Administrative Litigation

We have extensive experience litigating administrative disputes. Below are some of the agencies with which we have experience:

  • Centers for Medicare and Medicaid Services
    We have represented clients in a variety of contexts before CMS. We have represented several states in connection with their efforts to reform their Medicaid programs. Most recently, we successfully represented Tennessee in such an effort. As a result of our efforts before CMS and in related litigation in the Middle District of Tennessee and the Sixth Circuit, Tennessee expects to save hundreds of millions of dollars a year. We have also successfully litigated against CMS. On behalf of New York Life, we successfully invalidated an effort to apply a provision of the Medicare as Secondary Payer require to its agents. Our suit saved New York Life more than $15 million.
  • Customs Bureau
    We represented Ford Motor Company in a dispute with the Customs Bureau over alleged fraud and negligence in the importation of motor vehicle engines and transmissions. The court of appeals barred the Custom Bureau’s attempt to impose $5.3 million in additional duties against Ford.
  • Department of Agriculture
    We have successfully tried several matters before the administrative courts of the Department. Most recently, we have defeated the Department in an enforcement matter tried before an administrative law judge. We also represent the Hawthorn Corporation in connection with adverse regulatory action taken by the Department. We successfully obtained a stay of proposed Department action.
  • Department of Justice
    We have had extensive dealings with the Department of Justice in a broad range of contexts. We have coordinated litigation with the Department, settled litigation with the Department, and defeated the Department in a variety of litigated disputes.
  • Department of Transportation
    We represented American Airlines in connection with its defense of a Department of Transportation regulation that allocated the cost of building American’s new terminal at Miami International Airport among all of the airport’s carriers. The court of appeals held that this method of funding the new construction was reasonable. We also represented Delta Airlines in contesting a decision by the Department of Transportation to award two international airline routes to American Airlines.
  • Drug Enforcement Agency
    We successfully represented Wedgewood Village Pharmacy in its petition for appellate review of a DEA order revoking its registration and denying its petition for reconsideration. The court of appeals held that the DEA’s revocation of the pharmacy’s registration was arbitrary and capricious.
  • Equal Employment Opportunity Commission
    We represented Local 28 of the Sheet Metal Workers International in an appeal from a finding of contempt resulting from the union’s failure to meet a court-ordered minority membership goal. We successfully argued that the district court’s substantial back pay award should be vacated.
  • Federal Communications Commission
    We have represented Verizon, Covad, DirecTV, Echostar, and others in matters challenging and defending the validity of FCC regulatory action.

We represent Harbinger in a multibillion dollar breach of contract case against the United States government. Harbinger invested billions of dollars building out a nationwide cellular network in reliance upon its contract with the government. After this investment was made, Congress passed a law forbidding Harbinger from utilizing its newly constructed network.

  • Federal Deposit Insurance Corporation and Office of Thrift Supervision
    We have represented many of the nation’s largest financial institutions in disputes with federal banking regulators. Our clients have included Bank of America, TCF Bank, Fleet, Coast Federal Savings, the Ford Motor Company, and AmBase Corporation. Much of our representation has focused on the government’s breach of contract in implementing FIRREA. In these Winstar cases, named after the landmark case argued by Mr. Cooper before the Supreme Court, our clients have been awarded hundreds of millions of dollars in damage.

In Community Financial Services Association v. FDIC, we represent the CFSA in a suit challenging the legality of Operation Choke Point under the APA and the due process clause. The suit alleges that the banking regulators have adopted a sweeping and amorphous conception of “reputational risk” that is unauthorized by statute and was adopted without notice and comment.

  • Federal Election Commission
    In FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994), we represented the National Rifle Association Political Victory Fund in an action brought by the FEC alleging violation of campaign contribution regulations. We successfully argued that the composition of the FEC violated the separation of powers. More recently, we represented the NRA in its challenge to the FEC’s role in implementing the McCain-Feingold legislation.
  • Federal Housing Finance Agency
    We represent Fairholme Funds and a number of insurance companies challenging the validity of the nationalization of Fannie Mae and Freddie Mac. The suits challenge the government’s arrogation of 100 percent of the companies’ profits for itself in contravention of FHFA’s and Treasury’s statutory authority, binding contractual commitments, and the takings clause of the Fifth Amendment. To date, the government has benefited by over $130 billion from its illegal conduct.
  • Federal Trade Commission
    We have represented several clients in consultations with the Commission. These engagements have focused on issues relating to competition issues.
  • Department of Energy and Nuclear Regulatory Commission
    We represented the State of Nevada in federal court litigation challenging decisions by these and other agencies concerning the designation of a site at Yucca Mountain, Nevada as the nation’s nuclear waste repository. Our attorneys also have experience representing utilities in proceedings before the NRC and in other litigation regarding the disposal of nuclear waste.
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