Anybody with children has heard the “everybody-does-it” excuse.  You know, you scold your child for eating junk food.  Before the words are out of your mouth, you hear, “All the other kids do it.”

If that sounds familiar, your child may have a future as a lawyer for Health & Human Services.  Because that’s one of the primary arguments asserted by HHS last Friday in its motion to dismiss the lawsuit by the American Hospital Association seeking to compel HHS to resolve Medicare appeals with the 90 days specified by statute.  What’s supposed to be a 90-day period has stretched to an average of 500 days by last July, and it’s getting longer every day.

The Department moved to dismiss the case.  Its 33-page brief makes a number of arguments, prominent among them the “all-the-other-agencies-do-it” defense.  That is, federal agencies routinely flout their statutory timetables and the courts let them get away with it.  In one case cited by HHS, the FDA took as long as 669 days when the statute specified a maximum of 180 days.  The court didn’t do anything about it.  In another, the Department of Labor got away with delays of up to four years beyond the deadline in acting on alien labor certifications. Then there’s the case the Mine & Safety Health Administration: a whopping eight years delinquent, and still no court mandate.

So, the HHS brief reasons, statutory time requirements aren’t binding on the government.  They’re more of a Platonic ideal.  And courts shouldn’t – and don’t – hold agencies to them.  Sure, HHS is thumbing its nose at the statutory deadline, but that’s okay.  All the agencies do it.