Tag Archives: 10-1070

No One Says “Dissental”

The latest volley in the debate over the propriety of dissents from the denial of rehearing en banc came yesterday from Chief Judge Alex Kozinski of the Ninth Circuit and a former clerk in an essay entitled I Say Dissental, You Say Concurral. Continue reading

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Supreme Court Could Decide Whether Retroactive Rulemaking Requires Express Statutory Authorization

[Update: The Supreme Court denied cert on Monday, November 7, 2011.]

At its conference tomorrow, the Supreme Court will consider whether to grant cert in a D.C. Circuit case only an admin lawyer could love: National Petrochemical & Refiners Ass’n v. EPA, No. 11-102 (S. Ct.). Continue reading

D.C. Circuit Rejects HHS’s Retroactive Application of New Medicare Reimbursement Policy

Northeast Hospital Corp. v. Sebelius, No. 10-5163 (Sept. 13, 2011) (Griffith, J., joined by Garland, J., with concurrence in the judgment by Kavanaugh, J.)

In this case, the D.C. Circuit affirms summary judgment in favor of a hospital that was undercompensated by Medicare. Although the majority concludes the statutory formula for calculating a hospital’s “disproportionate share hospital” (“DSH”) adjustment is ambiguous as to how Medicare Part C enrollees should be counted, all three members of the panel agree HHS’s application of a new statutory interpretation was impermissibly retroactive. The case raises questions about the direction of the Court’s retroactivity doctrine. Continue reading