The US Supreme Court heard oral arguments on Tuesday in two cases.

The first, Home Depot v. Jackson, asks whether a class action defendant can remove the case from state to federal court under the Class Action Fairness Act (CAFA), despite the now plaintiff and former defendant not agreeing to removal.

Petitioner Home Depot argued that because the original defendant, the Respondent, asserted a counterclaim against Home Depot, the Respondent has become a plaintiff and the statute does not require the plaintiff to agree to removal. Only the defendants must agree. Respondent takes the opposite position, saying all defendants, whether original, cross, or counter defendants, must consent to removing the case to federal court in accordance with the CAFA and the jurisdiction statute.

The second case, Azar v. Allina Health Services, asks whether the Department of Health and Human Services (HHS) was required to undergo notice and comment prior to altering the rules governing payment of services under the Medicare Act. HHS is required to undergo notice and comment rule making procedures when it seeks to “establish[] or change[]” a “substantive legal standard” concerning payment procedures. In this case, HHS provided “instructions to a Medicare Administrative Contractor that makes initial determinations of payments due under Medicare.”

The Petitioner, the HHS Secretary, argued that it was not required to undergo notice-and-comment prior to providing instructions in this one instance, saying: “That calculation was not binding on the agency, the courts, or Respondents, and it could be challenged on administrative appeal, as, in fact, Respondents did here.” The Respondent push back saying the instruction to count certain services as Part A rather than Part C services, is “binding in every normal sense of the word.” Despite being permitted to file an administrative appeal or lawsuit in court, the hospital is otherwise bound to the payment determinations.

Justice Brett Kavanaugh recused himself from the case.