^®: CRE Regulatory Action of the Week

Government Seeks Revision of Prime Time Opinion in D.C. Circuit; Court Declines
Clearly worried about the potential impact of the D.C. Circuit's recent opinion in Prime Time Int'l v. Vilsack on the Ninth Circuit's pending decision in Americans for Safe Access v. HHS, in which the issue of judicial reviewability of agency Data Quality Act decisions is squarely at issue, the Government filed a petition for rehearing with the D.C. Circuit, even though it had won the case -- although perhaps a classic Pyrrhic victory.

The Government petition sought to have the D.C. Circuit clarify that its opinion did not mean that the DQA and its Guidelines created enforceable legal rights and thereby was in conflict with the Fourth Circuit's opinion in Salt Institute v. Leavitt.

The implications of the Prime Time decision for the pending ASA appeal in the Ninth Circuit were the focus of a recent CRE RegWeek article, in which CRE pointed out that the Prime Time opinion effectively held that the DQA Guidelines have the force of law, and that therefore the opinion could influence the pending Ninth Circuit ASA appeal and negate the controversial Salt Institute opinion. The Government petition expressly referenced and attached the CRE article to support its petition (attached to the petition as Exhibit B).

On May 10, the D.C. Circuit rejected the Government's petition without an opinion.