                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA




 AMERICAN HOSPITAL ASSOCIATION,
 et al.,

         Plaintiffs,

                 v.                                        Civil Action No. 14-851 (JEB)

 SYLVIA M. BURWELL, in her official
 capacity as SECRETARY OF HEALTH
 AND HUMAN SERVICES,

          Defendant.




                                 MEMORANDUM OPINION

       The best medicine can sometimes be hard to swallow. More than two years ago, a set of

Medicare service providers asked the Court to issue a writ of mandamus to compel the Secretary

of Health and Human Services to process their long-pending claim-reimbursement appeals in

accordance with statutory timelines. The Court declined to do so, believing the matter best left

to the political process. The Court of Appeals disagreed, holding that this Court has jurisdiction

to grant mandamus relief and remanding the case here for a determination on the merits. In

response, the Secretary now moves to stay the proceedings until September 30, 2017, to allow

HHS to move forward on various administrative and legislative efforts designed to tackle the

backlog of reimbursement appeals. As was true two years ago, the Court is reluctant to

intervene. But the backlog and delays have only worsened since Plaintiffs first sought the




                                                 1
Court’s help, and the Secretary’s proposed solutions are unlikely to turn the tide. The Court

accordingly will deny the Secretary’s Motion for Stay.

I.     Background

       The Court offered a primer on Medicare reimbursement in its first Opinion in this case.

See Am. Hosp. Ass’n v. Burwell (AHA I), 76 F. Supp. 3d 43, 46-48 (D.D.C. 2014), rev’d, Am.

Hosp. Ass’n v. Burwell (AHA II), 812 F.3d 183 (D.C. Cir. 2016). It now briefly reviews the

aspects of the administrative-appeals process relevant to the instant Motion.

       Health-care providers and suppliers submit an extraordinary number of Medicare fee-for-

service claims on behalf of the program’s beneficiaries — 1.2 billion in fiscal year 2014. See

Gov’t Accountability Office, Medicare Fee-for-Service: Opportunities Remain to Improve

Appeals Process 1 (May 2016), http://www.gao.gov/assets/680/677034.pdf (GAO Report). A

Medicare Administrative Contractor (MAC) processes each claim for reimbursement and decides

whether to pay it or deny it as invalid or improper. See 42 U.S.C. § 1395kk-1(a). If the claim is

denied, the provider may appeal.

       The Medicare Act sets out a sequential four-step administrative-appeal process, each of

which must be completed within a statutorily provided deadline: (1) redetermination by the

MAC, which must be completed within 60 days, id. § 1395ff(a)(3)(A), (a)(3)(C)(ii); (2) on-the-

record reconsideration by a Qualified Independent Contractor (QIC), which must be completed

within 60 days, id. §1395ff(c)(3)(C)(i); (3) review, including a hearing, by an administrative law

judge in HHS’s Office of Medicare Hearings and Appeals (OMHA), which, absent a waiver,

must be completed within 90 days, id. § 1395ff(d)(1)(A); and (4) review by the Medicare

Appeals Council within the Departmental Appeals Board (DAB), which must render a decision

or remand to the ALJ within 90 days. Id. § 1395ff(d)(2)(A). If the provider’s claim is worth at

                                                 2
least $1,500, the DAB’s decision is subject to judicial review. Id. § 1395ff(b)(1)(E)(i),

(b)(1)(E)(iii); 42 C.F.R. § 405.1006(c); 80 Fed. Reg. 57,827 (Sept. 25, 2015). When a statutory

deadline lapses before a decision has been made, moreover, a provider may leapfrog its appeal to

the next stage through a process referred to as “escalation.” See 42 U.S.C. §§

1395ff(c)(3)(C)(ii), (d)(3)(A), (d)(3)(B); 42 C.F.R. §§ 405.1104, 405.1108(d), 405.1132(b).

       Taking the statutory deadlines together, a Medicare-reimbursement claim should proceed

through all four steps of the administrative-appeal process within one year — “and for years they

did.” AHA I, 76 F. Supp. 3d at 46. Recently, however, a massive accumulation of backlogged

cases has triggered significant delays, particularly at step three — ALJ review. Between fiscal

years 2010 and 2014, the number of appeals filed at step three grew 936% — from 41,733 to

432,534. See GAO Report at 11. By the end of FY2014, 767,422 appeals were pending at step

three, see Mot., Exh. 1 (Projections Chart) at 26, and 96% of ALJ decisions were issued well

after the 90-day statutory deadline. See GAO Report at 18. In FY2014, it took OMHA an

average of 415 days to process a step three appeal; it now takes 935 days. See HHS, Office of

Medicare Hearings and Appeals (OMHA): Current Workload — Decision Statistics (July 25,

2016), http://www.hhs.gov/omha/Data/Current%20Workload/index.html.

       Plaintiffs point to the Recovery Audit Program, which was “fully implemented” in 2010,

AHA II, 812 F.3d at 186, as the “primary culprit in creating and sustaining” the backlog. See

Opp. at 5. Congress required the Secretary to set up the Program to identify under- and

overpayments and recoup the latter. See 42 U.S.C. § 1395ddd(h)(1). To do so, the Secretary

contracts with Recovery Audit Contractors (RACs), who are private entities that “audit provider-

favorable MAC decisions in ‘post-payment’ review.” AHA I, 76 F. Supp. 3d at 47 (citing 42

U.SC. § 1395ddd(f)(7)(A)). RACs are paid on a contingent basis — they “receive a cut of any

                                                 3
improper payments they recover” — “and can challenge claims going back as far as three years.”

Id. (citing 42 U.S.C. § 1395ddd(h)(1); Statement of Work for the Medicare Fee-for-Service

Recovery Audit Program 9-10, https://www.cms.gov/Research-Statistics-Data-and-

Systems/Monitoring-Programs/recovery-audit-program/downloads/090111racfinsow.pdf).

Because a RAC’s decision to deny payment of a reimbursement claim is “appealable through the

same administrative process as initial denials, the RAC program has contributed to a drastic

increase in the number of administrative appeals.” AHA II, 812 F.3d at 187.

          The Secretary agrees that the RAC Program is a contributor to the backlog, but also

points to other sources: an increase in Medicare beneficiaries; a growing practice among some

providers to appeal virtually every claim denial through ALJ review; and a significant rise in the

number of appeals filed by Medicaid state agencies. See Mot., Exh. A (Declaration of Ellen

Murray), ¶¶ 10-13.

          Frustrated by the long delays, Plaintiffs — the American Hospital Association, Baxter

Regional Medical Center, Covenant Health, and Rutland Regional Medical Center — filed suit

in May 2014. They asked the Court to grant mandamus relief to compel the Secretary to

adjudicate their pending administrative appeals in compliance with the statutory deadlines, as

well as to comply with the statutory deadlines in administering the appeals process for all

hospitals. See ECF No. 1 (Complaint) at 21-22. Plaintiffs then filed a motion for summary

judgment, see ECF No. 8, and the Secretary moved to dismiss for lack of jurisdiction. See ECF

No. 12.

          The Court concluded that the jurisdictional and merits inquiries at issue merged and thus

resolved the parties’ motions together. AHA I, 76 F. Supp. 3d at 50. It analyzed six factors to

determine whether the agency’s delay was “‘so egregious’ as to warrant relief,” id. (quoting

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Telecomm. Research & Action Ctr. v. FCC, 750 F.2d 70, 79 (D.C. Cir. 1984)), and concluded

that because of “HHS’s budgetary constraints, its competing priorities, and its incipient efforts to

resolve the issue,” as well as Congress’s awareness of the problem, mandamus was not

warranted. Id. at 56. It thus denied Plaintiffs’ motion for summary judgment and granted the

Secretary’s motion to dismiss for lack of jurisdiction. Id.

         Plaintiffs appealed, and the D.C. Circuit reversed and remanded with instructions for

further proceedings. The Court of Appeals explained that the jurisdictional and merits inquiries

are distinct and should be approached separately. See AHA II, 812 F.3d at 190. It then

addressed only the former, concluded that “the threshold requirements for mandamus jurisdiction

are met,” and reversed this Court’s dismissal for lack of jurisdiction. Id. at 192. The Court of

Appeals further directed this Court, on remand, to “determine whether ‘compelling equitable

grounds’ now exist to issue a writ of mandamus,” id., and identified factors weighing in favor of

and against mandamus. See id. at 192-93.

         On remand, this Court held a status hearing at which the Secretary submitted that a stay

of proceedings would be appropriate. The Court requested briefing, and the Secretary has now

moved to stay this action until September 30, 2017, the close of the next full appropriations

cycle.

II.      Legal Standard

         “Cases may be stayed for any number of reasons. Parallel criminal prosecutions may be

ongoing; dispositive appellate decisions may be pending; or the parties may otherwise desire

some respite.” Liff v. Office of the Inspector General for the U.S. Dep’t of Labor, No. 14-1662,

2016 WL 4506970, at *2 (D.D.C. Aug. 26, 2016). “To accommodate these ups and downs of

litigation,” id., the Court possesses a “power to stay proceedings [that] is incidental to the power

                                                  5
inherent in every court to control the disposition of the causes on its docket with economy of

time and effort for itself, for counsel, and for litigants. How this can best be done calls for the

exercise of judgment, which must weigh competing interests and maintain an even balance.” Air

Line Pilots Ass’n v. Miller, 523 U.S. 866, 879 n.6 (1998) (quoting Landis v. N. Am. Co., 299

U.S. 248, 254-55 (1936)).

III.    Analysis

        Whatever this Court originally thought of the merits of this case, it must, of course,

follow the Court of Appeals’ direction on remand. In its opinion, that court set out several

considerations weighing for and against mandamus, each of which this Court addresses in the

subsections that follow. See Parts III.A, B, infra. Weighing those considerations, as well as

acknowledging the fact that the backlog had worsened since this Court’s 2014 decision, the

Court of Appeals hypothesized that this Court, on remand, “might find it appropriate to issue a

writ of mandamus ordering the Secretary to cure the systemic failure to comply with the

deadlines.” AHA II, 812 F.3d at 193. The Court of Appeals nonetheless cautioned that “if the

district court determines on remand that Congress and the Secretary are making significant

progress toward a solution, it might conclude that issuing the writ is premature” and “consider

such action as ordering the agency to submit status reports.” Id. If, however, “the political

branches have failed to make meaningful progress within a reasonable period of time — say, the

close of the next full appropriations cycle, . . . the clarity of the statutory duty likely will require

issuance of the writ.” Id.

        As a threshold matter, it is important to note that the question immediately before this

Court is whether to grant the Secretary’s Motion for Stay, not whether to grant mandamus relief.

Similar to the issuance of mandamus, however, which requires a balance of the equities, see id.

                                                    6
at 191, deciding whether a stay is appropriate requires the Court to assess the parties’ asserted

interests, weigh the equities, and exercise its judgment. See Air Line Pilots Ass’n, 523 U.S. at

879 n.6. The stay and mandamus inquiries thus are overlapping. The Court, consequently,

structures its analysis of the Secretary’s Motion for Stay around the Court of Appeals’ factors for

and against mandamus and the critical consideration of whether the legislative and executive

branches are making “significant progress toward a solution.” AHA II, 812 F.3d at 193.

       A. Factors Against Mandamus

       As the Court of Appeals observed, “Perhaps counseling most heavily against mandamus

is the writ’s extraordinary and intrusive nature, which risks infringing on the authority and

discretion of the executive branch.” Id. at 192. Granting the writ in this case would almost

surely require the Secretary to significantly alter the agency’s priorities and operations,

particularly as to the RAC Program. The Court is mindful of the agency’s “comparative

institutional advantage” in this domain and of the practical challenges that would flow from

denying the stay and granting the writ. In re Barr Labs, Inc., 930 F.2d 72, 74 (D.C. Cir. 1991);

see also AHA I, 76 F. Supp. 3d at 51, 53-54.

       Likewise, the Court must consider “the Secretary’s good faith efforts to reduce the delays

within the constraints she faces.” AHA II, 812 F.3d at 192. The Secretary repeatedly has

assured the Court that resolving the ALJ backlog is “a matter of the highest priority,” Mot. at 2;

Reply at 1, and has suggested the agency submit status reports every six months during the stay

to enable the Court and Plaintiffs to monitor the political branches’ progress in reducing the

backlog. See Mot. at 10. Importantly, the Secretary appears to have devoted considerable effort

to designing and implementing various administrative initiatives to target the backlog, as



                                                  7
documented in the declaration of Ellen Murray, Assistant Secretary for Financial Resources and

HHS’s Chief Financial Officer. See Mot., Exh. A.

       Echoing a point the Court made in its prior Opinion, the Court of Appeals also cited as a

factor against mandamus “Congress’s awareness of and attention to the situation.” AHA II, 812

F.3d at 192 (citing 76 F. Supp. 3d at 56). Though still true, the force of Congress’s knowledge

and ability to act as a reason to deny mandamus diminishes with the passage of time absent

meaningful legislative action, particularly as the backlog and delays have worsened.

       Finally, the availability of escalation as a remedy counsels against the conclusion that the

delays are so egregious as to warrant mandamus relief. Id. at 192. As the Court of Appeals

observed, however, escalation “may offer less than full relief.” Id. ALJ review is an appellant’s

first opportunity for a full evidentiary hearing, during which the provider may provide oral

testimony and “engage with ALJs and respond to questions in real time.” AHA I, 76 F. Supp. 3d

at 48. If a provider escalates past the QIC and ALJ, the DAB almost certainly will decide the

appeal based only on the MAC record, for “although the DAB may conduct additional

proceedings,” id. (citing 42 C.F.R. § 405.1108(d)(2)), it will not do so “unless there is an

extraordinary question of law/policy/fact.” Id. (citation omitted).

       B. Factors for Mandamus

       On the other side of the ledger are “several significant factors” favoring mandamus.

AHA II, 812 F.3d at 193. Notably, the delays have resulted in a “real impact on ‘human health

and welfare.’” Id. (quoting TRAC, 750 F.2d at 80). The problem, as this Court earlier

explained, is that “[h]ospitals are deeply out of pocket due to denied claims.” AHA I, 76 F.

Supp. 3d at 52. In fact, Amicus Curiae The Fund for Access to Inpatient Rehabilitation reports

that the problem has worsened. See Amicus Opp. at 14. Using statistics not available at the time

                                                 8
of its previous brief to this Court, Amicus offers a bleaker picture in connection with this

Motion. In March 2015, 249 rehabilitation hospitals — 21.5% of the rehabilitation hospitals that

participate in Medicare — together had pending appeals worth $135 million. Id. at 4-5.

Rehabilitation hospitals, moreover, win 80% of their reimbursement claims on appeal. Id. at 5.

That figure is even higher — 87% — when the win rate is calculated using the value, rather than

number, of the claims, id., suggesting the vast majority of that $135 million rightfully belongs

with the hospitals. But as long as the claims are tied up in the appeals process, they cannot

access those funds. Because of the consequent financial burden, some providers are “forced . . .

to reduce costs, eliminate jobs, forgo services, and substantially scale back,” all of which affects

the quality and quantity of patient care. AHA I, 76 F. Supp. 3d at 52; see also Amicus Opp. at

13-14, 16-17. These problems likely will worsen in the coming years because, as discussed

below, the backlog is projected to grow considerably absent legislative intervention. See

Projections Chart.

       In addition, the “substantial discretion” granted to the Secretary by Congress “to

implement [the Recovery Audit Program] and determine its scope” — including to curtail it as

necessary to meet the statutory deadlines — favors granting the writ, as “congressionally

imposed mandates and prohibitions trump discretionary decisions.” AHA II, 812 F.3d at 193

(citing 42 U.S.C. § 1395ddd(h)).

       C. Progress Toward a Solution

       Considering only the above arguments, given the extraordinary nature of the writ and the

Court’s reluctance to insert itself into the management of a complicated agency process, the

Court might be inclined to grant the Secretary’s Motion for Stay. Yet there is one more

consideration critical to the Court’s ultimate decision: whether the administrative and legislative

                                                  9
fixes offered in the Secretary’s briefing constitute progress sufficient to warrant pausing this

litigation until September 30, 2017. Unfortunately, the Court must conclude that they do not.

       The Secretary discusses two categories of interventions intended to combat the backlog:

(1) administrative actions with and without impact projections — i.e., estimates of the effect on

the backlog; and (2) legislation to reform the appeals process and provide the agency with

additional funding. The Court looks at each.

               1. Administrative Fixes

       The numerous administrative actions for which the Secretary has impact projections can

be grouped into four buckets. First, efforts to promote settlements: The Centers for Medicare

and Medicaid Services (CMS) within HHS, which oversees the first two steps in the appeals

process — redetermination by the MAC and reconsideration by the QIC — recently settled

approximately 260,000 inpatient-hospital claims currently awaiting ALJ review. See Murray

Decl., ¶ 19(a). And staff at OMHA — the office that oversees ALJ review – is working to

facilitate settlement conferences between CMS and appellants with a threshold number of claims

and/or amounts at issue pending before OMHA. Id., ¶ 19(e). The Secretary projects that those

settlement-conference facilitations will reduce the number of appeals currently pending at

OMHA by 27,000 by the end of FY2020. Id.

       Second, changes to the administrative-appeals process: An appellant now may waive its

right to an oral hearing before an ALJ and instead have its appeal adjudicated on the record by an

OMHA senior attorney advisor and then reviewed by an ALJ on the papers. Id., ¶ 19(g).

Appellants with 250 or more claims pending at OMHA may elect to have OMHA adjudicate

their claims using statistical sampling and extrapolation. Id., ¶ 19(f). OMHA also has received

permission to reemploy retired ALJs on a temporary and intermittent basis to conduct hearings

                                                 10
and issue decisions part-time. Id., ¶ 19(h). Together, those interventions are projected to enable

OMHA to process an additional 56,000 appeals by the end of FY2020. Id., ¶ 19(f)-(h). The

Secretary, furthermore, has offered suppliers of diabetic-testing and oxygen equipment in certain

jurisdictions the opportunity to discuss their claims with the QIC at the reconsideration level,

submit additional supporting documentation, and receive feedback and information on CMS

policies and requirements. Id., ¶ 19(d). That initiative is projected to reduce by 13,000 the

number of appeals that otherwise would have reached OMHA by FY2020. Id., ¶ 19(d)(ii). More

significantly, based on the information the QIC obtains from those discussions, it will reopen

certain reconsideration decisions pending at OMHA, which will resolve more than 202,000

appeals currently pending at OMHA and, by FY2020, reduce the number of appeals that reach

OMHA by 63,000. Id.

       Third, front-end limitations on provider activity: In certain jurisdictions, providers and

suppliers now must obtain authorization from a MAC before providing particular items or

services. Id., ¶ 19(c). Prior authorization is projected to reduce by 269,000 the number of

appeals that otherwise would have reached OMHA by the end of FY2020. Id.

       Fourth, and finally, changes to the Recovery Audit Program: The Secretary has

introduced three modifications to RAC contracts. Before referring a claim for recoupment,

RACs must offer providers the opportunity to discuss the basis of the claim and submit

additional information to substantiate it; RACs may only conduct a certain number of reviews

under a given topic unless they get approval from CMS for further reviews; and RACs will be

paid only after their decisions are upheld by a QIC in a reconsideration decision or the timeframe

to file an appeal at step two expires. Id., ¶ 19(b). Together, the three contract modifications are



                                                 11
projected to reduce by 22,000 the number of appeals that reach OMHA by the end of FY2020.

Id.

        In addition to the administrative actions with projected impacts, HHS plans to attack the

backlog with several actions for which it cannot currently estimate numerical impact, including

expanding access to electronic case-adjudication processing and web-based appeal-management

systems; beefing up oversight efforts to increase consistency and reduce erroneous denials;

training ALJs and staff on Medicare coverage law, policy, and administrative-appeal procedures;

reorganizing and updating existing field offices and opening new ones; assigning appellants with

at least 200 appealed reconsiderations to the same ALJ; and improving communication between

the various actors involved in the appeals process. Id., ¶ 21. HHS has also implemented

initiatives to reduce the current and projected backlog at the DAB, as some of the actions just

described will increase the number of appeals it receives. The DAB-focused initiatives involve

hiring paralegals to help process cases, improving case management, and processing appeals

electronically. Id., ¶ 24. In late June 2016, the Secretary issued a notice of proposed rulemaking

that, if adopted, would codify many of the proposed administrative fixes in regulation. See

Reply, Exh. A.

        Let us pause here. The previous five paragraphs are packed with impressive-sounding

action items and numbers appending multiple zeros. Summing up, HHS asserts that these

administrative measures now underway for which it can project impact numbers will result in

50% fewer backlogged OMHA appeals in FY2020 than would exist absent the interventions.

See Murray Decl., ¶ 20. Sounds like “significant progress toward a solution,” doesn’t it? Alas,

no. As is often the case, the devil is in the details.



                                                   12
       Even assuming each one of the Secretary’s administrative fixes for which HHS can

project impact numbers is implemented according to plan, the OMHA backlog will still grow

every year between FY2016 and FY2020 — from 757,090 to 1,003,444 appeals. See Projections

Chart. Admittedly, that is less bad than if the Secretary does nothing. Absent any intervention,

the OMHA backlog at the end of FY2020 will be over 1,900,000. Id. But “significant progress

toward a solution” cannot simply mean that things get worse more slowly than they would

otherwise. It has to mean real movement towards statutory compliance. The process must

improve. By the Secretary’s own numbers, the proffered administrative fixes do not clear that

bar.

       The scope of the initiatives involving the RAC Program give the Court particular pause.

At the end of April 2016, there were around 300,000 RAC-related appeals pending ALJ review,

which constituted a sizable portion — 31% — of all pending OMHA appeals. See id., ¶ 2;

Projections Chart. Yet the only RAC-related action the Secretary reports to be undertaking or

planning to undertake consists of three modifications to RAC contracts that will reduce the

number of appeals that reach OMHA by FY2020 by just 22,000. See Murray Decl., ¶ 19(b).

Twenty-two thousand is only about 7% of the current RAC-related OMHA backlog; it almost

surely will be an even smaller percentage of the RAC-related OMHA backlog in FY2020. The

Secretary’s failure to offer a more robust response to the high volume of appeals generated by

the RAC Program — a program over which she has “substantial discretion,” AHA II, 812 F.3d at

193 — is concerning. And that is so even without entertaining the argument from Plaintiffs and

Amicus that there are reasons to doubt HHS’s estimates regarding the efficacy of its proposed

modifications to the RAC contracts. See Opp. at 10; Amicus Opp. at 11-12.



                                                13
                 2. Legislative Fixes

        Administrative reforms are not the only arrows the Secretary has in her quiver. She also

points to the improvements proposed by her sister branch — Congress. According to the

Secretary, these legislative fixes will happen via two vehicles — the President’s FY2017 Budget

and the Audit & Appeal Fairness, Integrity, and Reforms in Medicare Act of 2015 (AFIRM Act).

If passed, they would increase OMHA and DAB appropriations by $1.3 billion over ten years

and permit HHS to use RAC Program recoveries to supplement annual OMHA and DAB

appropriations. See Murray Decl., ¶ 22(b). With that additional funding, OMHA would be able

to dramatically expand ALJ review, on-the-record adjudications, and settlement-conference

facilitations. Id., ¶ 22(b), (h), (i).

        The Secretary also focuses on the AFIRM Act’s policy reforms, which include letting

OMHA use less expensive Medicare Magistrates instead of ALJs to adjudicate cases with low

amounts in controversy; giving the Secretary the authority to require prior authorization for non-

emergency items or services; instituting a filing fee for appeals, refundable to those appellants

who receive a fully favorable determination; permitting the Secretary to adjudicate appeals using

sample and extrapolation techniques and consolidate related appeals; requiring an adjudicator to

remand an appealed claim to step one when a party submits new documentary evidence at or

beyond step two; and allowing OMHA to issue decisions without a hearing if there are no

material facts in dispute and the ALJ determines that binding authority controls the outcome. Id.,

¶ 22(a), (c)-(g).

        Combining the administrative measures and the legislative fixes would reduce the

number of pending OMHA cases to 50,000 by FY2020 and totally eliminate the backlog of

pending OMHA cases older than 90 days by FY2021. See Projections Chart. Plaintiffs scoff at

                                                 14
the notion that this Congress should be expected to deliver on the fixes the Secretary says it will,

and certainly not within the period of time requested for the stay, which includes the upcoming

elections, a lame-duck congressional session, and the new President’s first eight months in

office, when he or she will be focused on his or her most critical legislative priorities. See Opp.

at 12.

         The Secretary rejoins that dismissing Congress’ potential to act is premature because the

Court of Appeals “contemplated that Congress would be afforded some time to respond to [its]

ruling.” Reply at 15. But it has been seven months since the Court of Appeals issued its

decision, and Congress has taken no action. The Chairmen of the Senate and House Budget

Committees have refused to hold hearings on the President’s FY2017 budget. See Amicus Opp.

at 6 (citing Ryan Murphy & William Allison, Joint Announcement from House and Senate

Budget Committees on OMB Hearing, U.S. House of Representatives Comm. on the Budget

(Feb. 4, 2016), http://budget.house.gov/news/documentsingle.aspx?DocumentID=394136).

Finally, as the Secretary acknowledges, Congress did not fund the “robust increase in budget

authority designated for increased adjudication capacity at OMHA” included in the President’s

FY2016 budget. See Reply at 16. That Congress refused to do so when it had ample knowledge

of the backlog supports the conclusion that it is unlikely to approve an increase for FY2017. The

Secretary gives no reason to believe things will be different this year. In addition, it has been 21

months since the AFIRM Act was reported by the Senate Finance Committee to the full Senate

on December 8, 2015. See S. Rep. No. 114-177 (2015). No debate or vote has been scheduled,

and the Secretary offers no evidence that any legislative action is imminent, that the bill has

support in the House of Representatives, or that the President would sign it. See Amicus Opp. at

8.

                                                 15
       While it is not the Court’s role to comment on the priorities of a co-equal branch of

government, it must draw the conclusion that Congress is unlikely to play the role of the cavalry

here, riding to the rescue of the Secretary’s besieged program.

                                               ***

       In sum, the Court cannot conclude that the Secretary’s current proposals will result in

meaningful progress to reduce the backlog and comply with the statutory deadlines. Although

the Court remains loath to intervene in the legislative and executive branches’ efforts — or lack

thereof, as it may be — to respond to the problem, its “ultimate obligation is to enforce the law

as Congress has written it.” AHA II, 812 F.3d at 193. The balance of interests drives the

conclusion that there are equitable grounds for mandamus, and the Court will not issue a stay and

further delay the proceedings.

       The Court, however, does not possess a magic wand that, when waved, will eliminate the

backlog. Plaintiffs’ suggestion that the Court simply order HHS to resolve each of the pending

appeals by the statutorily prescribed deadlines is extremely wishful thinking. See Opp. at 2. The

Court will thus ask the parties to appear for a status conference to discuss how next to proceed.

IV.    Conclusion

       For the foregoing reasons, the Court will deny Defendant’s Motion for Stay. A separate

Order so stating will issue this day.



                                                     /s/ James E. Boasberg
                                                     JAMES E. BOASBERG
                                                     United States District Judge


Date: September 19, 2016



                                                16
