Agency Action Challenges

Federal and state administrative agencies have multiple roles: They act like legislatures when publishing regulations, function in an executive capacity when implementing and enforcing statutes, and operate in a quasi-judicial manner when issuing opinion letters or when making decisions based on their interpretation of statutes and regulations.

Several U.S. Supreme Court decisions in 2024 have reshaped the administrative state, removing crucial advantages that federal agencies have enjoyed for decades and opening the door to new challenges to government action.

When agency action adversely affects your business or industry sector, you need a trusted advisor to guide you through complex regulatory schemes in order to challenge the agency action effectively.  

Epstein Becker Green’s Agency Action Challenges Team (AACT) has a deep understanding of administrative law and the regulatory landscape affecting employers and health care organizations. We help clients take initiative and control of matters before government agencies in a variety of federal and state administrative hearings and in litigation challenging agency actions that are unreasonable or unlawful.  

About Us

The AACT comprises members with extensive experience working at key agencies, including the U.S. Department of Health and Human Services (HHS), the U.S. Department of Labor (DOL), the National Labor Relations Board (NLRB), the U.S. Food and Drug Administration, the Federal Trade Commission (FTC), and the U.S. Department of Justice, as well as in state governments. Our team also includes seasoned litigators with significant experience challenging agency actions in courts nationwide.

Effective Advocacy and Representation

When agencies publish rules or make determinations that adversely affect our clients, the AACT leverages its extensive experience to represent our clients in hearings and appeals before administrative bodies, including multiple components of HHS, the Equal Employment Opportunity Commission (EEOC), the DOL, the NLRB, the FTC, and other federal and state administrative agencies.

Additionally, when clients want to directly challenge regulations and regulatory action or inaction in court, they turn to the AACT. Whether you are a provider, payer, distributor, manufacturer, employer, coalition, or trade association, we can help you challenge agency regulations or rules, final agency decisions, or agency interpretations of statutes or regulations in courtrooms across the country. We can draw on the knowledge of attorneys at our firm with subject-matter experience, as well as consultants from our affiliate, EBG Advisors, when crafting effective litigation strategies aligned with your business objectives.

Experience

Challenges to agency action can be brought in a variety of forums, including  agency administrative law judges, agency appeals boards, and  state and federal courts. Our state and federal agency action challenges attorneys have achieved tangible results for our clients in all of these forums. Here are a few examples of our work:

• Successfully challenged DOL wage and hour regulations, including a ruling in August 2024 by the U.S. Court of Appeals for the Fifth Circuit in Restaurant Law Center and Texas Restaurant Association v. U.S. Department of Labor, et al. vacating the 80/20/30 tip credit regulation.
• Successfully challenged Medicare coverage policies that conflicted with the Medicare statute or national coverage determinations.
• Obtained injunctive relief for a hospital that allowed it to remain in a federal health care program.
• Prepared an amicus brief in support of challenges to FTC regulations affecting employers.
• Obtained a final order from CMS overturning an initial decision to deny approximately $5 million in Medicare reimbursement to a hospital.
• Brought litigation challenging a long-standing DOL Fair Labor Standards Act interpretation, ultimately leading to a legislative compromise embodying the change our clients sought.
• Successfully challenged the revocation of a Medicare supplier’s billing privileges.
• Represented a clinical laboratory in multiple hearings, resulting in favorable Medicare coverage.
• Served as an expert witness in litigation involving penalties imposed by CMS.
• Represented employers in investigations and enforcement actions brought by federal and state administrative agencies, including the DOL and EEOC.
• Prepared amicus briefs in support of challenges to DOL regulations, including regulations that affect the classification of independent contractors.

Opportunity

Recent changes in the law have created new opportunities to challenge regulations and regulatory action that previously may have negatively, and perhaps unfairly, constrained employers and health care organizations. If you believe that a regulation or regulatory action is unreasonable or arbitrary, now is the perfect time to consult with your Epstein Becker Green attorney to explore your options in this evolving legal landscape.

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