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Argument recap: Jousting with Justice Ginsburg


Justice Ruth Bader Ginsburg sits low behind the Supreme Court’s bench, her head always slightly bowed; she never raises her voice, and, indeed, she is sometimes nearly inaudible.  But woe awaits a lawyer who gets on her wrong side; there is nothing to be gained from that but quiet scorn.  That happened on Tuesday, and a Washington lawyer’s one-note refrain was rather in need of an alternative, fall-back point; Ginsburg had done her best to blunt his preferred argument.

The case was Sebelius v. Auburn Regional Medical Center (docket 11-1231), and the audience could have been forgiven for nodding off: there was a whole lot of talk about “jurisdiction,” about “equitable tolling,” about “claims processing” authority, and about administrative law in general.  Billions of dollars of government money are at stake, but that was barely mentioned, and the nearly empty press rows in the courtroom betold the case’s lack of luster.

But Robert L. Roth was there, and with him came the drama.

Representing eighteen hospitals that believe the government tricked them into missing a chance to collect what Congress promised them under the Medicare program, Washington attorney Roth laid down a searing barrage of criticism of the Department of Health and Human Services, and accused it of trying to persuade the Court to let it be the judge of its own gross misconduct — as he put it, “the fox in charge of the chickens.”   It seems that, four years ago, a federal district judge in Washington had ruled that the formula which HHS used to pay hospitals for treating Medicare patients who were poor was seriously in error, leaving out many patients and thus skewing the reimbursement formula.  As Roth portrayed the calculation, it was anything but a benign mistake; it was “deliberate concealment,” with data kept from the hospitals so that they would not file protests on time, and all just to save Medicare funds.

It was clear from his argument (as it had been from his written brief) that Roth deemed this not only his best argument, but maybe the crucial one that was necessary for him to win.  What his clients want, simply, is some extra time to file their claims for Medicare reimbursement with the HHS board that has the power to revise those figures upward.  They missed the 180-day filing deadline that Congress had specified in Medicare law, and Roth wanted the Court to accept that they had missed it because the fox had flummoxed them.  What HHS had done, he said, was “undetectable and undisclosed.”  His clients, he indicated, are now entitled to a waiver of the 180-day deadline.

He was on notice early that his chosen emphasis on this perceived misbehavior was perhaps not his strongest argument: Justice Antonin Scalia told him that anyone who had felt victimized by a rule of procedure such as a filing deadline can “create a horrible,” and that that is not an argument for relaxing the rule when Congress has declared it.  “That’s easy to do,” Scalia said dismissively.  Standing his ground, Roth said that “the horrible we’re talking about here…is agency misconduct.  And it’s been a longstanding principle of law that defendants should not benefit from their own misconduct.”

Justice Ginsburg gently pounced.  “And why do you say that?” she asked.  “I mean, the record that we have says that [HHS] failed to use the best available data.  It doesn’t say anything about deliberate concealment.”  That was not an issue before the district judge who found the payment formula to be skewed, Roth replied, but it was the heart of their lawsuit.   He sought then to lay out the record of misconduct about which he was complaining, and stressed that his clients only learned about it years later, after they had missed the filing deadline for their readjustment pleas.

Answering questions from Justice Scalia and Justice Elena Kagan, Roth escalated his accusations, suggesting that what HHS had been doing was an attempt “to preclude this Court from reviewing” its misbehavior.  It was the first time he suggested that the Justices themselves had been shut out of an examination of what HHS had done.   A bit later, Justice Ginsburg returned to the fray, and insisted that Roth talk about whether his clients were entitled to more time to file their protests even if there had been no “deliberate concealment” by HHS of the facts behind its calculations.  Would it still be entitled to more time to file? she asked.  He didn’t respond directly, saying that more time to file should be available if the government knew that it had used bad data, and knew it was bad data.

It was soon clear that Ginsburg was not done with Roth.  She accused him (and, presumably, other lawyers for the hospitals) of failing to act diligently in filing their lawsuit demanding more time.  She suggested they waited to sue until after someone else had taken the lead to challenge the formula.

It was, all in all, not a comfortable outing for Roth.   But it wasn’t a whole lot more comfortable for HHS’s lawyer, Deputy Solicitor General Edwin S. Kneedler.  Although it is HHS’s basic position that the courts simply lack any authority to modify the 180-day deadline for filing a protest to a Medicare reimbursement, the Department also argues that its Secretary has long had the discretion to relax the deadline, and Kneedler had come to defend that proposition, too.   He had just started his argument when Chief Justice John G. Roberts, Jr., suggested that it was “a little bit of a facial incongruity” for the government to be arguing on the one hand that the courts could not suspend the filing deadline, but that HHS could.

Kneedler did not appear able, at any point, to show a sufficiently clear distinction between the two to satisfy the Justices.

The third lawyer appearing in the case, Harvard law professor John F. Manning, had the easiest time of the trio.  He had been selected by the Court to make the argument that no one — court or government agency, including HHS — could relax the 180-day filing deadline.  His only difficult moment came with Justice Ginsburg, when she reminded him that Congress had known for nearly forty years that the government had a rule giving itself permission to give hospitals more time to protest their reimbursement, and had done nothing about it.  He tried a lawyer’s response — Congress did not explicitly approve that exception — but it did not make much of an impression.

Recommended Citation: Lyle Denniston, Argument recap: Jousting with Justice Ginsburg, SCOTUSblog (Dec. 4, 2012, 4:02 PM),