Case 1:14-cv-00263-RDM Document 164 Filed 02/08/21 Page 1 of 34
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Plaintiffs,
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`v.
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`SHANDS JACKSONVILLE MEDICAL
`CENTER, INC., et al.,
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`NORRIS COCHRAN,1
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`
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`Case No. 14-263 (RDM) (cons.)
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`Defendant.
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`MEMORANDUM OPINION AND ORDER
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`This is the final chapter in a long-running series of cases originally brought by more than
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`a thousand hospitals. In the Court’s most recent opinion, the Court concluded that some, but not
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`all, of the hospitals were entitled to an award of interest as “prevailing part[ies]” pursuant to 42
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`U.S.C. § 1395oo(f)(2). A subset of hospitals that were not entitled to interest under
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`§ 1395oo(f)(2) for some of the claims at issue (the “Hooper and Akin Plaintiffs”) pressed an
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`alternative theory, asking that the Court direct the Secretary of Health and Human Services
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`(“Secretary”) to award them interest under 42 U.S.C. § 1395g(d). Unlike the “prevailing party”
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`provision, which applies to those who are successful in litigating claims against the Secretary,
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`§ 1395g(d) applies at the agency level and requires the Secretary to pay or to recover interest
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`when an administrative “determination is made that the amount of payment . . . to [the] provider
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`. . . was in excess of or less than the amount of payment that [was] due” and the “excess or
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`deficit” is not paid or recovered within 30 days of the determination. 42 U.S.C. § 1395g(d). The
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`1 Although this lawsuit previously named Alex M. Azar II, Norris Cochran is now Acting
`Secretary of Health and Human Services.
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`Case 1:14-cv-00263-RDM Document 164 Filed 02/08/21 Page 2 of 34
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`Court rejected the Hooper and Akin Plaintiffs’ § 1395g(d) challenge on the grounds that the
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`hospitals never presented that claim to the Secretary and, indeed, never raised the issue before
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`any decisionmaker at the administrative level. There was, in short, no decision, action, or refusal
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`to act for the Court to review.
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`In a footnote, the Hooper and Akin Plaintiffs asked as a last resort that the Court remand
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`their FY 2016 appeals to the Provider Reimbursement Review Board (“PRRB”) for a ruling on
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`the availability of interest under § 1395g(d). The Court denied that request, also in a footnote,
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`but because the issue was not briefed in any detail, the Court granted the hospitals leave to renew
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`their request for “good cause” after conferring with counsel for the Secretary. Although the
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`Court intended to provide the Hooper and Akin Plaintiffs with only a limited opportunity to
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`explore a narrow issue, the Court’s footnote ultimately precipitated multiple rounds of additional
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`briefing, oral argument, and an evolving cascade of arguments. Suffice it to say, the hospitals
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`have focused less on whether a remand is appropriate and, instead, have (in substance if not in
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`name) sought reconsideration of the Court’s conclusion that their § 1395g(d) challenge failed for
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`lack of presentment.
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`Treating the hospitals’ multiple submissions and arguments as a motion for
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`reconsideration, the Court will deny that motion on the ground that the hospitals could have, but
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`did not, raise the § 1395g(d) issue with the Secretary in a timely manner. That was the basis of
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`the Court’s prior decision, and, with minor refinement to the relevant analysis, the Court remains
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`persuaded that it lacks jurisdiction to consider the Hooper and Akin Plaintiffs’ § 1395g(d) claim.
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`The Court will also deny their request that the Court remand the matter to the PRRB for further
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`proceedings because (1) the Court lacks jurisdiction to do so and (2) in any event, the hospitals
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`2
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`Case 1:14-cv-00263-RDM Document 164 Filed 02/08/21 Page 3 of 34
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`have failed to demonstrate good cause for not raising the § 1395g(d) issue with the Secretary in
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`the first instance.
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`I. BACKGROUND
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`The litigation began when over a thousand hospitals brought an array of lawsuits
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`challenging a regulation promulgated by the Secretary of Health and Human Services
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`(“Secretary”) that imposed a 0.2 percent, across-the-board reduction in the Inpatient Prospective
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`Payment System (“IPPS”) rates used to compensate hospitals under the Medicare program. In
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`2015, the Court concluded that the Secretary failed to provide sufficient notice of the actuarial
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`assumptions and methodology that she employed in calculating the 0.2 percent reduction and
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`that, without this information, the hospitals were denied a meaningful opportunity to comment
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`on the rule. See Shands Jacksonville Med. Ctr. v. Burwell, 139 F. Supp. 3d 240, 261–65 (D.D.C.
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`2015) (“Shands I”). To remedy this procedural omission, the Court remanded the matter to the
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`Secretary for further administrative proceedings, but applying the factors set forth in Allied-
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`Signal, Inc. v. U.S. Nuclear Regul. Comm’n, 988 F.2d 146 (D.C. Cir. 1993), the Court declined
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`to vacate the rule. Shands I, 139 F. Supp. 3d at 267–71.
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`On remand, the Secretary published a notice describing the assumptions that the actuaries
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`had used and, as contemplated by the Court’s decision, invited further public comment. See
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`Medicare Program; Inpatient Prospective Payment Systems; 0.2 Percent Reduction, 80 Fed. Reg.
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`75,107 (Dec. 1, 2015). After receiving comments and considering the matter further, however,
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`the Secretary lost confidence in the basis for the 0.2 percent rate reduction and, as a result, issued
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`a proposed rule that would remove the 0.2 percent adjustment for FY 2017 and thereafter and
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`that would address the effects of the 0.2 percent rate reductions for FYs 2014, 2015, and 2016 by
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`adopting a one-time 0.6 percent rate increase for FY 2017. See Medicare Program; Hospital
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`3
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`Inpatient Prospective Payment Systems for Acute Care Hospitals and the Long-Term Care
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`Hospital Prospective Payment System and Proposed Policy Changes and Fiscal Year 2017 Rates,
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`81 Fed. Reg. 24,946, 25,137–38 (Apr. 27, 2016) (“2017 Proposed Rule”). Consistent with this
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`proposal, in the final rule setting the FY 2017 rates, the Secretary abandoned the 0.2 percent rate
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`reduction going forward and adopted the proposed one-time 0.6 percent rate increase for FY
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`2017. See Medicare Program; Hospital Inpatient Prospective Payment Systems for Acute Care
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`Hospitals and the Long-Term Care Hospital Prospective Payment System and Policy Changes
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`and Fiscal Year 2017 Rates, 81 Fed. Reg. 56,762 (Aug. 22, 2016) (“2017 Final Rule”).
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`Some of the comments submitted in response to the 2017 Proposed Rule raised concerns
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`about the time value of money and argued that some or all of the hospitals should receive interest
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`to make up for this asserted loss. Id. at 57,060. These commenters asked that the Secretary
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`“refine the 1.006 percent adjustment [for FY 2017] to account for” the time value of money or
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`that the Secretary “otherwise address the issue.” Id. In response, the Secretary announced:
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`We will not contest that hospitals that are party to the Shands Jacksonville
`Medical Center, Inc. v. Burwell, No. 14-263 (D.D.C.) and other currently
`pending cases that challenge the -0.2 percent adjustment should receive interest
`under section 1878(f)(2) of the Act [42 U.S.C. § 1395oo(f)(2)]. For these
`hospitals, we will slightly increase the 1.006 factor by a uniform factor
`consistent with the interest rates used for this purpose in effect for the relevant
`time periods for paying interest. We disagree with commenters who indicated
`that we should pay all hospitals interest or for the time value of money.
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`Id. In short, after considering the comments, the Secretary decided not to contest the award of
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`interest under 42 U.S.C. § 1395oo(f)(2) for those hospitals that were parties to the Shands case
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`itself or to any of the “other currently pending cases.” Id. (emphasis added). The Secretary,
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`however, otherwise declined to compensate hospitals for the time value of money. Id.
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`Many of the hospitals then returned to this Court to challenge the adequacy of the
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`Secretary’s actions on remand. One group of hospitals argued that the Secretary should have
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`4
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`repealed or amended the rule that initially adopted the 0.2 percent rate reduction, which would
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`have resulted in the recalculation of amounts each hospital was entitled to receive for FYs 2014,
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`2015, and 2016. Shands Jacksonville Med. Ctr., Inc. v. Azar, 366 F. Supp. 3d 32, 51 (D.D.C.
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`2018) (“Shands II”). And a second group of hospitals argued that the Secretary took a step in the
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`right direction in the 2017 Final Rule but did not go far enough. In their view, the Secretary
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`should have adopted an across-the-board rate increase (above and beyond the 0.6 percent make-
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`up payment) to compensate hospitals for losses that they allegedly sustained due to the
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`Secretary’s decision to alter the manner in which the Medicare program distinguishes between
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`in-patient and out-patient services. Id. at 57–58. This Court rejected those challenges, see id. at
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`66, and the D.C. Circuit affirmed that decision, see Shands Jacksonville Med. Ctr., Inc. v. Azar,
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`959 F.3d 1113 (D.C. Cir. 2020).
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`The Court’s third opinion took up the question of interest. Three different groups of
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`hospitals sought the award of interest to make them whole for the delay in payments resulting
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`from the 0.2 percent reduction in their IPPS rates for FYs 2014, 2015, and 2016, which they did
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`not recoup until they received the 0.6 percent rate increase in FY 2017. Shands Jacksonville
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`Med. Ctr., Inc. v. Azar, No. 14-cv-263, 2019 WL 1228061 (D.D.C. Mar. 15, 2019) (“Shands
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`III”). All three groups of hospitals argued that they were “prevailing parties” within the meaning
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`of 42 U.S.C. § 1395oo(f)(2) and, as a result, were entitled to interest for each of the three fiscal
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`years at issue. Id. at *1. The Court agreed that those hospitals that had filed suit before the
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`Secretary adopted the 0.6 percent rate increase in the 2017 Final Rule were entitled to prevailing-
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`party interest but that those hospitals that did not bring suit until after the Secretary had already
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`provided them with the relief that they sought were not entitled to prevailing-party interest. Id. at
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`*6–14. On appeal, the D.C. Circuit agreed that “the [h]ospitals [were] entitled to interest for
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`5
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`each fiscal year that they challenged the rate reduction in court by August 2, 2016, when the
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`Secretary promulgated the FY 2017 rate increase” and that those hospitals that had not brought
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`suit by August 2, 2016 had no claim to interest under § 1395oo(f)(2). Shands Jacksonville Med.
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`Ctr., Inc., 959 F.3d at 1121.
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`The third group of hospitals, represented by Hooper, Lundy & Bookman, P.C. and Akin
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`Gump Strauss Hauer & Feld LLP and which the Court has referred to as the “Hooper and Akin
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`Plaintiffs,”2 pressed an alternative argument not raised by the other hospitals. They argued that,
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`to the extent they were not entitled to an award of prevailing-party interest under § 1395oo(f)(2),
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`the Secretary should have paid them interest pursuant to § 1395g(d). Shands III, 2019 WL
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`1228061, at *1. In relevant part, that provision provides:
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`Whenever a final determination is made that the amount of payment made under
`this part to a provider of services was in excess of or less than the amount of
`payment that is due, and payment of such excess or deficit is not made (or
`effected by offset) within 30 days of the date of the determination, interest shall
`accrue on the balance of such excess or deficit not paid or offset . . . at a rate
`determined in accordance with the regulations of the Secretary of the Treasury
`applicable to charges for late payments.
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`42 U.S.C. § 1395g(d). As the Court observed, § 1395g(d) differs from § 1395oo(f)(2) in an
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`important respect: Ҥ 1395g(d) imposes a duty on the Secretary to pay interest, while
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`§ 1395oo(f)(2) authorizes the federal courts to award interest.” Shands III, 2019 WL 1228061, at
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`*15. That difference was significant because the Hooper and Akin Plaintiffs never asked the
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`2 Hospitals represented by Akin Gump Strauss Hauer & Feld LLP include all plaintiffs in the
`following cases: Shands Jacksonville Med. Ctr., Inc. v. Sebelius, Civ. No. 14-263; Dignity
`Health v. Sebelius, Civ. No. 14-536; Shands Jacksonville Med. Ctr., Inc. v. Burwell, Civ. No. 15-
`1150; and Shands Jacksonville Med. Ctr., Inc. v. Burwell, Civ. No. 16-2484. Hospitals
`represented by Hooper, Lundy & Bookman, P.C. include all plaintiffs in the following cases: St.
`Helena Hosp. v. Burwell, Civ. No. 14-1477; Long Beach Mem’l Med. Ctr. v. Burwell, Civ. No.
`15-1601; St. Helena Hosp. v. Burwell, Civ. No. 16-30; and St. Helena Hosp. v. Burwell, Civ. No.
`17-39. See Dkt. 69 at 1 n.1.
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`Secretary to award interest under § 1395g(d) and thus there was no adverse administrative
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`decision or action for the Court to review.
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`The Hooper and Akin Plaintiffs did not dispute “that, in general, a provider must exhaust
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`administrative remedies before bringing suit,” but they maintained that exhaustion was not
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`required in this context because (1) application of the Medicare Act’s channeling provisions
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`would preclude review entirely of the Secretary’s failure to pay interest and (2) the channeling
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`provisions do not apply to actions brought under the Mandamus Act, 28 U.S.C. § 1361. Id. The
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`Court was unpersuaded. As the Court explained, “neither exception relieves a provider of the
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`obligation to make all reasonable efforts to exhaust its administrative remedies before filing
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`suit.” Id. “The first exception, by definition, applies only if application of the channeling rule
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`would preclude judicial review, and the second exception, which relies on the extraordinary
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`relief available in mandamus, requires the plaintiff to ‘exhaust administrative remedies’ before
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`brining suit.” Id. (quoting Monmouth Med. Ctr. v. Thompson, 257 F.3d 807, 813–14 (D.C. Cir.
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`2001)). Because the Hooper and Akin Plaintiffs had “failed to carry their burden of showing that
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`they were unable to request interest under § 1395g(d) at any point in the administrative process,”
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`the Court concluded that it was without jurisdiction to consider their previously unasserted claim
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`to interest under § 1395g(d). Id.
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`The Court’s analysis started with the text of § 1395oo(a)(1)(A), which grants the PRRB
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`jurisdiction if the provider is “dissatisfied with a final determination” made by “the Secretary as
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`to the amount of the payment [due] under [the IPPS statute].” 42 U.S.C. § 1395oo(a)(1)(A);
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`Shands III, 2019 WL 1228061, at *15. According to the Hooper and Akin Plaintiffs, they could
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`not have relied on that avenue of review because the 2017 Final Rule constituted the final
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`determination that they had been underpaid for FYs 2014, 2105, and 2016, Dkt. 69-1 at 16–17,
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`and they were “not dissatisfied with the Secretary’s determination to increase the rates paid
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`under the IPPS statute . . . in the FFY 2017 IPPS Final Rule, or the determination in that Rule to
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`pay interest under [§] 1395oo.” Dkt. 114 at 4. Instead, they argued that their dissatisfaction
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`arose exclusively from “the Secretary’s post-hoc determination in this litigation not to pay [§]
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`1395oo interest for years filed in court after the underpayment determination.” Id. This Court
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`rejected that rationale for several reasons.
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`First, as the Court explained, Ҥ 1395g(d) is not available as a judicial remedy for the
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`Secretary’s refusal to pay interest under § 1395oo(f)(2); rather, it is part of the complex web of
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`provisions that define the amounts the Secretary is required to pay providers for their services.”
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`Shands III, 2019 WL 1228061, at *16. Second, there was “nothing [post-hoc] about the
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`Secretary’s agreement to pay interest under § 1395oo(f)(2) only with respect to those fiscal years
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`for which the provider at issue had an action pending in Court on August 2, 2016.” Id. To the
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`contrary, commenters raised the question of interest in response to the 2017 Proposed Rule, and
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`“[t]he Secretary clearly announced that position in the FY 2017 Rule, asserting: ‘We will not
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`contest that hospitals that are party to the Shands Jacksonville Med. Ctr., Inc. v. Burwell, No. 14-
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`263 (D.D.C.) and other currently pending cases that challenge the -0.2 percent adjustment should
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`receive interest under [§ 1395oo(f)(2) ].’” Id. (alteration in original) (quoting 81 Fed. Reg. at
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`57,060 (emphasis added)). The Hooper and Akin Plaintiffs, however, never—in any way—
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`disputed that decision at the administrative level. Id. Moreover, the Court observed that
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`“Plaintiffs’ own argument undercut[] their position that their dissatisfaction stem[med] from ‘the
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`Secretary's post-hoc determination in this litigation.’” Id. In particular, they argued “that they
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`could not have sought interest pursuant to § 1395g(d) ‘in the course of [their] PRRB appeals’
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`challenging the FY 2014, 2015, and 2016 Rules because the ‘underpayment determination by the
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`Secretary that serves as the foundation for’ their claim to interest ‘was not even made until the
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`[FY 2017 Rule] was issued in August 2016.’” Id. (quoting Dkt. 114 at 5 (emphasis added)). But
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`that framing of the issue seemed “to concede that it was the Secretary’s determination in the FY
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`2017 Rule, and not any ‘post-hoc’ determination, that form[ed] the source of Plaintiffs’ claim,
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`and the Hooper and Akin Plaintiffs [did] not address whether they [would] be able to seek
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`interest under § 1395g(d) in PRRB proceedings relating to the FY 2017 Rule.”3 Id.
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`The Hooper and Akin Plaintiffs further argued that “[t]he Medicare statute provides no
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`administrative mechanism for an interest claim to be pursued apart from an underlying claim
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`over which the [PRRB] has jurisdiction.” Dkt. 114 at 5. The Court, however, was once again
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`unpersuaded that this entitled Plaintiffs to bring suit without satisfying the presentment
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`requirement. As the Court observed, Plaintiffs failed to explain “why a claim that the Secretary
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`should have included an interest component in her calculation of an underpayment [was] not a
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`claim of ‘dissatisf[action] with a final determination . . . as to the amount of total program
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`reimbursement due the provider for the items and services provided.’” Shands III, 2019 WL
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`1228061, at *16. To be sure, the Court recognized that the Hooper and Akin Plaintiffs might
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`have faced some conceivable difficulties had they attempted to raise a claim for interest. “But,
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`absent any effort to raise the issue with respect to any fiscal year, the hurdles that the Hooper and
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`Akin Plaintiffs invoke” were, in the Court’s view, “simply conjectural.” Id.
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`3 Apart from these difficulties with the Hooper and Akin Plaintiffs’ argument, the Court went on
`to observe that Plaintiffs did not seek Expedited Judicial Review (“EJR”) from the PRRB with
`respect to FY 2016 until after the Secretary promulgated the 2017 Final Rule, suggesting that
`they could have timely included their claim to interest in that request. Shands III, 2019 WL
`1228061, at *16. Plaintiffs have now explained that they were required to file their appeals to
`the PRRB before the Secretary promulgated the 2017 Final Rule and that they were not
`permitted to raise any claims in their request for EJR that were not included in their appeals.
`Dkt. 152 at 7. For present purposes, the Court accepts this representation and no longer relies on
`this alternative basis for its decision.
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`The Hooper and Akin Plaintiffs included a final footnote in their brief, which has
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`precipitated all that has happened in this case since then. That footnote asserted:
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`If the Court concludes that the Hospitals are not entitled to interest under section
`1395oo(f) for FFY 2016 and that the Secretary correctly asserted that the PRRB
`has “jurisdiction over any claim for interest under § 1395g(d)” (Def.’s Mem. at
`3 (ECF No. 113, Feb. 15, 2019)), then the Court should remand the Hospitals’
`FFY 2016 appeals to the PRRB for a ruling on interest under section 1395g(d)
`for FFY 2016.
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`Dkt. 114 at 11 n.7. The Court was unpersuaded—at least based on this bare assertion—that
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`remand was appropriate. But because neither party had briefed the propriety of a remand to the
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`PRRB for further consideration, the Court denied Plaintiffs’ request “without prejudice to [their]
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`renewing it for good cause after conferring with counsel for the Secretary.” Shands III, 2019
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`WL 1228061, *17 n.8.
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`After issuing its decision in Shands III, the Court entered a minute order explaining that
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`“it is the Court’s understanding that there are no remaining issues to be resolved in these
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`consolidated matters.” Minute Order (Mar. 18, 2019). It added, however, that “[i]f any party
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`would like to raise additional issues with the Court, that party shall file a status report outlining
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`the remaining issues to be resolved.” Id. On March 25, 2019, the Hooper and Akin Plaintiffs
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`filed a status report explaining that they sought “briefing on the issue of a remand of FFY 2016
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`appeals to the PRRB for a ruling on interest under [§] 1395g(d).” Dkt. 116 at 2. The Court held
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`a scheduling conference on April 23, 2019 and set a schedule for briefing on the issue. Minute
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`Entry (Apr. 23, 2019). On May 13, 2019, the Secretary filed a memorandum addressing
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`Plaintiffs’ claim for interest. Dkt. 135. Plaintiffs filed a response on June 7, 2019, Dkt. 139, and
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`Defendant replied on June 21, 2019, Dkt. 142.
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`The Court heard extended oral argument on November 14, 2019. At argument, counsel
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`for the Hooper and Akin Plaintiffs repeated arguments the Court had previously rejected, raised a
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`number of arguments not mentioned in their briefs, and asked that the Court consider a number
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`of administrative and judicial precedents and regulations that they had not previously cited.
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`Among other things, Plaintiffs (1) repeated their contention that they were not “dissatisfied” with
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`the 2017 Final Rule and, thus, were not entitled to seek review of the Secretary’s failure to award
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`interest under § 1395g(d), Dkt. 152 at 10; (2) conceded that they did not raise the § 1395g(d)
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`issue in the administrative process but argued that they nonetheless complied with the
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`presentment requirement by sending an email to litigation counsel (after bringing suit) requesting
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`that the Secretary agree to their demand, id. at 13–14, 30, 35; (3) argued that a PRRB regulation
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`precluded them from raising a second challenge to the FY 2016 IPPS rate determination,
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`effectively precluding them from challenging the Secretary’s failure to award the interest under
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`§ 1395g(d), id. at 19 (citing PRRB Rule 4.6.1); (4) posited that presentment is not required for a
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`claim for interest under § 1395g(d) because such a claim to interest does not arise “under [§]
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`1395oo or any other administrative process,” id. at 21; (5) maintained that they were justifiably
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`confused about whether the 2017 Final Rule awarded prevailing-party interest to all hospitals,
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`rather than just those that had filed suit in this Court by August 2016, and it was for that reason
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`that they did not raise the § 1395g(d) issue with the Secretary when they might have, id. at 22;
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`(6) argued that under the PRRB’s decision in Univ. of Pittsburgh Med. Ctr. v. Highmark
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`Medicare Servs., PRRB Dec. 2014-D26 (Sept. 23, 2014) (“Pittsburgh Medical”), the PRRB
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`lacks jurisdiction to consider § 1395g(d) claims to interest, thus depriving providers of a means
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`for seeking administrative relief along the road to seeking judicial review, Dkt. 152 at 51; (7)
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`conceded that the hospitals could have filed a petition with the Secretary seeking to reopen the
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`rulemaking to award them interest but argued that this mechanism did not support application of
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`the presentment requirement because the Secretary’s denial of such a request is not subject to
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`judicial review, id. at 72–73; and (8) invoked the D.C. Circuit’s decision in In re Medicare
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`Reimbursement Litigation, 414 F.3d 7 (D.C. Cir. 2005), for the proposition that hospitals are
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`entitled to seek mandamus relief without exhausting administrative processes when they seek
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`relief under a “self-effectuating” statutory provision, like § 1395g(d), Dkt. 152 at 48, 85–87.
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`At the conclusion of oral argument, the Court noted that, after giving Plaintiffs multiple
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`opportunities to make their case, it had “heard about some new case law,” regulations, and PRRB
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`decisions for the first time at oral argument. Id. at 97. The Court further noted that Plaintiffs
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`were, in effect, asking the Court to reconsider its decision in Shands III, and thus they needed to
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`explain why the Court’s decision was incorrect and needed to identify any—and all—authority
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`that, in their view, counsels a different result. Id. at 97–98. To ensure a complete record, the
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`next day the Court ordered the Hooper and Akin Plaintiffs to “file a copy of the[ir] 2016
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`appeal[s] to the [B]oard,” Minute Entry (Nov. 14, 2019), and, shortly after that, ordered that they
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`file copies of “any comments that they submitted to the Secretary during the relevant
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`rulemakings regarding the awarding of interest,” Minute Order (Nov. 18, 2019). None of those
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`comments included any reference to § 1395g(d). Dkt. 155 at 2 (conceding that none of the
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`comments “specifically address[ed] § 1395g(d) interest”).
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`On December 13, 2019 Plaintiffs filed their brief and exhibits, Dkt. 155; the Secretary
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`responded to that filing on January 17, 2020, Dkt. 157; and Plaintiffs replied on February 7,
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`2020, Dkt. 160. Finally, on July 9, 2020, Plaintiffs filed a notice of supplemental authority in
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`support of their claim. Dkt. 162. By any measure, the matter is now ripe for decision.
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`II. ANALYSIS
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`In Shands III, the Court allowed the Hooper and Akin Plaintiffs—for “good cause”—to
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`renew their request that the Court remand the § 1395g(d) question to the PRRB. 2019 WL
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`Case 1:14-cv-00263-RDM Document 164 Filed 02/08/21 Page 13 of 34
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`1228061, at *17 n.8. Rather than address this issue, however, most of Plaintiffs’ briefing and
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`argument since then has taken issue with the Court’s holding that Plaintiffs failed to raise their
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`claim for interest with the Secretary or the PRRB, that they had an opportunity to do so, and that,
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`as a result, the Court was without jurisdiction to consider their claim for § 1395g(d) interest on
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`the merits. That focus is puzzling because Plaintiffs have not actually moved for reconsideration
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`of the Court’s order. It is evident to the Court, however, that they in fact seek reconsideration,
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`and the Court will accordingly treat their numerous submissions and arguments as a motion for
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`reconsideration.
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`Under Federal Rule of Civil Procedure 54(b), district courts may “reconsider an
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`interlocutory order ‘as justice requires.’” Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc.,
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`630 F.3d 217, 227 (D.C. Cir. 2011) (quoting Greene v. Union Mut. Life Ins. Co. of Am., 764 F.2d
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`19, 22–23 (1st Cir. 1985)). Although the D.C. Circuit has yet to establish a controlling standard
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`“governing Rule 54(b) reconsideration,” Cobell v. Norton, 224 F.R.D. 266, 272 (D.C. Cir. 2004),
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`numerous decisions in this district have relied on the following inquiry:
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`Justice may require revision when the Court [1] has patently misunderstood a
`party, [2] has made a decision outside the adversarial issues presented to the
`Court by the parties, [3] has made an error not of reasoning but of apprehension,
`or [4] where a controlling or significant change in the law or facts has occurred
`since the submission of the issue to the Court. Errors of apprehension may
`include a Court’s failure to consider controlling decisions or data that might
`reasonably be expected to alter the conclusion reached by the court.
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`Castañon v. United States, 2020 WL 5569943 (D.D.C. Sept. 16, 2020) (three-judge court)
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`(quoting Singh v. George Wash. Univ. 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (citations,
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`alterations, and quotation marks omitted)); see also McLaughlin v. Holder, 864 F. Supp. 2d 134,
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`141 (D.D.C. 2012) (quoting Ficken v. Golden, 696 F. Supp. 2d 21, 35 (D.D.C. 2010)).
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`Case 1:14-cv-00263-RDM Document 164 Filed 02/08/21 Page 14 of 34
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`The parties’ briefing largely revisits arguments that the Court considered in its earlier
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`opinion rejecting the Hooper and Akins Plaintiffs’ request that it order the Secretary to pay them
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`interest pursuant to § 1395g(d). Shands III, 2019 WL 1228061, at *14–17. As before, Plaintiffs
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`concede that, in the usual course, the Medicare statute’s channeling provisions divest the district
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`courts of jurisdiction to consider claims that were not first presented to the Secretary or his
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`representative. Dkt. 155 at 2–3. As before, they concede that they never asked the Secretary or
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`anyone else involved in the administrative process to award them interest under § 1395g(d). Id.
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`at 3–4. And, as before, they argue that two exceptions to the usual presentment requirement save
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`their claim: First, invoking the D.C. Circuit’s decision in Council for Urological Interests v.
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`Sebelius, 668 F.3d 704, 705 (D.C. Cir. 2011), they contend there was no means for them to raise
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`their § 1395g(d) claim in the administrative process and that, where application of the channeling
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`rule “would not lead to a channeling of review through the agency, but would mean no review at
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`all,” it does not apply. Dkt. 155 at 3. Second, invoking the D.C. Circuit’s decision in Monmouth
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`Med. Ctr. v. Thompson, 257 F.3d at 811–15, they argue that the channeling rule does not bar
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`review under the Mandamus Act, 28 U.S.C. § 1361. Dkt. 155 at 3 n.4.
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`Because the Mandamus Act, like the Medicare statute, requires plaintiffs to exhaust
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`administrative remedies before bringing suit, Monmouth Med. Ctr., 257 F.3d at 813, both of the
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`Hooper and Akin Plaintiffs’ theories turn on (1) whether they had the opportunity to present their
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`claims in the administrative process, and (2) whether they, in fact, sought relief from the
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`Secretary. In considering Plaintiffs’ arguments, it is first necessary to distinguish between two
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`concepts of what it means to present a claim in the administrative process. Under the first, more
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`general concept, presentment simply means to raise the issue with the administrative agency in
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`some manner before seeking judicial review. Under the second, which is more specific to the
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`Case 1:14-cv-00263-RDM Document 164 Filed 02/08/21 Page 15 of 34
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`Medicare statute, presentment means to follow the reticulated statutory and regulatory rules for
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`obtaining PRRB review as a prerequisite to seeking judicial review. The Court starts with the
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`first of these concepts because it readily resolves the Hooper and Akin Plaintiffs’ contention that
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`they are entitled to relief under the Mandamus Act even though they never—in any way—raised
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`their claim to § 1395g(d) interest in the administrative process. The Court will then turn to the
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`specific presentment rules contained in the Medicare statute and its implementing regulations
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`and Plaintiffs’ contention that the Court has general federal question jurisdiction.
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`A. Mandamus Act
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` “The ‘remedy of mandamus is a drastic one, to be invoked only in extraordinary
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`circumstances.’” Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002) (quoting Allied Chem.
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`Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980)). Mandamus “is available [only] if (1) the plaintiff
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`has a clear right to relief; (2) the defend