental retardation. The special master found further that their seizure
onset and subsequent medical course were unrelated to the DPT immunizations.
Pet. App. 73a-74a. As the special master explained, "[t]he effect of
numerous tubers, as well as their location and size, is a given. Not one
witness disputes their importance." Id. at 72a. The special master
examined both Michael Hanlon's and Rachel Plavin's medical course to determine
whether either had any signs or symptoms that might indicate that something
other than the genetic disease was responsible for their condition, and
concluded that neither had any such symptoms. Id. at 72a-74a. To the extent
petitioners' experts offered contrary opinions regarding the cause of each
child's disorder, the special master found that, "[b]y espousing minority
views," the testimony of those experts, "though admissible under
the broad directives of the Vaccine Program (which does not adhere to the
Federal Rules of Civil Procedure)," was not as credible as that of
the experts who adhered to "mainstream" methodology. Id. at 60a
n.41. In light of the voluminous record, the special master concluded that,
when no signs of a typical vaccine reaction are seen, it would be unreasonable,
arbitrary and capricious "to hold that TS, a disease known to produce
seizures, and consequent mental retardation, autism, and developmental delay,
is not the cause and that respondent has failed to rebut the presumption
that DPT is the cause." Id. at 69a. Because the Secretary had proven
by a "logical sequence of cause and effect" that TS, rather than
immunization, was the cause of Michael's and Rachel's seizures and retardation,
petitioners were not entitled to compensation under the Vaccine Act. Id.
at 72a. The special master then issued orders vacating her initial entitlement
ruling and dismissing both cases. Id. at 75a-78a.
4. Petitioners moved for review of the special master's decision in the
Court of Federal Claims; the cases were heard by two different judges. In
Hanlon, the court affirmed both the special master's decision to reconsider
her interim entitlement ruling in light of new evidence, and her ultimate
conclusion that Michael's seizures and retardation were attributable to
his genetic disease. Pet. App. 115a, 127a. In Plavin, the court also affirmed
the special master's decision to reopen entitlement proceedings, concluding
that her discretion was not abused. Id. at 100a-105a. Similarly, it found
the special master's determination that TS was a permissible alternative
cause under the Vaccine Act to be in accordance with the statute. Id. at
98a, 141a. However, the court remanded the latter case for the limited purpose
of determining whether the Secretary had proven that TS was the actual cause
of Rachel's seizures and mental retardation based upon the specific symptoms
she experienced, and the course of her disease. Id. at 109a. After considering
additional evidence on remand, the special master again concluded that the
child's seizures and retardation were caused by her TS. Id. at 136a. The
Court of Federal Claims affirmed the special master's remand decision and
dismissed the case. Id. at 142a.2
5. The Court of Appeals for the Federal Circuit affirmed the dismissal of
the petitions. Pet. App. 143a, 151a. The court determined that the special
master's finding that TS was the actual cause of petitioners' seizures and
retardation was based on a "logical and legally probable" sequence
of cause and effect. Id. at 149a. The court also found that it was "not
an abuse of discretion" for the special master to "consider new
pertinent medical evidence that was not available at the time of the original
petition." Ibid. A combined petition for rehearing and suggestion for
rehearing en banc was denied. Id. at 152a-153a.
ARGUMENT
In their petition for a writ of certiorari, petitioners have abandoned most
of the arguments pursued below. Specifically, they do not renew either their
objections to the special master's findings regarding the nature of the
genetic disease and the unfortunate and devastating symptoms caused by that
disease, or their objections to the legal sufficiency of TS as a permissible
alternative cause under the Vaccine Act. Those issues are therefore not
before the Court.
The sole claim on certiorari is that it was error for the special master
to reconsider her initial decision on entitlement to compensation while
the case was still pending before her and prior to the entry of final judgment.
In rejecting petitioners' claims, the Court of Federal Claims and the Federal
Circuit correctly concluded that the special master acted well within her
statutory discretion in granting the Secretary's motion for reconsideration
based on new and dispositive medical evidence. The decisions below comport
both with the text and purposes of the Vaccine Act, and with broader legal
doctrine. They do not create any conflict, either among federal courts of
appeals or within the Federal Circuit. Further review is not warranted.
1. The Vaccine Act affords a special master "wide discretion in conducting
the proceedings in a case." Burns v. HHS, 3 F.3d 415, 417 (Fed. Cir.
1993); accord Murphy v. HHS, 23 Cl. Ct. 726, 730 (1991), aff'd, 968 F.2d
1226 (Fed. Cir.), cert. denied, 506 U.S. 974 (1992). Congress charged the
special masters to be "vigorous and diligent in investigating"
Vaccine Program claims, and the legislative history provides that their
fact-finding mission should be carried out in an "inquisitorial"
manner. H.R. Rep. No. 908, supra, at 17; H.R. Rep. No. 247, 101st Cong.,
1st Sess. 764 (1989). Thus a special master "may require the testimony
of any person and the production of any documents as may be reasonable and
necessary." 42 U.S.C. 300aa-12(d)(3)(B)(iii); accord 42 U.S.C. 300aa-12(d)(3)(B)(iv)
(special master shall consider "all * * * relevant written information").
Moreover, with respect to receiving evidence, a special master "will
not be bound by common law or statutory rules of evidence." Hines v.
HHS, 940 F.2d 1518, 1525 (Fed. Cir. 1991). The Vaccine Rules promulgated
by the Court of Federal Claims pursuant to Congress's authorization instruct
a special master to "consider all relevant reliable evidence, governed
by principles of fundamental fairness to both parties." Fed. Cl. Ct.
R. 8(b), App. J. Additionally, although the Office of Special Masters initially
issued only recommendations to the Court of Federal Claims, Congress subsequently
accorded special masters final decision-making authority. Congress intended
for "appeal of the special master's decision," only "under
very limited circumstances," H.R. Conf. Rep. No. 386, 101st Cong.,
1st Sess. 253 (1989). Challenges to discretionary rulings-the essence of
petitioners' claims on petition for a writ of certiorari-are therefore restricted
by statute to review for abuse of discretion. 42 U.S.C. 300aa-12(e)(2)(B)
(findings of fact or conclusion of law may be set aside if "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law").
Consistent both with the wide discretion afforded under the Vaccine Act
and with well-accepted judicial doctrine, a Vaccine Act special master-like
any court or statutory fact-finder-"may change any interlocutory decision
up until the entry of final judgment." McGowan v. HHS, 31 Fed. Cl.
734, 737 (1994); Horner v. HHS, 35 Fed. Cl. 23, 27 (1996) (remanding to
the special master with directions to reopen the proof to consider the admission
of a newly-offered vaccination record, stating that "fundamental fairness
requires a search for the truth," which search is furthered by examining
"newly found and offered evidence"); Shaw v. HHS, 18 Cl. Ct. 646,
652 (1989) ("Until entry of judgment, the record of proceedings is
not closed and this court retains an obligation to consider all scientific,
medical, and legal matters brought to its attention by either party.").
Far from being a "jurisprudential aberration," Pet. 13, this practice
mirrors the discretion to reconsider interlocutory rulings approved both
by this Court and by the Federal Circuit in a variety of contexts.3 Thus
the special master's decision to reconsider her earlier entitlement rulings
was not, as petitioners contend, barred by the "law of the case"
doctrine, for it is axiomatic that "[i]nterlocutory orders * * * do
not constitute the law of the case." Pérez-Ruiz v. Crespo-Guillén,
25 F.3d 40, 42 (1st Cir. 1994); see In re PCH Assocs., 949 F.2d 585, 592
(2d Cir. 1991) (law of the case is a "discretionary rule of practice
and generally does not limit a court's power to reconsider an issue");
see generally 18 Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure 4478 (Supp. 1999) ("Although courts are often eager to
avoid reconsideration of questions once decided in the same proceeding,
it is clear that all federal courts retain power to reconsider if they wish.");
18 James W. Moore et al., Moore's Federal Practice and Procedure 134.22(1)(a)
(3d ed. 2000) ("The law of the case doctrine does not * * * limit the
court's power to reconsider or change its decision.").
Against this backdrop, it is clear that the issue raised by the petitioners
does not warrant this Court's review. The interlocutory entitlement rulings
in these cases were not "final," Pet. 6, ¶ 9; no judgment
had been entered, nor had there been any intervening appeal to the Court
of Federal Claims that might otherwise have deprived the special master
of the authority to consider the Secretary's motions.4 The impetus for the
Secretary's motion was a new study, published by the Mayo Clinic in January,
1995. Pet. App. 101a. The Secretary immediately brought this material to
the special master's attention, and moved for reconsideration in a timely
manner: within ten months of the initial entitlement ruling in Hanlon, and
within three months of the initial ruling in Plavin. After the motions were
granted, significant additional medical evidence was submitted to the special
master by both parties.
Not only was the special master well within her discretion to examine the
most current medical information and apply it in pending cases, her efforts
were fully in keeping with her statutory charge to consider "all *
* * relevant written information." 42 U.S.C. 300aa-12(d)(3)(B)(iv).
That the proffered evidence was relevant is clear: compensation in Vaccine
Act cases is statutorily barred where a claimant's injury or condition is
due to a factor or cause unrelated to immunization. 42 U.S.C. 300aa-13(a)(1)(B).
Indeed, in general, the refusal to consider potentially dispositive new
evidence in Vaccine Act cases has been repeatedly found to be an abuse of
discretion. See Vant Erve v. HHS, 39 Fed. Cl. 607 (1997) (despite three-year
time lapse since entitlement determination, special master's refusal to
consider diagnosis of alternative etiology constituted abuse of discretion),
aff'd, No. 99-5093 (Fed. Cir. Apr. 18, 2000); Kaminski v. HHS, 39 Fed. Cl.
253 (1997) (special master abused her discretion in refusing to reconsider
entitlement decision based on additional fact testimony); Horner, 35 Fed.
Cl. at 26 (special master's refusal to consider new evidence an abuse of
discretion); Davis v. HHS, 19 Cl. Ct. 134, 143 (1989) (remanding case and
ordering special master to consider evidence of "alternative etiology");
Koston v. HHS, 23 Cl. Ct. 597, 603 (1991) (special master's refusal to consider
request to amend pleadings in light of new evidence an abuse of discretion),
aff'd on other grounds, 974 F.2d 157 (Fed. Cir. 1992).
3. Petitioners erroneously claim that the Federal Circuit's decision in
Suel v. HHS, decided by the same panel that ruled on the Hanlon and Plavin
cases, is relevant to the instant petition.5 Petitioners mischaracterize
both the issue in Suel and its import. In Suel, the special master initially
issued a final decision denying entitlement to compensation. Suel v. HHS,
No. 90-935V, 1993 WL 241430 (Fed. Cl. June 18, 1993). On petitioners' appeal,
the Court of Federal Claims reversed that decision and remanded the case
for a determination of the amount of compensation. Subsequent to that remand,
the Secretary sought to reopen for consideration of the evidence from the
omnibus hearing.
Two critical factors arising from the cases' procedural posture distinguish
Suel from Hanlon and Plavin. First, unlike the instant cases, Suel had already
been appealed to the Court of Federal Claims on the question of entitlement
to compensation, and was pending on remand for a determination of the amount
of compensation, when the Secretary sought to introduce the same new evidence
that the special master considered in the Hanlon and Plavin cases. Suel
v. HHS, 31 Fed. Cl. 1 (1993), aff'd, 192 F.3d 981 (Fed. Cir. 1999). Indeed,
the remand decision was issued almost two years prior to the date that new
evidence became available.
Second, unlike the present cases, Suel involved an appeal of the special
master's denial of the Secretary's motion to consider new evidence. The
decision to deny the motion based on the particular procedural posture of
Suel, like the decision to grant the Secretary's motion given the distinct
procedural posture of Hanlon and Plavin, was subject to review under a highly
deferential standard-abuse of discretion.
Although the Secretary urged both to the Court of Federal Claims and the
court of appeals that the special master erred in refusing to consider the
evidence garnered at the omnibus hearing in Suel, the Federal Circuit disagreed.
The court held that the Court of Federal Claims' 1993 "reversal of
the initial entitlement claim was a final judgment," Suel v. HHS, 192
F.3d at 984, and that therefore, the special master "lacked the authority
to reconsider the issue of entitlement unless a motion for reconsideration
was granted by the Court of Federal Claims." Ibid. The court further
determined that the evidence compelling the special master to reopen Hanlon
and Plavin "was not correctly in the record [in Suel] absent a prior
negation of the 1993 entitlement determination." Id. at 986-987. The
Federal Circuit therefore affirmed the underlying refusal to consider that
evidence and in turn the award of compensation, and denied further review.
In the present cases, of course, there was no intermediate decision of the
Court of Federal Claims; the special master retained authority to reconsider
any previous orders so long as the cases remained pending before her, and
simply exercised her discretion to do so. There is nothing inconsistent
in the fact that the Federal Circuit affirmed both the denial of compensation
in Hanlon and Plavin, and the award of compensation in Suel based upon the
cases' distinct procedural postures and deferential standard of review.
There was nothing done below in Hanlon or Plavin that might reasonably be
characterized as an abuse of discretion, nor are there any other reasons
warranting this Court's review.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney General
MARY HAMPTON MASON
KAREN P. HEWITT
Attorneys
APRIL 2000
1 Michael Hanlon was born on March 30, 1978, Pet. App. 2a; Rachel Plavin
was born on June 8, 1989, id. at 9a.
2 Because the sole argument petitioners raise in their petition for certiorari
is whether the special master erroneously decided to reopen entitlement
proceedings in the first instance, neither the special master's remand order
nor any of the findings below regarding the nature and course of petitioners'
genetic disease are before this Court.
3 See, e.g., United States v. Pierce Auto Freight Lines, 327 U.S. 515, 535
(1946) ("[I]t has been held consistently that rehearings before administrative
bodies are addressed to their own discretion * * *. Only a showing of the
clearest abuse of discretion could sustain an exception to that rule.");
Jamesbury Corp. v. Litton Indus. Prods., Inc., 839 F.2d 1544, 1550-1551
(Fed. Cir.) (where "case was before the district court for 9 years,
and much is known now that was not known at the time of the original motion,"
the court did not abuse its discretion in reconsidering its decision), cert.
denied, 488 U.S. 828 (1988), overruled on other grounds, A.C. Aukerman Co.
v. R.L. Chaides Constr. Co., 960 F.2d 1020 (Fed. Cir. 1992); Genentech,
Inc. v. United States Int'l Trade Comm'n, 122 F.3d 1409, 1422 n.13 (Fed.
Cir. 1997) ("Genentech now asserts that the prior ruling was 'law of
the case.' We disagree. The ALJ has the power to reconsider a prior decision
in the same proceeding.").
4 The fact that the Office of Special Masters routinely bifurcates proceedings-addressing
entitlement first and then, if necessary, going on to determine damages-does
not make a special master's interlocutory entitlement decision "final."
Indeed, as petitioners note, the practice of bifurcation avoids "needless
or duplicative expenditures of money," Pet. 10, as well as unnecessary
expenditure of judicial resources. That procedural practice does not change
the nature of the special master's authority, nor does it give petitioners
any vested rights. See generally United States v. Torbert, 496 F.2d 154,
157 (9th Cir.) (a court's "General Order is a housekeeping rule for
the internal operation of the district court * * *. [I]t does not give appellant
a vested right to any particular procedure."), cert. denied, 419 U.S.
857 (1974); accord Sinito v. United States, 750 F.2d 512, 515 (6th Cir.
1984) ("internal housekeeping rules * * * promote the efficient operation
of the district courts; they are not meant to confer rights on litigants").
5 Subsequent to filing their petition for a writ of certiorari, petitioners
filed a motion in this Court to "delay consideration" of their
petition "in anticipation of a related case," maintaining that
the government was likely to petition for a writ of certiorari in Suel.
We do not intend to file such a petition. That case turned on the peculiar
details of its procedural posture, and we do not deem the issues worthy
of review beyond panel rehearing.