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5th Cir. Blocks Gibson Dunn ACA Brief

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By William Vogeler, Esq. on April 16, 2019 6:00 AM

In a major Affordable Care Act case, an updated court rule came back to bite Gibson, Dunn & Crutcher.

Citing federal court rules on amicus curiae, the U.S. Fifth Circuit Court of Appeals struck the law firm's amicus brief in the case. The rules are intended to prevent conflicts of interest and other problems. That's not going to happen now that the Fifth Circuit ruled.

Judge James C. Ho knows why.

Judicial Disqualification

The Federal Rule of Appellate Procedure 29(a)(2) says an appeals court may strike an amicus brief that would result in a judicial disqualification. The Fifth Circuit did not identify the judge in striking Gibson Dunn's brief, but it didn't need to. Ho took his seat at the court of appeals in January 2018. Before that, he worked for Gibson Dunn on issues now pending before the appeals court.

In Texas v. USA, officials in Texas and other states filed the suit to overturn the Obamacare law. A trial judge ruled in their favor. The Justice Department has withdrawn its defense of the ACA, and has asked the appeals court to hear the case in July.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," attorney Martin Totaro wrote.

Gibson Dunn wanted to file on behalf of two nonprofit groups in support of the Act. The law firm anticipated an issue, but could not get around it.

No Conflicts?

The firm said various parties had consented to its participation in the case. It also suggested there were no conflicts. "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 lawyers wrote in a footnote.

After the ruling, the Fifth Circuit locked the court file. Until then it was available on the court's website. "The ACA indisputably benefits millions of children, young adults, and their families," Gibson Dunn said in the amicus brief. That argument, of course, doesn't matter anymore.

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