EMPIRE HEALTH FOUNDATION et al v. AZAR

Filing 45

MEMORANDUM OPINION re 44 Order on Motion for reconsideration. Signed by Judge James E. Boasberg on 5/6/2022. (lcjeb3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

EMPIRE HEALTH FOUNDATION, et al.,
Plaintiffs,
v.

Civil Action No. 20-2149 (JEB)

XAVIER BECERRA, Secretary, U.S.
Department of Health and Human
Services,
Defendant.
MEMORANDUM OPINION
Three months ago, this Court granted Defendant Department of Health and Human
Services’ request to remand this Medicare-reimbursement case to the agency. Plaintiffs —
Empire Health Foundation and two hospitals it owns, Valley Hospital Medical Center and
Deaconess Medical Center — now ask the Court to clarify or reconsider that decision. They
question why the Court dismissed the case as moot, particularly their unreasonable-delay claim.
Although some of Plaintiffs’ confusion is perplexing, the Court agrees that it must address the
merits of the delay issue. To so do, it will require additional briefing.
I.

Background
Plaintiffs return once more to this Court in pursuit of reimbursement for services they

provided to Medicare patients. This time, they ask the Court to reconsider its February 2022
Opinion granting Defendant’s motion to remand this case to the Secretary of HHS. Because the
Court has recently recounted Plaintiffs’ reimbursement journey, it will provide here only a very

1

brief overview of the history relevant to the present Motion. See Empire Health Foundation v.
Becerra, 2022 WL 370559, at *1 (D.D.C. Feb. 8, 2022).
In short, Plaintiffs disagree with the methodology the Centers for Medicare and Medicaid
Services (CMS) used to calculate the reimbursement amounts they were owed for their treatment
of low-income patients. Id. Making use of both the agency’s and the judicial system’s
procedures, Plaintiffs have appealed different iterations of these proposed reimbursements for
over a decade. Id. Their latest round saw them alleging four counts before this Court, including
one accusing the Provider Reimbursement Review Board (PRRB) of unreasonably delaying the
resolution of Plaintiffs’ appeals. Id. at *3 (citing ECF No. 16-1 (Amended Complaint), ¶¶ 37–
54). At the conclusion of summary-judgment briefing, the Secretary separately moved for a
voluntary remand, and this Court acquiesced, remanding all claims to the agency on the basis
that they all amounted to “an attempt to expedite a recalculation of their [proposed
reimbursements]” that would omit a certain metric from the calculation formula. Id. at *4.
Plaintiffs now ask this Court to alter or clarify that remand Opinion. See ECF No. 41
(Pls. Mot. for Reconsideration).
II.

Legal Standard
The parties dispute which of several Federal Rules of Civil Procedure should govern

review of this Motion — namely, Rules 54(b), 59(e), 60(a), 60(b)(1), or 60(b)(6). See Pl. MTR
at 2–5; ECF No. 42 (Def. Opp.) at 3–5. Although — or perhaps because — the Court believes
the governing rule does not alter its analysis in this case, it will pick the Rule 60(b)(6) door.
“Rule 60(b)(6) is a catch-all provision, providing that a court may relieve a party from a final
judgment for ‘any other reason that justifies relief’ not encompassed by the other reasons
enumerated in Rule 60(b).” Jordan v. U.S. Department of Labor, 331 F.R.D. 444, 453 (D.D.C.

2

2019). Courts are “vested with a large measure of discretion in deciding whether to grant a Rule
60(b)(6) motion.” Computer Professionals for Social Responsibility v. U.S. Secret Service, 72
F.3d 897, 903 (D.C. Cir. 1996) (quoting Twelve John Does v. District of Columbia, 814 F.2d
1133, 1138 (D.C. Cir. 1988)).
III.

Analysis
Plaintiffs take issue with three aspects of the Court’s February Opinion. First, they argue

that the Court was unclear as to whether it was remanding the entirety of their claims or
dismissing the case for mootness. See Pl. MTR at 5–6. Second, they contend that, if the Court
did remand their unreasonable-delay claim, that was erroneous because the claim was not moot
and such causes of action may not be remanded to agencies. Id. at 6–11. Last, they object to the
Court’s suggestion that Defendant did not seek dismissal of this lawsuit. Id. at 11–12. The
Court begins by clarifying the conclusions of its previous Opinion before addressing Plaintiffs’
argument regarding the unreasonable-delay count.
First, let us set the record straight. Despite Plaintiffs’ apparent confusion, the Court’s
previous Opinion reached a simple outcome: a remand of all Plaintiffs’ claims to the Secretary of
HHS. See Empire Health, 2022 WL 370559, at *5–6. That decision followed from the Court’s
conclusions that the agency did not seek a remand in bad faith and that Plaintiffs’ challenges all
boil down to an attempt to expedite a recalculation of their reimbursement amounts using what
they view as the correct formula. Id. at *4–5. Baked into the former conclusion was the Court’s
determination that Defendant had not requested remand as “pretext for dismissing this case.” Id.
at *5. Nothing Plaintiffs proffer now alters that. Although they highlight the fact that
Defendant’s proposed remand order included language providing that “this matter shall be
dismissed,” Defendant did not argue for dismissal in its briefing. See ECF No. 29-1 (Def.

3

Proposed Remand Order); ECF No. 29 (Mot. to Remand). In any event, the relevant question
was whether the Secretary sought remand as a pretext for dismissal as prohibited by Limnia, Inc.
v. U.S. Department of Energy, 857 F.3d 379, 386–88 (D.C. Cir. 2017), and there continues to be
no basis for believing that he did. The Court, furthermore, did not take up Defendant’s supposed
invitation to dismiss the case, and so whether or not HHS requested dismissal is of no
consequence.
One final point on the Court’s previous Opinion that Plaintiffs appear to misconstrue: it
did not find that any of their claims were moot. See Empire Health, 2022 WL 370559, at *4–6;
cf. Pl. MTR at 5–9; ECF No. 43 (Pl. Reply) at 1–6 (suggesting that Court found Plaintiffs’
claims moot). The only mootness finding applied to the parties’ dispositive motions, which the
Court found were rendered moot by the remand. See ECF No. 39 (Order Granting MTR). Of
course, holding that a motion is moot in no way equates to dismissing a case as moot.
Plaintiffs find firmer ground in their next request. As discussed above, the Court
included their unreasonable-delay count in those it remanded to HHS, based on its finding that
such count was merely one of Plaintiffs’ procedural tactics aimed at securing a recalculation of
their reimbursement amount. See Empire Health, 2022 WL 370559, at *4–5. It now recognizes,
however, that there are some conceptual difficulties with remanding an unreasonable-delay claim
to an agency since the purpose of such a claim is to allow a plaintiff to ask a third party
— namely, a court — to evaluate whether an agency’s timetable is reasonable. The Court will,
accordingly, proceed to consider the parties’ merits arguments on this count, drawing from their
previously filed dispositive motions, which are revived for this limited purpose only. See ECF
Nos. 19 (Pl. Mot. for Summary Judgment) and 21-1 (Def. MTD, Partial Motion for Judgment on
the Pleadings, and Cross-MSJ).

4

Plaintiffs submit that they are entitled to summary judgment on the unreasonable-delay
count because their appeals have languished at HHS with no justification for over a decade, and
they have been denied the opportunity for a hearing on the merits for just as long. See Pl. MSJ at
16–21. Defendant presses several arguments in response, including moving for judgment on the
pleadings on the ground that Plaintiffs have failed to allege facts that can support an
unreasonable-delay claim. See Def. MTD at 31–32. Specifically, the Secretary points out that
Plaintiffs allege only that “[t]he Board has failed to schedule any proceedings with respect to
Plaintiffs’ Part C claims for the years at issue in this case.” Id. (quoting Am. Compl., ¶ 41.). It
is true, as the summary this Court provided in its last Opinion makes clear, that such an
allegation is plainly incorrect. See Empire Health, 2022 WL 370559, at *2–3; see also ECF No.
28 (Def. Reply) at 13–17. In brief: the agency has moved Plaintiffs’ challenges through the steps
of its internal appeals process several times over the past decade. Empire Health, 2022 WL
370559, at *2–3. That is a far cry from “fail[ing] to schedule any proceedings,” and,
accordingly, the Court need not accept Plaintiffs’ contention otherwise as true. See Am. Compl.,
¶ 41; Waters v. District of Columbia, No. 18-2652, 2022 WL 715474, at *8 (D.D.C. Mar. 10,
2022).
The Court does believe, however, that it is appropriate to assess whether the agency’s
lack of action since it regained control over Plaintiffs’ claims following judicial remands in
October 2019 and January 2021 constitutes an unreasonable delay. Plaintiffs contend that the
Court cannot do so at this juncture because Defendant moved for partial judgment on the
pleadings under Rule 12(c) (rather than for summary judgment) on this count; as a result, the
Court may consider only the pleadings, which do not contain sufficient information to apply the
factors set forth in Telecommunications Research and Action Center v. FCC (TRAC), 750 F.2d

5

70 (D.C. Cir. 1984), which govern review of unreasonable-delay claims in this Circuit. See ECF
No. 22 (Pl. Opp.) at 26; Lopez v. National Archives and Records Administration, 301 F. Supp.
3d 78, 84 (D.D.C. 2018) (discussing standard of review for Rule 12(c)); see also Peters v.
National Railroad Passenger Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992) (same). Defendant
rejoins that this Court and others have assessed the TRAC factors at the motion-to-dismiss stage;
since the standards of review for a Rule 12(b)(6) and Rule 12(c) motion are similar, the Secretary
contends that resolution of its motion on this record is equally appropriate. See Def. Reply at 12.
Whether or not it is permissible to address the merits of the delay question now, it would
be more prudent to convert this into a motion for summary judgment that relies on additional
briefing on the application of the TRAC factors to HHS’s movement on Plaintiffs’ appeals since
October 2019 (as opposed to the delay since Plaintiffs filed their initial appeals). Such briefing
may include additional materials (e.g., declarations) if the parties deem such appropriate. The
Court, accordingly, invites both sides to submit supplemental briefing on this question according
to a schedule outlined in the accompanying Order.
IV.

Conclusion
For the foregoing reasons, Plaintiffs’ Motion for Reconsideration will be granted in part

and denied in part. A separate Order so stating shall issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge

Date: May 6, 2022

6