Mereness v. United State Office of Personnel Management

Filing 37

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that plaintiff's motion to alter the judgment (#30) is GRANTED. IT IS FURTHER ORDERED that defendant's motion for relief from judgment pursuant to Rule 60(b)(6) (#33) is DENIED.. Signed by District Judge Stephen N. Limbaugh, Jr on 12/2/16. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

MICHAEL MERENESS,
Plaintiff,
vs.
UNITED STATES OFFICE OF
PERSONNEL MANAGEMENT,
Defendant.

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Case No. 1:15-cv-43 SNLJ

MEMORANDUM and ORDER
On August 17, 2016, this Court granted summary judgment to plaintiff Michael
Mereness on his claim for administrative review of the defendant United State Office of
Personnel Management (“OPM”)’s decision to deny insurance coverage for residential
psychiatric treatment for plaintiff’s son, N.M., after July 15, 2012. Plaintiff moved to
alter the judgment (#30) on September 14, 2016. Defendant moved for relief from
judgment pursuant to Rule 60(b)(6) (#34) on September 23, 2016.
I.

Defendant’s Motion for Relief from Judgment
Under Federal Rule of Civil Procedure 60(b)(6), the Court may relieve a party

from a judgment in case of for “any other reason that justifies relief.” The rule “provides
for extraordinary relief which may be granted only upon an adequate showing of
exceptional circumstances.” Atkinson v. Prudential Property Co., Inc., 43 F.3d 367, 371
(8th Cir. 1994).

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This memorandum presumes familiarity with this Court’s August 17, 2016
memorandum (#28). Defendant suggests that the Court erred by substituting its own
judgment for that of the agency, by faulting OPM for using the Plan’s own definition of
“medically necessary” in determining whether N.M.’s continued treatment at CALO was
covered under the terms of the insurance contract, and by “redefining OPM’s scope of
review.” (#34 at 3.) On the contrary, this Court explicitly addressed whether, in
accordance with Eighth Circuit law, OPM’s denial of plaintiff’s claim constituted “willful
and unreasoning action, without consideration and in disregard of the facts or
circumstances of the case.” Bradley v. Bureau of Alcohol, Tobacco & Firearms, 736
F.2d 1238, 1240 (8th Cir. 1984). The Court concluded, after a “searching and careful”
review of the administrative record, that OPM’s determination that continued residential
treatment was not “medically necessary” was indeed arbitrary and capricious. See
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).
The Court exhaustively detailed how OPM’s denial of coverage was not supported
by the administrative record. OPM’s expert’s statement, which was one paragraph in
length, was entirely inconsistent with the administrative record’s troubling, persistent
references to N.M.’s self-harm and violent outbursts during relevant time periods.
Defendant argues that the expert, Dr. McManus, did address those problems “generally
by opining that ‘the medical record indicates extended periods of behavioral stability with
intermittent behavioral problems which were manageable and did not require seven day a
week/24 hour per day supervision associated with residential treatment.” (#34 at 6-7.)
As the Court explained in its Memorandum, that conclusion stands in stark contrast to

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N.M.’s psychiatrist’s determinations that N.M. posed a risk of harm to himself and/or
others for 22 days in July and September 2012 alone and to the fact N.M.’s violent
episodes were “manageable” only through the use of physical restraints by two people.
The Court is not supplanting its own judgment for OPM’s; rather, the Court’s review of
the record led to the unavoidable conclusion that defendant’s action was without
consideration and in disregard of the facts and circumstances of the case. See Bradley,
736 F.2d at 1240.
Defendant next suggests that the Court substituted its opinion for that of OPM
when the Court noted that “neither McManus nor the defendant ever address the matter of
whether outpatient treatment would constitute ‘treatment’ for this patient at all.” (Id.)
Defendant particularly faults the Court for referring to treatment letters from N.M.’s
treating physicians which predate N.M.’s admission to the residential program.
Defendant invites the Court to remand the case to the agency to determine whether
outpatient treatment “would have constituted treatment for N.M.” The Court declines to
do so. Clearly, inherent in OPM and Dr. McManus’s determination was the conclusion
that N.M. “could have been safely, adequately and effectively treated at a lower level of
care,” as that was in fact the question presented to McManus for review. The Court did
not, as defendant suggests, grant plaintiff’s motion for summary judgment because OPM
had not actually considered “whether outpatient treatment would constitute treatment at
all.” Rather, the Court granted plaintiff’s motion because the determination that
outpatient treatment would be “safe, adequate, and effective” was contrary to the facts in
the administrative record. Defendant now contends that the early treating clinicians did

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not have the benefit of reading treatment summaries from July 2012 stating the
“tremendous progress” N.M. had made; but that very same summary cited by defendant
notes the “minimal” progress made in other areas. Even his “tremendous” progress
toward “attachment goals” was limited to his therapist and parents. Most tellingly, the
treatment summary concludes that N.M. is
continuing to evidence emotional and behavioral patterns which require the
structure and therapeutic opportunity of residential treatment. It is
recommended he continue treatment. This recommendation is evaluated
monthly.
(OMP00199 , #13-2 at 48. (Emphasis added.))
Agency conclusions are entitled to substantial deference in administrative review,
but those conclusions must not be without consideration or in disregard of the facts or
circumstances of the case. See Bradley, 736 F.2d at 1240. Here, the record showed that
N.M. planned to hang himself the night of July 16, 2012 --- the very day N.M. would
have been discharged under the Plan’s determination. Including that date, N.M. had six
incidents of self-harm and suicidal ideations through January 20, 2013. On May 4, 2013,
in particular, N.M. punched a wall so hard that he broke his hand. N.M. further caused
harm to others on 19 occasions from September 16, 2012 through July 27, 2013. N.M.
required “escorts” six times through July 21, 2013, and his behavior appeared to regress
during treatment, as indicated by episodes during which he was unreceptive to coaching
by staff, including on August 8, 2012; and January 19, January 28, May 2, May 15, May
16, June 8, and July 4, 2013.

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Defendant’s conclusion was not only in disregard of those facts, but it appeared to
actively overlook or minimize those and other facts, choosing instead to cherry-pick
relatively positive statements from medical records while ignoring numerous details
indicating N.M.’s unmanageable condition in those same records.
Defendant’s motion fails to show extraordinary circumstances requiring relief
from the judgment, is without merit, and will be denied.
II.

Plaintiff’s Motion to Alter Judgment
Plaintiff seeks to alter the judgment to order the OPM to calculate the benefits at

issue. Plaintiff also asks that the Court order the OPM to “expand the administrative
record” in so doing. Defendant agrees that the judgment should be altered to address this
matter. However, defendant notes that it has already asked plaintiff to submit
documentation supporting plaintiff’s claim, i.e., bills, invoices, and statements, through
the administrative claims process so that OPM can determine the amount of benefits that
the Plan should pay. The Court will alter the judgment in accordance with 5 U.S.C. §
706(1)-(2) and 5 C.F.R. § 890.107(c).

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Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to alter the judgment (#30) is
GRANTED.
IT IS FURTHER ORDERED that defendant’s motion for relief from judgment
pursuant to Rule 60(b)(6) (#33) is DENIED.
Dated this

2nd

day of December, 2016.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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