Notice & Comment

DC Circuit Review Reviewed: A Reissued Opinion in a Significant Case

In the “bad old days,” the D.C. Circuit was the butt of many a joke – deserved or not – about the sleep-inducing qualities of its opinions. When I was running the gauntlet of the nominations process, a White House lawyer asked me, in all seriousness, “Tom, how can you stand the thought of spending the rest of your life writing about the cases the D.C. Circuit hears?” Then-Professor Elena Kagan made the same point in a lighter vein at a Harvard Law School banquet in 2001 honoring Merrick Garland. (You will recall that President Clinton had nominated Kagan to fill a vacancy on the D.C. Circuit, but she was never given a hearing. That vacancy was eventually filled by Chief Justice Roberts, and Kagan ended up doing just fine!) As reported by Adam Liptak in the New York Times, “Ms. Kagan gently mocked some of Judge Garland’s judicial opinions. One, she said, was an ‘eight-page analysis of the word ‘meeting’ as used in a federal law.’ .  .  . Ms. Kagan said she took some comfort from that decision and others like it. ‘Sometimes people ask me: Do you feel bad that your nomination was left hanging up there, that you never had a chance to be a D.C. Circuit judge?’ she said. ‘And, you know, if truth be told, sometimes I do,’ she went on. ‘But I’ve come up with a really good way to making those feelings go away. What I do is pick up another D.C. Circuit opinion.’” Adam Liptak, Rare Breed Now: A Justice Who Wasn’t a Judge, N.Y. Times (Apr. 30, 2010),

A generation later, some still think of the work of the D.C. Circuit, with its overload of complicated administrative law issues, as less than intriguing. (None of the readers of this blog!) But few can find fault with the clarity of its opinions. The judges of the D.C. Circuit work hard to achieve clarity of expression in complex cases. That effort is on full display in the only opinion the Court released this week, an amended re-issuance of an opinion first released in August, UnitedHealthcare Ins. Co. v. Becerra, 9 F.4th 868 (D.C. Cir. Aug. 13, 2021), superseded by No. 18-5326 (D.C. Cir. Nov. 1, 2021).  In the August release, Judge Nina Pillard (joined by Judges Rogers and Walker) reversed the judgment of the district that a rule promulgated by the Centers for Medicare & Medicaid Services conflicted with the Affordable Care Act. For 49 pages, Judge Pillard walks us through the intricacies (is that an understatement?) of Medicare in general (a topic in which, given my age, I now have a real interest in understanding) and Medicare Advantage in particular. She explains with great clarity the contested Overpayment Rule and its complicated (another understatement?) relationship with the requirement of the Affordable Care Act that entities that receive payments from federal healthcare programs, such as Medicare Advantage insurers, return “overpayments,” defined in the Rule as payments for diagnoses lacking medical record support. Failure to report and return overpayments triggers the False Claims Act. As has been widely noted, the panel’s opinion is highly consequential for Medicare Advantage insurers who may now be on the hook for large sums of overpayments under the Affordable Care Act and face liability under the False Claims Act. A controversy is looming over the panel’s adoption of an argument that no party had urged – that “actuarial equivalence” has no bearing on overpayment – but more about that if and when UnitedHealth seeks Supreme Court review. The D.C. Circuit re-issued the August opinion last week upon the request of UnitedHealth for an amendment to make clear that the panel reversed the district court’s ruling that the Overpayment Rule was inconsistent with the Affordable Care Act but not its judgment that the Rule unlawfully imposed a duty of care upon insurers to identify overpayments beyond what is required by the False Claims Act.

The Court also heard four days of oral arguments last week. One in particular caught my eye. In Fed. Express Corp. v. Dep’t of Commerce, No. 20-5337 (D.C. Cir. argued Nov. 5, 2021), the Court is considering what happens under the Export Control Reform Act when a delivery company unknowingly transports an unlawful package. Does the Act impose strict liability or target only knowing violations? In spirited questioning, Judge Millett probed the national security implications of the answer. Two FERC cases were argued last week, [Duke Energy Progress, LLC v. FERC, No. 20-1495 (D.C. Cir. argued Nov. 3, 2021); City of Salisbury v. FERC, No. 20-1238 (D.C. Cir. argued Nov. 2, 2021)], as were cases involving waiver of exhaustion [Turnbull v. SSA, No. 20-5365 (D.C. Cir. argued Nov. 1, 2021)]; the standing of a union to challenge an Obama-era work-permit program that allowed international students to extend their visas up to three years after completing their studies [Wash. All. of Tech. Workers v. DHS, No. 21-5028 (D.C. Cir. argued Nov. 3, 2021)]; whether one of the World Health Organization’s regional organizations is immune from liability even if it benefitted from a venture engaged in human trafficking [Rodriguez v. PAHO, No. 20-7114 (D.C. Cir. argued Nov. 3, 2021)]; a civil rights claim for an alleged “unlawful overdetention” of an inmate by the D.C. Department of Corrections [Smith v. Dist. of Columbia, No. 21-7006 (D.C. Cir. argued Nov. 1, 2021)]; an arbitrary and capricious challenge to some of the rates set by the FCC in its rules governing intercarrier compensation for toll-free calling services [Inteliquent, Inc. v. FCC, No. 20-1471 (D.C. Cir. argued Nov. 1, 2021)]; and an abuse of discretion review of the IRS Whistleblower Office’s rejection of a whistleblower award [Li v. Cmsnr. IRS, No. 20-1245 (D.C. Cir. argued Nov. 5, 2021)].

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