When I served on the D. C. Circuit, the hoped-for deadline to issue opinions was three months after oral argument. That is a deadline I’m not certain that I ever met! Frequently late summer releases involve opinions that, for one reason or another, have proven vexing to write. Their releases are met with sighs of relief. Last week, opinions  were issued in cases that had been argued last September, October, December, January, March, and April. Let’s take them in the order in which they were argued.

Pomona Valley Hospital Medical Center v. Xavier Becerra, 20-5350, was argued September 6, 2022. Pomona Valley Hospital sued the Department of Health and Human Services claiming that the agency undercounted the number of Social Security patients the hospital had treated. The Provider Reimbursement Review Board sided with the agency despite its failure to offer any evidence to rebut the hospital’s evidence of an undercount. The district court granted summary judgment to the hospital and the D. C. Circuit affirmed and remanded the case to the Board in an opinion written by Judge Katsas and joined by Judges Millett and Walker.

Valancourt Books, LLC v. Merrick Garland, No. 21-5203, was argued October 13, 2022. Under Section 407 of the Copyright Act, the owner of a copyright  must deposit two copies of the work with the Library of Congress after publication. In Valancourt Books, an independent press sued claiming that the Copyright Office’s demand of copies of Valancourt’s published books on the pain of fines was an unconstitutional taking under the Fifth Amendment. In an opinion written by Judge Srinivasan, and joined by Judge Henderson and Senior Judge Edwards, the court agreed.

Ascendium Education Solutions, Inc. v. Cardona, No. 22-5104, was argued December 15, 2022.  Ascendium is a guarantor of federal student loans that challenged a final rule promulgated by the Department of Education (“DOE”) prohibiting the charging of collection costs against borrowers who take certain action to remove their loans from default within 60 days.  See 34 C.F.R. § 682.410(b)(2)(i). The court rejected Ascendium’s challenge in an opinion written by Judge Pan, and joined by Judges Wilkins and Walker, reasoning that the Higher Education Act of 1965 does not define what “collection costs” are “reasonable,” leaving an explicit “gap” for DOE to fill. The court held that the DOE reasonably determined that tasks performed by the guarantor immediately following default are largely administrative and not “reasonable collection costs.” Judge Walker wrote a concurring opinion, in which he noted that the deference owed the agency does not derive from Chevron, but instead from Congress’s express delegation of authority to the agency to determine what collection costs are “reasonable.”

Fontem US, LLC v. FDA, 22-1076, was argued January 25, 2023. Inan opinion by Judge Rao and joined by Judge Walker and Senior Judge Ginsburg, the court held that the FDA acted within its authority when it rejected Fontem’s applications for flavored vaping products, but not when it rejected its applications for unflavored products. With regard to flavored products, the court found that Fontem did not produce sufficient evidence that the risk of flavored vaping products for youth would be outweighed by the benefit to adult smokers. But with regard to unflavored products, the court held that the FDA erred because it failed to conduct an analysis of public health consequences like it did for the flavored products.

Grayscale Investments, LLC v. Securities & Exchange Commission, No. 22-1142, was argued on March 7, 2023. In an opinion written by Judge Rao and joined by Chief Judge Srinivasan and Senior Circuit Judge Edwards, the court vacated as arbitrary and capricious an order of the Securities and Exchange Commission that denied the application of Grayscale to allow trading of its bitcoin fund on the spot markets of a national exchange because the Commission failed to explain how Grayscale’s proposal was materially different from the bitcoin funds the Commission had recently approved for trading on the futures markets.

Advocate Christ Medical Center v. Becerra, No. 22-5214, was argued on April 14, 2023. Over 200 hospitals sought additional Medicare reimbursement for having served a “disproportionate share” of low-income patients, arguing that the Department of Health and Human Services (“HHS”) had incorrectly interpreted the statutory criteria by not counting all the patients on Social Security during their time of hospitalization and instead counting only those patients who received monthly cash payments during the time of their hospitalization. The D.C. Circuit, in an opinion written by Judge Katsas and joined by Judges Henderson and Pan, sided with HHS.