Fournier v Sebelius (Ninth District, CA) The law firm of Arnold & Porter submitted an amicus brief on behalf of NSCLC in support of a motion for rehearing and rehearing en banc in a Medicare case of potentially broad impact that could affect future litigation by NSCLC.
In a surprising opinion affirming the denial of a Medicare claim, the U.S. Court of Appeals for the Ninth Circuit gave Chevron deference (the highest level of deference) to a provision of a Medicare manual interpreting a provision of the Medicare statute. Fournier v. Sebelius, 718 F.3d 1110 (9th Cir. 2013). It did so on the theory that over the years it had gained the force of law through the process of administrative “adjudication of a vast number of claims.”
The issue of the proper degree of deference is an issue that occurs often in NSCLC’s Medicare and Social Security litigation. If this opinion were to stand it could make it significantly more difficult to challenge agency positions which have not been the subject of formal rulemaking.