UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LOMA LINDA KII)NEY CENTER,
ET AL.,
Plaintiffs,
v. Civil Action No. 15~cv-01717 (TFH)
Consolidated with 15~cv-0]721 (TFH)
AZAR,
Defendant.

 

 

MEMORANDUM OPINIONl
INTRODUCTION
Pending before the Court are plaintiffs’ joint motion for summary judgment {ECF No.
24], the Secretary’s opposition [ECF No. 27] and identical cross motion for summary judgment
[ECF No. 28], the parties’ stipulation of dismissal of Counts II~V, [ECF No. 34], and the parties
joint motion to treat the stipulation of dismissal as a motion to amend the complaints, [ECF No.
37]. Plaintit`i"s filed a reply to the Secretary’s opposition to their motion for summary judgment
[ECF No. 30]. 'l`hey also filed an identical opposition to the Secretary’s cross motion for
summary judgment [ECF No. 29], to Wiiich the Secretary filed a reply, [ECF No. 31]. Upon
consideration of the parties’ filings, and the entire record herein, the Court shall grant the parties’
joint motion to treat the stipulation of dismissal as a motion to amend the complaintsl The

Secretary’s cross motion for summary judgment as to Count I of both complaints shall be

granted, and Plaintiffs’ motion for summary judgment as to Count l of both complaints shall be

 

1 The Court substitutes Secretaiy Alex M. Azar II in place of fenner head of the U.S. Departnient of
Health and Human Sei"vices, Ms. Sylvia Burwell. Fed. R. Civ. P. 25(d).

l

denied. The Secretary’s cross motion for summary judgment as to Counts II-V ot` both
complaints shall be denied as moot.
BACKGROUND
The Couit incorporates the following excerpt from its 2016 decision Loma Linda Um`v.
Kz’dney Ctr. v. Burweil, 185 F. Supp. 3d 196 (D.D.C. 20l6) (‘*Loma Lz`nda H”), Which describes
this case’s rather lengthy procedural history:

This case stems from the Department of l-Iealth and Human Services' denial of plaintiffs’
applications for exceptions to the payment rate for reimbursement of renal
dialysis treatment services. Plaintiffs submitted their applications on August 28, 2000. The
Centers for Medicare & Medicaid Services (“CMS”) issued the agency's initial decisions,
dated November 15, 2000, denying plaintiffs applications on the merits

On administrative appeal, the Provider Reimbursement Review Board (the “Board”)
reversed the November 15, 2000 CMS decisions, finding that the applications should have
been deemed approved because CMS did not provide notice of its decisions Within 60
working days as required by 42 U.S.C. § l395rr(b)(7) (providing that “[e]ach appiication
shall be deemed to be approved unless the Secretary disapproves it by not later than 60
Working days after the date the application is filed”). The Board concluded the issue
Whether CMS's denials of the applications Were otherwise proper was moot.

The CMS Administrator (the “Administrator”), however, reversed the Board‘s decisions,
concluding instead that CMS timely denied plaintiffs applications Within 60 working days,
even if it did not provide notice of its decisions until later. The Administrator reasoned
that section l395n'(b)(7) does not require that plaintiffs receive notice of the disapproval
within the statutory time period, but rather, requires only that CMS render the disapproval
of the applications within the 60-working day statutory period. The Administrator did not
address whether CMS‘s denials of` the applications were otherwise proper.

Plaintiffs each sought judicial review under the Administrative Procedure Act (“APA”),
their cases were consolidated, and the parties filed cross~motions for summary judgment
Plaintiffs also filed a motion to compel the production of any CMS logs reflecting the date
upon which the N`ovember 15, 2000 denial letters were actually signed and mailed.
Plaintiffs insisted their applications should have been deemed approved because, inter
alia, section 1395rr(b)(7) requires that CMS provide notice of its decision Within the 60-
working day statutory period.

On January 28, 2011, this Court granted in part and denied in part the Secretary’s motion
for summary judgrnent, granted in part and denied in part plaintiffs’ motion for summary
judgment, and affirmed a Magistrate Judge’s denial of plaintiffs' motion to compel. Loma
Linda Univ. Kz`dney Ctr. v. Sebeh`us, Civ. Nos. 06-1926 & 06»“1927, 20l1 WL 13063635,
at *1 , *10 (D.D.C. Jan. 28, 2011) (“Loma linda 1"’). ln granting partial summaryjudgment
in favor of the Secretary, this Court upheld the Administrator’s interpretation of 42 U.S.C.
§ 13951'r(b)(7) as requiring only that CMS render its disapproval of the applications within
the 60-Working day statutory period, which interpretation this Court found was entitled to
deference under Chevron USA, Inc. v. Narural Res. Def Counch [nc., 467 U.S. 837
(1984). Loma Lz`na’a I, 2011 WL 13063 63 5, at *2-3 . . . . rl`he Court further concluded that,
with respect to the Administrator’s determination that CMS’s denials Were rendered on
November 15, 2000, “the record [is] adequate to find that the Administrator's decision{s]
lare] not arbitrary, capricious, or based on insubstantial evidence in this respect.” Id. at *9.
However, because the Administrator’s final decisions addressed only the timeliness issue
and not the merits ofplaintii`fs’ applications, the Court concluded that “the Administrator's
decision{s] fare} arbitrary and capricious and a remand is necessary Jfor a determination
on the merits of Plaintift`s’ applications [.]” Id. at *4, *10.

Plaintiffs attempted to appeal this Court’s January 28, 201l ruling to the United States
Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”), but the Secretary
filed a motion to dismiss, which the D.C. Circuit granted. Specifically, the D.C. Circuit
concluded that this Court’s order was not yet final because it included a remand to the
agency for further proceedings-the D.C. Circuit noted that “[o]nce the proceedings on
remand are concluded, appellants, if still aggrieved, may return to district court, and appeal
any still~disputed part oi" the remand order as Well as any district court ruling made after
the remand.” Sept. 14, 201 1 Mandate oi`United States Court oprpeals [Civ. No. 06-1926,
ECF No. 59; Civ. No. 06_l927, ECF No. 31].

On remand before the agency, the Board rendered decisions on September 1, 2015, finding
that CMS properly denied plaintiffs’ applications-~»the Board declined to address the
timeliness issue . . . . Because the Administrator declined to review the Board's decisions,
they became the agency's final decisions on this matter.

Loma Linda II, 185 F. Supp. at 197-99.

On October 19, 2015, plaintiffs again sought judicial review under the APA. Compl.,
Oct. 19, 2015, Loma Linda Um'v. Kidney Ctr. v. Burwell, 15~cv-01717 [ECF No. l]; Compl.,
Oct. 19, 2015, Loma Linda Um'v. Med. Crr. v. Burwell, 15-cv-01721 [ECF No. 1]. The Court

consolidated the cases under case number lS~cv~017l 7 on March 3, 2016. On March 17, 2016,
3 _

plaintiffs sought leave to conduct discovery related to the date CMS signed and mailed the denial
letters [ECF No. 17]. The Court denied the motion. Loma Linda 11, 185 F. Supp. 3d at 196.

Plaintiffs filed a motion for summary judgment on July 25, 20l 6. [ECF No. 24]. As to
Count I of their complaints, they argue that the Secretary did not “rneet her burden of
demonstrating that the exception request was denied within the sixty working day period”
because the Secretary did not communicate the denial Within 60 days. Pls.’ Mot. at 10. They also
contend that the law of the case does not govern due to the D.C. Circuit’s 2011 opinion in
Gundersen Lurhemn Med. Ctr., Inc., v. Sebelius, 666 F.3d 1335 (D.C. Cir. 2011), Which they
allege is an intervening change in the laW. Pls.’ Reply at 2 [ECF No. 30]. In response, the
Secretary points to the Court’s 20l 6 opinion in Loma Lr'nda ll ruling that the timeliness issue
was governed by the law-of-the-case doctrine and that Gundersen did not undermine the Court’s
ruling in Loma Lina’a 1. Mem. ofP. & A. in Supp. ofDet`.’s Cross Mot. at 11 [ECF No. 28-1]
(citing Loma Linda II, 185 F. Supp. 3d at 200).

Plaintiffs contend that they are “not further pursuing Counts ll through V” of their
complaints “in the interests of economy and obtaining an expeditious resolution of this case.”
Pls.’ Reply. at 3, n.3 [ECF No. 30]. The Secretary alleges that plaintiffs “abandoned and waived
their merits arguments” as to those counts by failing to address them in their summary judgment
briefing Mem. ofP. & A. in Supp. of Def.’s Cross Mot. at.12 [ECF No. 28-1]. ln the alternative,
the Secretary argues that the Board’s 2015 findings and conclusions should be upheld because
they Were “thorough, Well-reasoned, consistent with the applicable statute, regulations, and
manual provisions, and were supported by substantial record evidence . . . .” Id. at 13. Although
the Secretary cited the Board’s decision in its briefing, he did not cite to the underlying

_ administrative record to support his assertions

After the motions became ripe, the D.C. Circuit held in anston &- Strawn, LLP v.

' McLean that “a motion for summary judgment cannot be deemed ‘conceded’ for Want of
opposition.” 843 F.3d 503, 508 (D.C. Cir. 2016). ln light of that decision, the Court heard
argument on the motions on December 20, 2017, and directed the Secretary to tile an unopposed
motion to dismiss Counts II-V, or supplement his motion for summary judgment to address
Counts ll-V by referencing and attaching relevant support from the administrative record. Min.
Order, Dec. 20, 2017.

On December 22, 2017, the parties filed a joint stipulation of dismissal of Counts ll-V of
the complaints pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). [ECF No. 34]. On
February l, 2018, they filed a joint motion to treat the stipulation of dismissal as a motion to
amend the complaints if the Court finds that Rule 41(a)(l)(A)(ii) does not allow the parties to
stipulate to the dismissal of only some of their claims [ECF No. 37]. If the Court decides to treat
the stipulation of dismissal as motions to amend, the parties ask that the Court apply the
previously filed pleadings and summary judgment briefs to the amended complaints, “thereby
avoiding further delays that would be accompanied by either the filing of new answers or a new
round of briefing.” Id. at 5. The parties also agree that the amended complaints will relate back to
the dates of the original complaints Id.

ANALYSIS
Counts II-V

The parties originally sought dismissal of Counts II-V under Federal Rule of Civil
Procedure 41(a)(l)(A)(ii), which provides that a plaintiff “may dismiss an action without a court
order by filing . . . a stipulation of dismissal signed by all parties Who have appeared.” Although

the D.C. Circuit has not ruled on the issue, a number of circuits have found that Rule 41 (a)

provides only for the dismissal of actions, not individual claims, and that amending-the
complaint is the proper procedure for a plaintiff to dispense with individual claims. See, e.g.,
Hells Canyori Pres. Cou!rcr'l v. Unitea’ States Forest Serv., 403 F.Bd 683, 687 (9th Cir. 2005)
(“Rule 4l(a) governs dismissals of entire actions not of individual claims”); Klay v. United
Healthgroup, Inc., 376 F.3d 1092, 1106 (l ith Cir. 2004) (“[a] plaintiff wishing to eliminate
particular claims or issues from the action should amend the complaint under Rule 15(a) rather
than dismiss under Rule 4l(a).”) (citations omitted). Courts faced with Rule 41(a) requests to
dismiss individual claims often treat them as motions to amend. See, e.g., Childress v. City of
East St. Louz's, Ill., 2010 WL 5289261 (S.D. lll. 2010) (“[t]he solution to the improper use of a
voluntary dismissal motion is to convert the faulty Rule 41 motion into a Rule 15 motion to
amend the complaint.”) (citations omitted).

In this instance, the decision whether to grant dismissal pursuant to Rule 41 or treat the
parties’ stipulation of dismissal as a motion to amend plaintiffs’ complaints is largely immaterial.
The parties agree that they no longer wish to litigate Counts II~V. They simply seek the proper
vehicle to dispense with Counts II~V without delaying the litigation and prompting further
filings In line with what appears to be the prevailing approach, the Court will treat the parties’
stipulation of dismissal as a motion to amend plaintiffs’ complaints to include only Count l of
each complaint See Fed R. Civ. P. 15(a)(2) (aside from amendment once as a matter of course,
“a party may amend its pleading only With the opposing party’s written consent or the court’s
leave”). The Court shall deny as moot the Secretary’s summary judgment motion with regard to

Counts Il~V.

Count I

The Court now turns to Count i of the complaints, which the parties request that the
Court rule on without delay. As the Court ruled once before, the timeliness issue that plaintiffs
attempt to re-litigate is controlled by the law of the case. See LaShawn A. v. Barry, 87 F.3d 1389,
1393 (D.C. Cir. 1996) (“the law-of-the-case doctrine[} [provides that] the same_issue presented a
second time in the same case in the same court should lead to the Same resu!t.”). The Court
decided the timeliness issue in Loma Linda 1, Where it evaluated the reasonableness of the
“Administrator’s decision . . . that the term ‘disapproves’ in 42 U.S.C. § 1395rr(b)(7) does not
encompass service of the CMS denial letters.” Loma Lr'na'a I, 2011 WL 13063635, at *2. The
Court ruled that because the Secretary’s interpretation of the statute “cornports with the statute’s
plain language and Congressional intent it warrants Chevron deference.” Id. Plaintiffs admit as
much when they “recognize that the Court has already ruled that the exception request was
timely disapproved because it was ‘rendered’ on November 15, 2000,” but assert the issue again
“to preserve plaintiffs’ right to file an appeal on this issue to the D.C. Circuit.” Pls.’ l\/Iot., at lO,
n.3 [ECF No. 24].

When plaintiffs sought leave to conduct discovery related to the date CMS signed and
mailed the denial letters, the Court declined to consider the issue a second time. See Loma Lr'nda
H, 185 F.Supp.3d at 200 (ruling that “judicial review of th[e] issue (at least by this Court) [was]
foreclosed by the law of the case doctrine.”). The Court also examined the Gundersen opinion and
concluded that it “does not amount to a change in the law that would warrant this Court revisiting
the timeliness issue.” Ia'. The Court noted that “[a]lthough the D.C. Circuit in Gundersen
concluded that CMS had satisfied the 60-working day requirement Where it had provided notice
of its decision [to the intermediary] prior to the 60th day, the D.C. Circuit clarified that ‘if, for
some hypothetical reason, [CMSl’s decision Was not available to the applicant in a timely manner,

7

the relevant question Would be how to interpret the appeal regulation_not section 1395rr(b)(7).”2
ld. at 200 (quoting Gundersen, 666 F.3d at 1337). The Court also found that “plaintiffs otherwise
fail[ed] to assert, much less demonstrate, that the Court’s previous decision was clearly erroneous
and Would work a manifest injustice.” Id; see Sherley v. Sebelr'us, 689 F.?)d 776, 781 (D.C. Cir.
2012) (noting that courts are “appropriately loathe to reconsider issues already decided, except in
the case of extraordinary circumstances such as where the initial decision Was clearly erroneous
and would work a manifest injustice.”) (internal quotation marks and citations omitted).

In light of the Court’s prior rulings, including its consideration of Gundersen, the law of
the case has been established, and the Court shall not revisit the timeliness issue further.

CONCLUSION

For the foregoing reasons, the Court GRANTS the parties’ joint motion to treat the
stipulation of dismissal as a motion to amend the complaints DENIES plaintiffs’ motion for
summary judgment as to Count I of the complaints and GRANTS the Secretary’s cross motion
for summary judgment as to Count l of the complaints The Court DENIES AS MOOT the

Secretary’s cross motion for summary judgment as to Counts II-V.

FebmarW/itd§ ,><£~" // /Véw

Thomas F. Ho:g§£i )
SENIOR UNlTED STA ISTRICT JUDGE

 

2 Even so, it appears reasonable to conclude that CMS notified the intermediary on the 60th day after plaintiffs
submitted their exception requests The intermediary received CMS’s denial letters on November 27, 2000, the 61se
working day after plaintiffs submitted their request. See Pls.’ Mot. at 12 [ECF No. 24]; Loma Linda Kidney Ctr. J.A.
at 48 [ECF No. 32]; Loma Linda Med. Ctr. J.A. at 18 [ECF No. 33]. The Secretary asserts that the government
mailed the letters from Baltimore, Maryland, to Oxnard, California, and that the government must have mailed them
on Friday, November 24, given that they arrived the following Monday. Def.’s Reply at 3 [ECF No. 31]; Def.’s
Memo. in Opp. to Mot. for Disc. at 22 [ECF No. 19]. Although plaintiffs suggest that the government may have
faxed or emailed the letters on November 27, 2000, they do not provide support for that assertion Pls.’ Mot. at 13
[ECF No. 24].

