New Hampshire Hospital Association et al v. US Department of Health and Human Services, Secretary et al
Filing
97
ORDER granting 93 Motion for Attorney Fees. So Ordered by Chief Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
New Hampshire Hospital
Association et al.
v.
Civil No. 15-cv-460-LM
Opinion No. 2020 DNH 010
Alex M. Azar,1 Secretary,
U.S. Department of Health
and Human Services et al.
O R D E R
In November 2015, several New Hampshire hospitals2 and the
New Hampshire Hospital Association (“NHHA”), a non-profit trade
association, brought this suit against the Secretary of Health
and Human Services, the Centers for Medicare and Medicaid
Services (“CMS”), and the Administrator of CMS.
Plaintiffs
alleged that defendants set forth certain “policy
clarifications” regarding the method of calculating supplemental
Medicaid payments to various hospitals.
They alleged these
policy clarifications were issued in responses to frequently
asked questions posted on medicaid.gov, and that both the
Alex M. Azar became Secretary of the U.S. Department of
Health and Human Services on January 29, 2018, replacing Thomas
Price. See Fed. R. Civ. P. 25(d).
1
Plaintiff hospitals are Mary Hitchcock Memorial Hospital,
LRGHealthcare, Speare Memorial Hospital, and Valley Regional
Hospital, Inc.
2
policies themselves and the manner in which they were
promulgated contradicted the plain language of the Medicaid Act
and violated the Administrative Procedure Act (“APA”).
On March 2, 2017, the court granted in part plaintiffs’
motion for summary judgment, holding that defendants’
enforcement of the policy clarifications set forth in the
responses to the frequently asked questions violated the APA.
N.H. Hosp. Ass’n v. Burwell, No. 15-cv-460-LM, 2017 WL 822094,
at *8-14 (D.N.H. Mar. 2, 2017) (“March 2 Order”).
The court
permanently enjoined defendants from enforcing the policies in
the responses to the frequently asked questions.
n.16.
Id. at *12
Defendants appealed the March 2 Order, and the First
Circuit Court of Appeals affirmed.3
N.H. Hosp. Ass’n v. Azar,
887 F.3d 62 (1st Cir. 2018).
After the appeal concluded, NHHA moved for an award of
attorneys’ fees, arguing that it is entitled to recover such
fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §
After the court issued the March 2 Order, defendants
published a final rule regarding the calculation of the
supplemental payments. See Medicaid Program: Disproportionate
Share Hospital Payments—Treatment of Third Party Payers in
Calculating Uncompensated Care Costs, 82 Fed. Reg. 16114–02,
16117 (Apr. 3, 2017) (“2017 Rule”). The 2017 Rule expressly
included within its text the policies that had been set forth in
the responses to the frequently asked questions. That rule has
since been vacated. See Children’s Hosp. Ass’n of Texas v.
Azar, 300 F. Supp. 3d 190 (D.D.C. 2018).
3
2
2412.
Defendants objected, arguing that NHHA is not entitled to
attorneys’ fees under the EAJA and, if it is, that those fees
must be substantially reduced.
On March 28, 2019, the court granted NHHA’s motion for
attorneys’ fees and costs to the extent NHHA seeks to recover
fees and costs under the EAJA at the rate provided in that
order.
See doc. no. 83.
Although the court held that NHHA was
entitled to fees and costs under the EAJA, the order stated:
As discussed above, defendants raise certain
legitimate concerns regarding NHHA’s request for fees
and costs. For example, NHHA seeks, but is not
entitled to recover, attorneys’ fees and costs related
to: 1) administrative proceedings; 2) dealing with the
State outside of this litigation; 3) opposing the
State’s efforts in this case; and 4) lawsuits other
than the instant action. In addition, defendants’
complaints that certain entries are vague, overredacted, or show unnecessary fees incurred, are
valid.
Id. at 39.
The court ordered the parties to confer and attempt
to reach an agreement as to the appropriate award of attorneys’
fees and costs in accordance with the parameters of the order.
The court also stated that if the parties were unable to reach
an agreement, NHHA may file an amended motion for attorneys’
fees costs.
The parties did not reach an agreement as to NHHA’s request
for attorneys’ fees and costs.
In accordance with the court’s
order, NHHA has filed an amended motion for attorneys’ fees and
costs.
Doc. no. 93.
Defendants object.
3
DISCUSSION
In its amended motion, NHHA represents that it removed all
entries in its billing records that fell into the four
categories identified by the court as non-compensable under the
EAJA.
It also reduced certain time entries that did not comply
with the court’s order (such as those that were vague or showed
unnecessary fees incurred) and provided unredacted time entries.
The result is a request for attorneys’ fees in the amount of
$302,159.08, which represents a 22% reduction from the amount
requested in its original motion for fees and costs, and a
request for $3,124.06 in costs.
Defendants object to NHHA’s amended motion.
They argue
that the revised fee request includes numerous billing entries
that are improper under the court’s order and not compensable
under the EAJA.
They point to 23 specific entries in NHHA’s
counsel’s billing records that purportedly fall outside of the
EAJA’s purview.4
Defendants further contend that the revised fee request is
not adequately documented and does not distinguish amounts that
are compensable from those that are not.
Specifically,
defendants note that during the relevant time frame, NHHA’s
4
NHHA’s counsel’s billing records include 627 entries.
4
counsel was spending significant time dealing with the State of
New Hampshire and seeking relief from CMS through administrative
processes, which, as the court held, is not compensable under
the EAJA.
Defendants argue that it is impossible from NHHA’s
attorneys’ billing records to separate non-compensable tasks
from compensable time spent on this case.
They therefore
request that the court reduce NHHA’s fee request by 30 to 40
percent to account for these deficiencies.
I.
Specific Entries
Defendants point to 23 entries that they argue include time
spent on matters that are not compensable under the EAJA.
Defendants claim that these entries represent time spent either:
(1) on cases other than the instant action, (2) dealing with
parties other than defendants in this litigation, or (3) actions
relating to CMS but which are not connected to this case.
These
23 entries are:
•
Three entries from November 2017 that, in light of the
timing and description, appear to relate to subsequent
litigation concerning the 2017 Rule;
•
An October 18, 2017, entry for paralegal time for
downloading an amicus brief submitted by a non-party, the
State of New Hampshire;
5
•
An October 25, 2017, entry for paralegal time spent
reviewing and preparing an administrative record, despite
no administrative record being filed in this case;
•
Eleven entries involving communications with Senior
Assistant Attorney General Nancy J. Smith, who represented
the State of New Hampshire, a non-party in this case;
•
A November 6, 2015, entry for work including “public
messaging”;
•
An April 5, 2017, entry for work including “work on
disclosures to rating agencies”;
•
A February 1, 2016, entry for attorney time including “two
conference calls regarding agreement letter with the State
of New Hampshire”;
•
An October 22, 2016, entry for attorney time including
discussion of “providing comments on new CMS proposed
rulemaking”;
•
A March 2, 2017, entry for attorney time including
discussion of “strategy for responding to recent efforts
indicating State may not follow through on DSH payment
obligations”;
•
An October 25, 2017, entry for attorney time including
“Review administrative record produced by DOJ,” despite no
administrative record being produced in this case; and
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•
A December 5, 2017, entry for attorney time reviewing an
amicus brief.
In addition, defendants seek a reduction of $1092.24 in NHHA’s
request for costs, arguing that this amount represents time
spent copying and delivering the June 2015 petition to CMS,
which is not time spent in connection with this lawsuit.
In its objection, NHHA does not address the majority of the
entries defendants identify.
It argues, however, that the
October 17 and December 5, 2017 entries for time spent
downloading and reviewing an amicus brief filed in support of
defendants’ position on appeal should be compensable under the
EAJA because it was necessary to review those briefs in
connection with defendants’ appeal of the judgment in this case.
Neither NHHA nor defendants offer any caselaw in support of
their position regarding whether reviewing an amicus brief is
compensable under the EAJA.
Defendants note, however, that the
court previously held that NHHA was not entitled to compensation
under the EAJA for work done in opposing the State’s efforts to
intervene and file an amicus brief in this case.
83 at 29-31.
See doc. no.
Work performed in opposition to a non-party’s
efforts to participate in a case, however, is not the same as
time spent reviewing filings in the record.
The EAJA seeks to
compensate plaintiffs for attorneys’ fees “incurred in opposing
government resistance” in a litigation.
7
Love v. Reilly, 924
F.2d 1492, 1496 (9th Cir. 1991).
Time spent reviewing the
State’s amicus brief, which raised arguments in support of
defendants’ position and which NHHA needed to address in the
context of its appeal, falls within that category.
The fact
that the filing was an amicus curiae brief does not
automatically remove it from the EAJA’s purview.
See, e.g.,
Nadarajah v. Holder, 569 F.3d 906, 922 (9th Cir. 2009) (holding
that time spent consulting with amicus curiae was compensable
under the EAJA).
Therefore, the entries regarding time spent downloading and
reviewing the State’s amicus brief are compensable under the
EAJA.
Defendants’ remaining challenges to specific time entries
and costs are persuasive, and those amounts are deducted from
NHHA’s request for costs and fees.5
II.
Additional Challenges
Defendants also contend that NHHA’s request for fees should
be reduced by 30 to 40 percent to account for the fact that many
entries do not distinguish amounts that are compensable from
The court notes that many of the excluded entries include
certain tasks that appear to be compensable. Because NHHA does
not raise that issue, and because the EAJA must be strictly
construed in favor of the government, see Ardestani v. I.N.S.,
502 U.S. 129, 137 (1991), the court excludes these entries in
their entirety.
5
8
those that are not.6
They note that during the litigation,
NHHA’s attorneys spent significant resources on other matters
related to Medicaid Disproportionate Share Hospital payments on
behalf of the plaintiff hospitals, many of which are not
associated with opposing defendants’ efforts in this case.
Defendants argue that several entries lump various distinct
activities together, such that it is impossible to discern
whether those actions were done in connection with this case.
Therefore, defendants request an overall 30 to 40 percent
reduction.
Although NHHA’s attorneys were acting on its behalf in
opposing CMS’s efforts outside of this litigation during the
relevant time period, none of the remaining entries appears to
include time spent on those efforts.
NHHA submitted in support
of its application the declaration of one of its attorneys, W.
Scott O’Connell, which states that the remaining entries relate
entirely to time spent opposing defendants’ efforts in this
case.
There is nothing in the billing entries—other than the
specific entries discussed above—to suggest otherwise.
Defendants arrive at the 30 to 40 percent figure by
comparing this case to other cases in which courts have reduced
fee requests under the EAJA by a percentage. Defendants note
that the 30 to 40 percent request is lower than the more
significant reductions in the cases they cite, which they assert
accounts for NHHA’s prior efforts to remove inappropriate
billing entries.
6
9
Therefore, the court will not reduce NHHA’s request by an
overall percentage.
III. Summary
NHHA is entitled to $296,332.88 in attorneys’ fees, which
represents the amount of attorneys’ fees it seeks to the extent
those entries are supported by its attorneys’ billing records,
less the amount included in the entries defendants identify that
are not compensable under the EAJA.
NHHA is also entitled to
$2,031.82 in costs, which is the amount it seeks less the costs
incurred in copying and delivering the June 2015 petition.
CONCLUSION
For the foregoing reasons, NHHA’s amended motion for
attorneys’ fees and costs (doc. no. 93) is granted as provided
in this order.
SO ORDERED.
__________________________
Landya B. McCafferty
United States District Judge
January 22, 2020
cc: Counsel of Record.
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