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Delay Sought on ACA Challenge in D.C. Circuit Court of Appeals

"Lawyers for challengers to the subsidy system that exists under the [ACA] ... asked the full U.S. Court of Appeals for the District of Columbia Circuit on [November 10] to put a pending appeal on that issue on hold while the Supreme Court reviews the controversy.... 'Simply put,' the motion said, 'there is no reason to consume the substantial resources associated with en banc rehearing when the Supreme Court is poised to decide the same issue on virtually the same timeline.' "

Text of D.C. Court of Appeals Order Dismissing U.S. Airways Pilots' Challenge to PBGC Benefit Determinations (PDF)

23 pages. Excerpt: "Appellants are approximately 1,700 retired U.S. Airways pilots and their beneficiaries ... They appeal the grant of summary judgment to the [PBGC] on their claims regarding pension benefits payable under the terminated Retirement Income Plan for U.S. Airways Pilots. Of the Pilots' twelve claims, three claims are not appealed and four claims that are appealed but were not briefed are forfeited. For the following reasons, upon de novo review ... we affirm as to the five remaining claims."

Text of D.C. Circuit Court of Appeals Opinion: ACA Subsidies Are NOT Legally Allowed for Policies Purchased on Federally-Run Exchanges (PDF)

72 pages. Excerpt: "We conclude that appellants have the better of the argument: a federal Exchange is not an 'Exchange established by the State,' and section 36B does not authorize the IRS to provide tax credits for insurance purchased on federal Exchanges. We reach this conclusion by the following path: First, we examine section 36B in light of sections 1311 and 1321, which authorize the establishment of state and federal Exchanges, respectively, and conclude that section 36B plainly distinguishes Exchanges established by states from those established by the federal government. We then consider the government's arguments that this construction generates absurd results but find that it does not render other provisions of the ACA unworkable, let alone so unreasonable as to justify disregarding section 36B's plain meaning. Finally, turning to the ACA's purpose and legislative history, we find that the government again comes up short in its efforts to overcome the statutory text." [Halbig v. Burwell, No. 14-5018 (D.C. Cir. July 22, 2014)]

Text of D.C. Court of Appeals Grant of Petition for En Banc Rehearing of Challenge to ACA Subsidies (PDF)

"Upon consideration of appellees' petition for rehearing en banc, the response thereto, and the vote in favor of the petition by a majority of the judges eligible to participate, it is ordered that the petition be granted. Case No. 14-5018 will be reheard by the court sitting en banc. It is further ordered that the judgment filed July 22, 2014, be vacated. It is further ordered that the oral argument before the en banc court be heard at 9 :30 a.m. on Wednesday, December 17, 2014." [Halbig v. Burwell, No. 14-5018 (D.C. Cir. Sept. 4, 2014)]

Text of D.C. Court of Appeals Decision Affirming Dismissal of J.C. Penney Stock Drop Suit (PDF)

"Throughout the entire period that the value of J.C. Penney common stock dipped ever lower, Evercore [Trust Company] stood resolute.... The shares in the Penney Stock Fund that [plaintiff and plan participant Donna Marie Coburn] and other investors owned took the full force of the hit.... [T]he district court granted Evercore's motion to dismiss the complaint for failure to state a claim ... [primarily] relying on the United States Supreme Court's opinion in Dudenhoeffer ... [B]ecause a stock price on an efficient market reflects all publicly available information, Dudenhoeffer requires additional allegations of 'special circumstances' when a plaintiff brings a breach of the duty of prudence claim against a fiduciary based on that information.... Applying Dudenhoeffer here, we believe Coburn's claim falls far short." [Coburn v. Evercore, No. 16-7029 (D.C. Cir. Dec. 30, 2016)]

D.C. Court of Appeals: Delta Pilots Cannot Recover Fiduciary Breach Damages from Plan's Post-Termination Investment Gains (PDF)

"The Corporation argues that it is entitled under Section 1344(c) to any post-termination increase in the value of pension plan assets. In other words, the Corporation reasons, Congress has already decided who benefits or suffers the loss from a change in the value of plan assets once that plan has been terminated. Therefore, the Corporation concludes that the pilots cannot recover that money as equitable relief for an alleged breach of fiduciary duty. We agree.... The pilots' request for post-termination investment gains is fundamentally flawed." [Lewis v. PBGC, No. 17-5068 (D.C. Cir. Dec. 21, 2018)]

Text of D.C. Court of Appeals Opinion Upholding HHS Cuts to Medicare Drug Reimbursement Rates (PDF)

42 pages. "[HHS] reduced the reimbursement rate for covered drugs by 28.5% ... for 340B hospitals because they can obtain drugs far more cheaply than other hospitals.... Several hospitals and hospital associations challenge HHS's decision, claiming that it rests on an impermissible construction of the governing statute.... We hold that HHS's decision to lower drug reimbursement rates for 340B hospitals rests on a reasonable interpretation of the Medicare statute." [American Hospital Ass'n v. Azar, No. 19-5048 (D.C. Cir. Jul. 31, 2020)]

D.C. Court of Appeals Invalidates CMS Rule Requiring Disclosure of Drug Prices in TV Ads (PDF)

19 pages. "In May 2019, [CMS] published a rule that broadly requires drug manufacturers to disclose in their television advertisements the wholesale acquisition cost of many prescription drugs and biological products for which payment is available under Medicare or Medicaid ... The Department acted unreasonably in construing its regulatory authority to include the imposition of a sweeping disclosure requirement that is largely untethered to the actual administration of the Medicare or Medicaid programs. Because there is no reasoned statutory basis for its far-flung reach and misaligned obligations, the Disclosure Rule is invalid and is hereby set aside." [Merck & Co. v. HHS, No. 19-5222 (D.C. Cir. Jun. 16, 2020)]

Text of DC Court of Appeals Opinion Rejecting Challenge to Contraceptive Mandate Accommodation (PDF)

86 pages. "All Plaintiffs must do to opt out is express what they believe and seek what they want via a letter or two-page form. That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations' compliance with law in the modern administrative state.... The accommodation requires as little as it can from the objectors while still serving the government's compelling interests. Because the regulatory opt-out mechanism is the least restrictive means to serve compelling governmental interests, it is fully consistent with Plaintiffs' rights under RFRA." [Priests for Life, et al. v. Burwell, Nos. 13-5368, 13-5371, 14-5021 (D.C. Cir. Nov. 14, 2014)]

D.C. Court of Appeals Grants Injunction in Contraceptive Mandate Case (PDF)

71 pages; one concurring opinion, one dissent. Excerpt: "[The court] must determine whether the contraceptive mandate imposed by the Act trammels the right of free exercise -- a right that lies at the core of our constitutional liberties -- as protected by the Religious Freedom Restoration Act. We conclude it does.... The burden is too remote and too attenuated, the government says, as it arises only when an employee purchases a contraceptive or uses contraceptive services. We disagree with the government's foundational premise. The burden on religious exercise does not occur at the point of contraceptive purchase; instead, it occurs when a company's owners fill the basket of goods and services that constitute a healthcare plan. In other words, the Gilardis are burdened when they are pressured to choose between violating their religious beliefs in managing their selected plan or paying onerous penalties." [Gilardi v. HHS, No. 13-5069 (D.C. Cir. Nov. 1, 2013)]