Saint Francis Memorial Hospital et al v. Leavitt

Filing 24

ORDER RE: JOINT STATEMENT REGARDING THE PARTIES' VIEWS ON ALTERNATIVE DISPUTE RESOLUTION. The parties need not participate in ADR at this time. Signed by Judge Maxine M. Chesney on September 16, 2008. (mmclc1, COURT STAFF) (Filed on 9/16/2008)

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JOSEPH P. RUSSONIELLO (CABN 44332) United States Attorney JOANN M. SWANSON (CABN 88143) Chief, Civil Division JULIE A. ARBUCKLE (CABN 193425) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: [phone] Fax: [phone] E-mail: [e-mail] U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES OFFICE OF GENERAL COUNSEL JONATHAN C. BRUMER 330 Independence Ave., S.W., Room 5344 Washington, D.C. 20201 Telephone: [phone] Attorneys for Federal Defendant LAW OFFICES OF GARY E. GLEICHER GARY E. GLEICHER 433 N. Camden Dr., Suite 730 Beverly Hills, CA 90210 Telephone: [phone] Fax: [phone] HONINGMAN MILLER SCHWARTZ & COHN LLP KENNETH R. MARCUS 660 Woodward Avenue 2290 First National Building Detroit, MI 48226-3506 Telephone: [phone] Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ST. FRANCIS MEMORIAL HOSPITAL ) ) AND FRANKLIN BENEVOLENT CORPORATION f/k/a DAVIES MEDICAL ) ) CENTER, ) ) Plaintiffs, ) ) v. ) ) MICHAEL O. LEAVITT, Secretary, ) U.S. Department of Health and Human ) Services, ) ) Defendant. ) No. C 08-1440 (MMC) JOINT STATEMENT REGARDING THE PARTIES' VIEWS ON ALTERNATE DISPUTE RESOLUTION AND ORDER THEREON

J O I N T STATEM E N T RE: THE PARTIES' VIEWS ON ADR - Case No. 08-1440 MMC

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During and immediately following the Initial Case Management Conference which was held on August 22, 2008, this Court instructed the parties to submit a joint statement regarding their respective positions regarding whether this case is a suitable candidate for Alternate Dispute Resolution and/or settlement. See Docket Entry No. 20. In response to this directive, the parties now submit this Joint Statement regarding their views on alternate dispute resolution. In the past few weeks, the parties and their counsel have carefully considered and had numerous, extensive, and serious internal deliberations and conversations with each other concerning the following matters: (1) their respective legal positions and understanding of the case; (2) the possibility of a monetary settlement; (3) the prospect of a settlement agreement awarding the only relief that Plaintiffs are seeking in this action, a remand to the Provider Reimbursement Review Board ("PRRB"); and (4) the question of whether court-supervised alternate dispute resolution ("ADR") would be beneficial in this case to the parties and Court alike. The parties have concluded that court supervised ADR would not be beneficial or appropriate in this case for at least five reasons. First, the parties believe that they clearly understand the legal issue before this Court as well as the strengths and weaknesses of their respective positions, and require no ADR to improve their insight into these matters or to narrow the issues in dispute and identify areas of agreement. See ADR Local Rule 1-2(a) (identifying such a improved "clarity of understanding" as one possible reason that resort to ADR may be appropriate in a given case); see also Dispute Resolution Procedures in the Northern District of California at 4-5 (same). The parties agree that the issue before the Court is a clear and discrete legal issue which they believe is fully developed, which they feel ready to brief, and which they believe the Court is competent to resolve. Second, the parties do not believe that ADR can serve here to "help settle all or part of [this] dispute." See Dispute Resolution Procedures in the Northern District of California at 4. The parties agree that there is no realistic prospect of a settlement at this juncture. The legal issue before the Court is a binary issue as to which no middle ground exists: either the PRRB was correct in its jurisdictional decisions or not. Defendant contends that as no monetary amount is presently at issue in this case, there is technically no dollar amount in controversy which could

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otherwise be the subject of a compromise between the parties. Defendant's position is that while it is always possible to assign some monetary value to a case, that is difficult to do here as a basis of settlement because the underlying merits are not before this Court. Moreover, Defendant believes that the jurisdictional issue that is before the Court is an important one that should be resolved by judicial review. Plaintiffs would be prepared to participate in ADR to negotiate monetary relief. Third, ADR is not needed here to facilitate "the parties' access to evidence," to help "streamline discovery," or to help the parties "reach factual . . . stipulations." See ADR Local Rule 1-2(a) and Dispute Resolution Procedures in the Northern District of California at 5 (identifying these as possible reasons that resort to ADR may be appropriate in some cases.). This case is governed by the standards set forth in the Administrative Procedure Act, and judicial review under the Administrative Procedure Act is generally limited to the record before the agency. The relevant facts in this case are undisputed and contained in the certified administrative record which has been filed with the Court. However, Plaintiffs contend that they reserve the right to request discovery after they have had an opportunity to review the administrative record in this case. Fourth, the formal litigation of this case is not likely to impose "large economic burdens" and result in the sort of "delay" in the resolution of disputes which often are associated with litigation, minimizing the need for ADR on this basis. See ADR Local Rule 1-2(a). As mentioned, the issue before the Court is a clear and discrete legal issue. Moreover, the parties agree that a trial will not be necessary or appropriate in this action, limiting the economic costs and delay associated with this litigation in this case, as compared to the typical case. Instead, the parties anticipate that this case may be resolved in relatively short order, based on a consideration of the dispositive motions for summary judgment which they intend to file along with any oral argument which this Court may order. Fifth, the parties do not believe that ADR is required in this case to "improve the quality and tone of communication between parties," or to "decrease hostility between clients and between lawyers." See Dispute Resolution Procedures in the Northern District of California at 5.

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Counsel have had an amicable and professional relationship to date, and expect that will continue. Finally, Defendant contends that ADR would not be useful in this case because it "prefers that a judge preside over all processes." See Dispute Resolution Procedures in the Northern District of California at 5. As the case proceeds, the parties are fully prepared to revisit these matters if circumstances or their view of the case changes. Respectfully submitted, LAW OFFICES OF GARY E. GLEICHER ________/s/_____________ Gary E. Gleicher 433 N. Camden Dr., Ste. 730 Beverly Hills, CA. 90210 Tel.: [phone] Fax: [phone] JOSEPH P. RUSSONIELLO United States Attorney ________/s/_____________ Julie A. Arbuckle Assistant United States Attorney 450 Golden Gate Avenue, 9th Floor San Francisco, CA 94102 Tel.: [phone] Fax: [phone]

________/s/_____________ Kenneth R. Marcus Honigman Miller Schwartz and Cohn LLP 660 Woodward Avenue 2290 First National Building Detroit, MI 48226-3506 Tel.: [phone] Attorneys for Plaintiffs

________/s/_____________ Jonathan C. Brumer U.S. Department of Health and Human Services Office of the General Counsel Centers for Medicare and Medicaid Services Division 330 Independence Ave., S.W., Room 5344 Washington, D.C. 20201 Tel.: [phone] Attorneys for Federal Defendant

Dated: September 12, 2008

Dated: September 12, 2008

APPROVED AND SO ORDERED. The parties need not participate in ADR at this time. Dated:_S_ptember _______ _ e_______16, 2008 __________________________ MAXINE M. CHESNEY United States District Judge

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