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No Remedy at AdLaw

Over at Notice & Comment Nicholas Bagley has a characteristically timely and thoughtful piece  on a recent D.C. Circuit decision in American Hospital Association v. Burwell (AHA). The precise issue (Medicare payments) is a bit in the weeds but it invites a much broader thought about AdLaw: somehow it never gives you a remedy that’s worth having. But that’s actually something courts could and probably should change.

Very briefly: Congress has legislated an aggressive program to root out Medicare fraud. That’s coupled with an internal appeals process by CMS (part of HHS) for the providers. Close to 400,000 appeals are filed each year over withheld payments; the reversal rate is very high (over forty percent). The statute mandates a decision within one year. Glitch is, the system is in a “total meltdown” (Nick’s words). At current funding and staffing levels the backlog alone will take a decade to clear. So CMS has done the natural thing: suspend the review process altogether. AHA, not liking this one bit, asked the district court for mandamus (Latin for “do it”) to enforce the one-year duty. The district court hemmed, hawed, and said “no.” The D.C. Circuit, in an opinion by Judge Tatel, has now reversed and told the lower court to reconsider.

The Court readily acknowledges that mandamus is an extraordinary remedy—especially where, as here, the order (if obeyed) would compel the agency “to make major changes to its operations and priorities.” Even so, Judge Tatel writes, “the clarity of the statutory duty likely will require issuance of the writ if the political branches have failed to make meaningful progress within a reasonable period of time—say, the close of the next full appropriations cycle” (italics added).

Weird, don’t you think? It’s passing strange to make a legal obligation that runs from one party (the officer) to the other party (the plaintiff) hang on the independent actions of a third actor (the Congress), whose decisions the court cannot control. If our legal obligations depended on “the political branches’ meaningful progress within a reasonable time,” we would all be in jail. And if the writ issues and Congress still doesn’t act, then what?

Though legally styled as mandamus this is an action and order in the nature of imploramus—unknown to the common law but par for the course nowadays. Congress routinely imposes “non-discretionary” duties on agencies and then changes its mind, or fails to fund their performance. A classic case, discussed here and duly cited and relied on in AHA: Congress says that the Nuclear Regulatory Commission must proceed with a licensing procedure for a nuclear waste storage facility at Yucca Mountain, Nevada. Senate leader Reid of Nevada gets his Stamper (a certain Mr. Jaczko) appointed to NRC, who engages in “a systematic campaign of noncompliance” (the court’s words). Court gives Congress a year to “alter the legal landscape”; nothing happens. Court then issues mandamus. Judge Garland dissents, saying mandamus should not issue to order a pointless thing. Good point, that: so long as Messrs. Reid and Obama run the show there’s no chance that government will obey the courts and the law on Yucca Mountain or anything else.

Technically a bit different but the same problem in substance: agencies operate under hundreds of mandatory statutory deadlines, which they routinely miss. The judicial response has been situational. When the agency seems to be trying the courts say, try a little harder. When the agency seems recalcitrant the judges use sterner words.

What is needed, it seems to me, is a bit more hard-nosed realism at the remedies front. “Non-discretionary” agency duties have come a long way since Mr. Madison’s failure to deliver Mr. Marbury’s commission; nowadays they’re mostly congressional legerdemain—a way of sounding serious without meaning it. In any event courts lack the means of making an agency do what it doesn’t want to do and what Congress really doesn’t want it to do. A mandamus order in the AHA case—turning the entire CMS inside-out—would accomplish nothing except to make the judge look as bad as CMS. In contrast, in cases of outright defiance by an identifiable individual like Mr. Jaczko, the appropriate remedy might be a contempt citation, enforceable if need be by imprisonment. Officials seeking to avoid that fate probably shouldn’t be working for Senator Reid.

There’s an equally and perhaps more effective remedy for missed deadlines: if an agency lets a rulemaking deadline slip, that terminates its authority to issue any kind of rule on the subject. That perfectly natural way of reading deadline provisions would turn half of the Dodd-Frank Act into the legal equivalent of a press release.

I can live with that.

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