Appeals Court Shuts Out Pro-ACA Brief to Keep a Judge in the Mix

A federal appeals court today blocked the law firm Gibson, Dunn & Crutcher from filing a pro-Affordable Care Act brief — because the submission would have kept an unidentified judge from ruling on a major ACA case, Texas v. United States.

The 5th U.S. Circuit Court of Appeals explained the ruling with an order pointing to a recently updated federal appeals court rule, and to a local court rule. Both the updated federal rule and the local rule let the 5th Circuit reject an "amicus brief" if accepting the brief would keep judge from participating in deliberations on a case.

An "amicus brief," or "friend of the court brief," is a paper from a party that's not directly involved in a court case. Individuals or groups file amicus briefs in an effort to show a court relevant information that has not yet been presented by the parties directly involved in a court case.

The 5th Circuit did not identify the judge who could have been affected by acceptance of the brief.

A Texas v. United States Primer

Officials in Texas and other states who oppose the ACA filed the suit in an effort to overturn the ACA. A district court judge in Texas has ruled in the plaintiffs' favor.

At the district court level, the Trump administration had been supporting the goal of overturning part of the ACA but had supported the idea of keeping most of the ACA intact. The Justice Department recently dropped its defense of most of the ACA and is now siding with Texas and the other states that want to throw out the entire law.

The 5th Circuit has not yet set an argument date for the case. The court also has not announced the names of the three-judge panel that will hear the case.

The Justice Department today asked the 5th Circuit to hear the case in July. "Prompt resolution of this case will help reduce uncertainty in the healthcare sector, and other areas affected by the Affordable Care Act," Martin Totaro wrote in the filing.

Officials in California, New York state and other states who support the ACA have been seeking permission from the 5th Circuit to intervene on behalf of keeping the ACA in place.

The Gibson Dunn Brief

The Gibson Dunn team — litigation partner Stuart Delery and Washington associates Andrew Wilhelm and D. William Lawrence — represented two parties: First Focus and The Children's Partnership.

Both of those parties are nonprofit groups that are backing the pro-ACA states.

Delery, formerly an Obama-era acting associate attorney general at Main Justice in Washington, was not immediately reached for comment Monday.

Gibson Dunn's brief said the various parties in the case had consented to its filing. "No party, counsel for a party, or any person other than amici curiae and their counsel made a monetary contribution to the preparation or submission of this brief," the Gibson Dunn lawyers wrote in a footnote.

The 5th Circuit's order did not scrub Gibson Dunn's court filing entirely from the court's website, but it did lock the file and prevent anyone from opening it. The filing was, until now, publicly available on the 5th Circuit's website.

"The ACA indisputably benefits millions of children, young adults, and their families," the Gibson Dunn lawyers wrote in the amicus brief. "Infants born with complex medical issues can receive care without fear of annual or lifetime limits; young adults navigating their first jobs or higher education have the protection of their parents' insurance; other children receive care through Community Health Centers and home visits."

The Gibson Dunn lawyers added: "Given that Congress did not repeal these provisions or countless others, there is no basis to conclude that it would want the courts to strike them down — particularly given the millions of American children whose lives have been changed (and saved) because of the ACA, and given how deeply the ACA is now woven into the fabric of the nation's healthcare system and economy."

Which Judge Would Have Had to Recuse?

The 5th Circuit's clerk, Lyle Cayce, declined to comment on Monday's order.

Former Gibson Dunn partner James Ho was confirmed in 2017 to a seat on the 5th Circuit.

It's not uncommon for judges to weigh potential conflicts of interest arising from the appearance in court of individuals or filing from the judge's previous employer.

Ho's wife, Allyson Ho, is a Gibson Dunn partner in Dallas. She joined the firm last year from Morgan, Lewis & Bockius.

An amendment to the federal rules of appellate procedure that took effect in December 2018 says "a court of appeals may prohibit the filing of or may strike an amicus brief that would result in a judge's disqualification."

Several appellate courts had adopted local rules forbidding the filing of an amicus brief that could cause the recusal of one or more judge, and the new federal rule harmonized how courts were handling amicus briefs and recusals. There was some opposition to the proposed rule, including the argument that amicus-based recusals are rare and the fact that the rule could "prove wasteful if an amicus curiae pays an attorney to write a brief which the court then strikes."

— Read Trump Administration Asks 5th Circuit to Let All of ACA Die, on ThinkAdvisor.

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