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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.

Reader Discussion

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on February 25, 2016 at 09:20:35 am

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.

Huh?

Dodd-Frank has taken a long time to implement because there are plenty of well-financed people interested in delaying its implementation. Similarly, Congress has created any number of deregulatory schemes – rail, trucking, airlines, cable TV, petroleum, natural gas, financial institutions, telecom, electricity, even some workplace safety and pollution policies – that often required re-writing rules. And those rules have often been complicated, in part because plenty of well-financed people had an interest in the status quo. And you propose a “remedy” to reward stone-walling?

Or let’s take your example: The NRC has failed to license Yucca Mountain (not merely during the Obama Administration, but during all previous administrations as well). Should we conclude that the remedy should be to declare that the NRC is now deprived of the power to license Yucca Mountain?

I acknowledge, it’s hard to fashion a remedy. But it’s not clear to me that jurisdiction-stripping is an appropriate remedy. That policy would be as susceptible to manipulation as anything else.

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nobody.really
on February 25, 2016 at 10:41:52 am

I take your point. What I'm after is the second-order effect: give Congress an incentive not to write such statutes--or to revisit them when the deadline passes.

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Michael Greve
on February 25, 2016 at 14:45:00 pm

In these cases (out in the "weeds") are we not really observing the *collision of objectives* of "Positive Law" (Rules of Policy)?

Positive Law always has an objective. Its uses are attempts to establish means to particular ends.

The entire Federal Administrative State is constructed of Positive Law.

Particular benefits were the objective of the Positive Law creating Medicare.

Particular financial problems arose from the conflicting objectives of those providing Medicare services.

Further Positive Laws were enacted with the objective of dealing with those financial problems that arose from those conflicting objectives.

The objectives of those Further Positive Laws have collided with the objectives of the original Positive Laws that established Medicare.

That sequence has many other examples throughout the Federal Administrative State.

It just might be that the root of the problems caused by these collisions of objectives lies in the why and way in which Positive Laws come into being and are given effect.

Whether this ever metastasizing condition of collisions can be abated will probably be determined by diminution of, or ending, the public's acceptance of (or demand for) continuing programs of Positive Laws to deal with perceived "problems," the amelioration of private burdens, the creation of benefits, and the advancements of particular interests – all the province of a benevolent protective authority, today in the shape of the Federal Administrative State; but seen in history to evolve into tyranny.

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R Richard Schweitzer
on February 25, 2016 at 15:24:37 pm

In other administrative remedy news:

Obamacare promised “risk corridors” as a kind of re-insurance program for health plans that end up with costs exceeding 103% of expected levels – that is, plans that inadvertently attract a disproportionate share of sick people. Rubio led an effort to cap payments under this system. Insurance companies are now initiating a class action lawsuit to recoup their losses under the ACA from the Feds.

But suits in federal court are supposed to be over “cases and controversies,” and between parties at interest. Here, the Obama Administration has no incentive to defend the suit; hell, they WANT to make the payments and keep the insurers involved in the ACA marketplaces. And while Rubio may have succeeded in capping the funds available for making risk corridor payments, he did not similarly limit the federal Judgement Fund established to pay court judgments against the feds.

In short, once again we may observe a Congressionally-mandated policy thwarted by the Administration, with no obvious remedy in sight.

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nobody.really
on February 25, 2016 at 16:08:44 pm

You are probably right about Non-defense by the DOJ.

However, The PPACA did not create a "contractual" reinsurance obligation.

Swimming with Piranhas can be as dangerous as swimming with sharks.

That's what comes of expecting to reinsure transfers of costs vis a vis transfers of risks.

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Image of R Richard Schweitzer
R Richard Schweitzer
on February 26, 2016 at 12:07:46 pm

"Swimming with Piranhas can be as dangerous as swimming with sharks."

Yep - because piranhas, like sharks, are also capable of recognizing "occasions of sin" (original and new laws / regs) and capitalizing on them.
What is better - death by a thousand cuts - or one well aimed slash by the samurai's blade?

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.