                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

SWEDISH AMERICAN HOSPITAL,                     :
                                               :
                       Plaintiff,              :       Civil Action No.:       08-2046 (RMU)
                                               :
                       v.                      :       Re Document Nos.:       4, 13
                                               :
KATHLEEN SEBELIUS, in her official             :
capacity as Secretary of the Department of     :
Health and Human Services, et al.,             :
                                               :
                       Defendants.             :

                                    MEMORANDUM OPINION

                GRANTING IN PART AND DENYING IN PART THE DEFENDANTS’
                MOTION TO DISMISS; GRANTING THE PLAINTIFF’S MOTION TO
                 COMPEL PRODUCTION OF THE ADMINISTRATIVE RECORD

                                       I. INTRODUCTION

       This matter comes before the court on the defendants’ motion to dismiss and the

plaintiff’s motion to compel production of the administrative record. On September 30, 2008,

the Secretary of the Department of Health and Human Services (“the Secretary”) issued an

administrative ruling that required the plaintiff, a hospital in Rockford, Illinois, to repay several

million dollars to the Medicare program. The plaintiff commenced this action challenging the

Secretary’s decision under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq.,

and asserting tort claims against Mutual of Omaha (“Mutual”), the insurance company that

advised the plaintiff with respect to its Medicare obligations, and Wisconsin Physicians Service

Insurance Corporation (“WPS”), the insurance company to which Mutual’s Medicare business

was transferred in 2007. As discussed in more detail below, because the court lacks subject

matter jurisdiction over the plaintiff’s tort claims against the insurance companies, it grants in

part the defendants’ motion to dismiss. The court denies, however, the portion of the defendants’
motion that calls for the dismissal of the plaintiff’s APA claim against the Secretary. Finally, the

court grants the plaintiff’s motion to compel production of the administrative record.



                                      II. BACKGROUND

                                    A. The Medicare Program

       Medicare provides health insurance to the elderly and disabled by entitling eligible

beneficiaries to have payment made on their behalf for the care and services rendered by

hospitals, termed “providers.” See 42 U.S.C. §§ 1395 et seq. Providers, in turn, are reimbursed

by insurance companies, known as “fiscal intermediaries,” that have contracted with the

Department of Health and Human Services to aid in administering the Medicare program. See id.

§ 1395h. Fiscal intermediaries determine the amount of reimbursement due to providers under

the Medicare Act and applicable regulations. See id.

       Providers that train residents in approved residency programs may be reimbursed for the

costs of “graduate medical education” (“GME”) and “indirect medical education” (“IME”). See

42 U.S.C. § 1395ww. One variable used to calculate the GME and IME costs to be allocated to a

provider is the number of full-time equivalent (“FTE”) residents in that provider’s training

program. See id. A high GME or IME FTE count yields a correspondingly high GME or IME

payment for the provider. See id.

       Providers obtain Medicare reimbursement by submitting cost reports to their fiscal

intermediary demonstrating the costs they incurred during the previous fiscal year and the portion

of those costs to be allocated to Medicare. See 42 C.F.R. § 413.20. After receiving a provider’s

cost report, the fiscal intermediary may audit the report before determining the total amount of


                                                 2
reimbursement to which the hospital is entitled, which it then memorializes in a Notice of

Program Reimbursement (“NPR”). See id. § 405.1803. The fiscal intermediary may reopen and

revise a cost report within three years after the date of the NPR. Id. § 405.1885.

       In the Balanced Budget Act of 1997 (“BBA”), Congress capped the amount that providers

could be reimbursed for their GME and IME costs. See id. More specifically, for cost reporting

periods beginning on or after October 1, 1997, teaching hospitals were limited to the number of

GME FTEs and IME FTEs “for the hospital’s most recent cost reporting period ending on or

before December 31, 1996” for the purpose of calculating GME and IME payments. See id.

Following the enactment of the BBA, the Secretary promulgated regulations implementing the

caps imposed by the statute. See 42 C.F.R. §§ 413.86(g)(4), 412.105(f)(1)(iv) (1997). The

Secretary subsequently revised the regulations concerning the GME and IME resident caps in

1998, 1999 and 2001. See 42 C.F.R. §§ 413.86, 412.105 (1998); 42 C.F.R. §§ 413.86(g)(8)

(1999); 42 C.F.R. §§ 413.86(g)(8)(iii), 412.105(f)(1)(ix) (2001).

                              B. Factual and Procedural History

       The plaintiff is a certified Medicare provider that participates in the Family Practice

Residency Program (“the residency program”), which is sponsored by the University of Illinois

College of Medicine for the purpose of training residents as family practice physicians. Compl.

¶¶ 12-14. The plaintiff alleges that during fiscal years 1995 and 1996, another hospital, St.

Anthony Medical Center (“St. Anthony”), also participated in the residency program. Id. ¶¶ 17-

18. In 1996, however, St. Anthony withdrew from the program and the plaintiff absorbed the

residents that St. Anthony would otherwise have trained. Id.




                                                 3
       After the plaintiff took on the residents who had previously been trained by St. Anthony,

the plaintiff contacted the fiscal intermediary, Mutual, which advised the plaintiff to adjust its

GME and IME FTE resident caps upward to reflect the fact that the plaintiff had assumed the

residents formerly trained by St. Anthony. Id. ¶¶ 18-19. The plaintiff’s NPRs for fiscal years

1998 through 2002 were based on FTE resident caps that reflected both the residents trained by

the plaintiff and the residents previously trained by St. Anthony. Id. ¶ 20.

       In February 2005, Mutual reopened the cost reports for fiscal years 1999 through 20021

and adjusted the plaintiff’s FTE resident caps downward to omit consideration of the residents

previously trained by St. Anthony. Id. ¶¶ 21-22. Likewise, Mutual omitted consideration of St.

Anthony’s residents in the NPR that it issued for fiscal year 2003. Id. ¶ 23. After the plaintiff

appealed Mutual’s determination to the Provider Reimbursement Review Board, the Secretary

issued a ruling affirming Mutual’s adjustments on September 30, 2008. Id. ¶ 25. This

determination resulted in Medicare recouping nearly $5 million from the plaintiff. Id.

       The plaintiff commenced the instant action in this court in November 2008 alleging that

the Secretary’s decision violated the APA and asserting estoppel and other tort claims against

Mutual and WPS. See generally id. On April 9, 2009, the defendants filed a motion to dismiss

for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for




1
       As the NPR for fiscal year 1998 was issued in February 2000, see Compl. ¶ 37, the three-year
       limitation period on reopening a cost report had passed by the time Mutual issued the Notices of
       Reopening in February 2005, see id. ¶ 21.


                                                  4
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).2 See generally Defs.’

Mot. to Dismiss (“Defs.’ Mot.”). In response, the plaintiff filed a motion to compel production

of the administrative record, see generally Pl.’s Mot. for Turnover of the Admin. R. (“Pl.’s

Mot.”), as well as an opposition to the defendants’ motion to dismiss, see generally Pl.’s Opp’n

to Defs.’ Mot. (“Pl.’s Opp’n”). With both motions fully briefed, the court turns now to the

applicable legal standards and the parties’ arguments.



                                          III. ANALYSIS

            A. Legal Standard for a Motion to Dismiss Pursuant to Rule 12(b)(1)

       Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies

outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938); see also Gen.

Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C. Cir. 2004) (noting that “[a]s a

court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction”).

       Because “subject-matter jurisdiction is an ‘Art[icle] III as well as a statutory

requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal

court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins.

Corp. of Ir., Ltd. v. Compagnie des Bauxite de Guinea, 456 U.S. 694, 702 (1982)). On a motion

to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the



2
       The defendants also moved to dismiss the plaintiff’s claims against Mutual for insufficient
       service of process under Federal Rule of Civil Procedure 12(b)(5), see Defs.’ Mot. to Dismiss
       (“Defs.’ Mot.”) at 25, but later withdrew that motion, see Defs.’ Reply in Support of Mot. to
       Dismiss at 17 n.14.

                                                  5
burden of establishing by a preponderance of the evidence that the court has subject matter

jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

       Because subject matter jurisdiction focuses on the court’s power to hear the claim,

however, the court must give the plaintiff’s factual allegations closer scrutiny when resolving a

Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a

claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003); Grand Lodge of

Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). Thus, the court is

not limited to the allegations contained in the complaint. Hohri v. United States, 782 F.2d 227,

241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). When necessary, the court

may consider the complaint supplemented by undisputed facts evidenced in the record, or the

complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.

Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).

            B. Legal Standard for a Motion to Dismiss Pursuant to Rule 12(b)(6)

       A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v.

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain

statement of the claim, giving the defendant fair notice of the claim and the grounds upon which

it rests. Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing

FED . R. CIV . P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Such simplified notice

pleading is made possible by the liberal opportunity for discovery and the other pre-trial

procedures established by the Rules to disclose more precisely the basis of both claim and

defense to define more narrowly the disputed facts and issues.” Conley, 355 U.S. at 47-48

(internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his


                                                  6
prima facie case in the complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14 (2002), or

“plead law or match facts to every element of a legal theory,” Krieger v. Fadely, 211 F.3d 134,

136 (D.C. Cir. 2000) (internal quotation marks and citation omitted).

        Yet, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.

Ct. 1937, 1949 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007) (abrogating the oft-quoted language from Conley, 355 U.S. at 45-56, instructing

courts not to dismiss for failure to state a claim unless it appears beyond doubt that “no set of

facts in support of his claim [] would entitle him to relief”). A claim is facially plausible when

the pleaded factual content “allows the court to draw the reasonable inference that the defendant

is liable for the misconduct.” Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to

a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has

acted unlawfully.” Id.

        In resolving a Rule 12(b)(6) motion, the court must treat the complaint’s factual

allegations – including mixed questions of law and fact – as true and draw all reasonable

inferences therefrom in the plaintiff’s favor. Macharia v. United States, 334 F.3d 61, 64, 67

(D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir.

2003); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the

court need not accept as true inferences unsupported by facts set out in the complaint or legal

conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C.

Cir. 2004); Browning, 292 F.3d at 242. “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.


                                                   7
  C. The Court Grants in Part and Denies in Part the Defendants’ Motion to Dismiss and
     Grants the Plaintiff’s Motion to Compel Production of the Administrative Record

         1. The Court Grants the Defendants’ Motion to Dismiss the Plaintiff’s
   Tort Claims Against Mutual and WPS Based on Lack of Subject Matter Jurisdiction

       This Circuit has noted that courts should resolve Rule 12(b)(1) jurisdictional challenges

before considering Rule 12(b)(6) challenges. United States ex rel. Settlemire v. District of

Columbia, 198 F.3d 913, 920 (D.C. Cir. 1999) (citing United States ex rel. Kreindler &

Kreindler v. United Techs. Corp., 985 F.2d 1148, 1155-56 (2d Cir. 1993)). Put simply, “if [the

court] must dismiss the complaint for lack of subject matter jurisdiction, the accompanying

defenses and objections become moot and do not need to be determined.” Kreindler &

Kreindler, 985 F.2d at 1155-56 (citing 5 FED . PRAC. & PROC. § 1350). Accordingly, the court

will first address the defendants’ argument that the court lacks subject matter jurisdiction over

the plaintiff’s tort claims against Mutual and WPS. See Defs.’ Mot. at 17-20.

       The defendants argue that 42 U.S.C. § 405(h), as construed in unambiguous Supreme

Court precedent, makes clear that the Medicare Act provides no remedy for an aggrieved hospital

beyond the recovery, through the administrative process set forth in the Act, of the Medicare

reimbursement to which the hospital is entitled. Id. at 17-18. Thus, the defendants argue, the

court’s jurisdiction extends only to the plaintiffs’ APA claim against the Secretary and does not

encompass a tort action against Mutual and WPS for additional money damages arising out of the

Secretary’s denial of the plaintiff’s request for reimbursement. Id. at 18-20. In addition, the

defendants contend that because Mutual and WPS were acting as agents of the federal

government in committing the conduct in question, the claims asserted against them as fiscal




                                                 8
intermediaries are effectively suits against the United States government, which is immune from

the plaintiff’s tort claims. Id. at 20.

          The plaintiff takes issue with the defendants’ suggestion that it is seeking “additional”

funds, pointing out that it seeks only the Medicare reimbursement to which it claims it is entitled

by virtue of having trained St. Anthony’s former residents, rather than any “additional” money.

Pl.’s Opp’n at 18. The plaintiff also draws factual distinctions between this case and the three

principal cases upon which the defendants rely – Shalala v. Illinois Council on Long Term Care,

Inc., 529 U.S. 1 (2000), Schweiker v. Chilicky, 487 U.S. 412 (1988), and Heckler v. Ringer, 466

U.S. 602 (1984) – by pointing out that the plaintiffs in Schweiker sought money damages against

the federal government for alleged constitutional violations, and that the plaintiffs in Illinois

Council on Long Term Care and Ringer failed to exhaust their administrative remedies and

asserted federal question jurisdiction pursuant to 28 U.S.C. § 1331. Pl.’s Opp’n at 18. Here, in

contrast, whether the plaintiff exhausted its administrative remedies is not in dispute, and the

plaintiff “is not trying to invoke jurisdiction under federal question jurisdiction.” Id. at 18-19. In

short, the plaintiff maintains that it “is only seeking review of the [Provider Reimbursement

Review Board’s] decision and recovery of the amount of reimbursement based on its educating

and training all the Program residents after St. Anthony discontinued its involvement in the

residency program.” Id. at 19.

          Pursuant to 42 U.S.C. § 405(h), as applied to the Medicare program by 42 U.S.C. §

1395ii,

          [n]o findings of fact or decision of the [Secretary] shall be reviewed by any person,
          tribunal, or governmental agency except as herein provided. No action against the
          United States, the [Secretary], or any officer or employee thereof shall be brought


                                                    9
       under section 1331 [(authorizing federal question jurisdiction)] or 1346 [(authorizing
       federal defendant jurisdiction)] of Title 28 to recover on any claim arising under this
       subchapter.

42 U.S.C. §§ 405(h), see also id. § 1395ii. Thus, the plaintiff’s tort claims against Mutual and

WPS are barred if those fiscal intermediaries are “officer[s] or employee[s]” of the United States

or the Secretary and if the plaintiff’s tort claims “aris[e] under” the Medicare Act. The court will

consider each of these questions in turn.

       First, the regulations interpreting the Medicare Act state that fiscal “[i]ntermediaries and

carriers[3] act on behalf of [the Department of Health and Human Services] in carrying out certain

administrative responsibilities that the law imposes.” 42 C.F.R. § 421.5(b). Several other

Circuits have concluded that fiscal intermediaries serve as “officer[s] or employee[s]” of the

United States and therefore fall under the scope of § 405(h). See United States ex rel. Rahman v.

Oncology Assocs., P.C., 198 F.3d 502, 510-11 (4th Cir. 1999) (observing that “[n]ot only are

[carriers] given a clear duty to perform official acts in administering the program, they are

actually considered ‘officers or employees’ of the United States within the meaning of the

Medicare Act” (citing Your Home Visiting Nurse Servs., Inc. v. Shalala, 525 U.S. 449 (1999));

Midland Psychiatric Assocs., Inc. v. United States, 145 F.3d 1000, 1003-04 (8th Cir. 1998)

(concluding that fiscal intermediaries and carriers “are government agents . . . [because] [u]nder

contract with the Secretary of Health and Human Services, they do the work of the Government

on the Secretary’s behalf”) (internal citations omitted); Bodimetric Health Servs., Inc. v. Aetna

Life & Cas., 903 F.2d 480, 487-88 (7th Cir. 1990) (holding that fiscal intermediaries serve as



3
       Carriers are comparable to fiscal intermediaries. See United States ex rel. Rahman v. Oncology
       Assocs., P.C., 198 F.3d 502, 510 n.1 (4th Cir. 1999).

                                                 10
“officer[s] or employee[s]” of the United States). In addition, this Circuit has held that fiscal

intermediaries serve as agents of the United States. See Pine View Gardens, Inc. v. Mutual of

Omaha Ins. Co., 485 F.2d 1073, 1075 (D.C. Cir. 1973) (noting that the fiscal intermediary was

“an agent for the government as a disclosed principal”). Thus, the court concludes that Mutual

and WPS are “officer[s] or employee[s]” of the government of the purposes of § 405(h).

       Second, a claim “aris[es] under” the Medicare Act for purposes of § 405(h) if it is

“inextricably intertwined” with a claim for benefits, Ringer, 466 U.S. at 614-15, regardless of

whether the claim is brought under federal question jurisdiction,4 see Bodimetric Health Servs.,

Inc., 903 F.2d at 487 (holding that “[a] party cannot avoid the Medicare Act’s jurisdictional bar

simply by styling its attack as a claim for collateral damages instead of a challenge to the

underlying denial of benefits” because “[i]f litigants who have been denied benefits could

routinely obtain judicial review of these decisions by recharacterizing their claims under state . . .

causes of action, the Medicare Act’s goal of limited judicial review for a substantial number of

claims would be severely undermined”). Under this standard, the plaintiff’s tort claims against

Mutual and WPS plainly “aris[e] under” the Medicare Act. See Ringer, 466 U.S. at 614 (noting

that “at bottom, [the plaintiffs’ constitutional and statutory claims amounted to] a claim that they

should be paid” Medicare reimbursements). Indeed, the plaintiff in this case appears to concede

that its claims “arise under” the Medicare Act. See Compl. ¶ 5 (stating that this “action arises out


4
       The court notes that, contrary to the plaintiff’s assertion that it “is not trying to invoke
       jurisdiction under federal question jurisdiction,” Pl.’s Opp’n at 18-19, the plaintiff in fact states
       in the complaint that “jurisdiction is based on 28 U.S.C. § 1331 [(governing federal question
       jurisdiction)], 42 U.S.C. § 1395oo [(governing judicial review of decisions of the Provider
       Reimbursement Review Board)] and 5 U.S.C. § 702 [(governing judicial review of agency
       decisions under the Administrative Procedure Act)] because the action arises out of a final
       agency action of the United States Department of Health and Human Services,” Compl. ¶ 5.

                                                    11
of a final agency action of the United States Department of Health and Human Services”). Thus,

§ 405(h) divests the court of subject matter jurisdiction over the plaintiff’s tort claims against

Mutual and WPS.5 Cf. In re Series 7 Broker Qualification Exam Scoring Litig., 548 F.3d 110,

114 (D.C. Cir. 2008) (observing, in the context of the Exchange Act, that “rather than allowing

plaintiffs to sue under common law theories, Congress created a self-contained process to review

and remedy such complaints”).

                2. The Court Denies the Defendants’ Motion to Dismiss the
                Plaintiff’s APA Claim Against the Secretary and Grants the
           Plaintiff’s Motion to Compel Production of the Administrative Record

       The court turns next to the defendants’ motion to dismiss the plaintiff’s APA claim

against the Secretary. The defendants maintain that the Secretary properly concluded that St.

Anthony’s resident caps could not be added to the plaintiff’s resident caps in calculating the

reimbursement due to the plaintiff. Defs.’ Mot. at 11-17. More specifically, the defendants

contend that the Secretary’s decision must be given broad deference, id. at 11-12, and that under

this deferential standard of review the decision was reasonable, id. at 12-15. The defendants also

assert that to the extent the plaintiff argues that it may estop the government based on the advice

given to it by Mutual, the court must reject this argument as a matter of law. Id. at 15-17.

       The plaintiff counters that the Secretary’s decision was arbitrary and capricious and

therefore must be overturned under the APA. Pl.’s Opp’n at 7-12. It first disputes the

defendants’ contention that the court should afford broad deference to the decision, asserting

instead that the Secretary’s conflicting interpretations of the relevant statutory provisions in



5
       As a result, the court need not reach the defendants’ alternative argument that Mutual and WPS
       are immune from the plaintiff’s tort claims. See Defs.’ Mot. at 20-23.

                                                  12
1997, 1998, 2001 and 2002 diminish the degree of deference to which the Secretary’s decision is

entitled. Id. at 7-8. In addition, the plaintiff argues that the Secretary’s decision conflicted with

Congress’s intent. Id. at 8-10. Finally, the plaintiff disputes the defendants’ assertion that the

plaintiff cannot assert equitable estoppel against the government, arguing that the court should

entertain the plaintiff’s estoppel argument against the government and the fiscal intermediaries in

light of the unique facts of this case. Id. at 10-18.

        After the defendants filed their motion to dismiss, the plaintiff filed a motion to compel

production of the administrative record, arguing that it should be permitted to cite to the

administrative record in preparing its opposition to the defendants’ motion to dismiss. See

generally Pl.’s Mot.6 In their opposition to the plaintiff’s motion, the defendants note that they

purposefully did not cite to the administrative record in their motion to dismiss and argue that

“all of Plaintiff’s claims should be dismissed as a matter of law based on the face of the

Complaint, and without reference to extraneous evidence.” Defs.’ Opp’n at 3. In other words,

the defendants assert, “[t]he Court does not need the administrative record to resolve [the issues

raised in the defendant’s motion to dismiss] and, therefore, the Secretary has not yet produced it.”

Id. at 2.

        With respect to the defendants’ motion to dismiss the plaintiff’s tort claims against the

fiscal intermediaries, the defendants are correct that the court can – and should – resolve the


6
        Despite the fact that the plaintiff asserted that it “ha[d] the right to cite to the Administrative
        Record in preparing its response to” the defendants’ motion to dismiss, Pl.’s Mot. ¶ 24, two
        weeks after filing its motion to compel production of the administrative record – before the court
        issued a ruling on the motion – the plaintiff filed an opposition to the defendants’ motion to
        dismiss, see generally Pl.’s Opp’n. The plaintiff did not request that the court permit it to file an
        opposition to the defendants’ motion to dismiss after the court ruled on the plaintiff’s motion to
        compel production of the administrative record.

                                                     13
jurisdictional issues raised in the motion to dismiss at the earliest possible stage. See, e.g., Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (noting “[t]he requirement that

jurisdiction be established as a threshold matter”). As discussed in Part III.B.1 supra, the court

has determined that it lacks subject matter jurisdiction over the plaintiff’s tort claims against the

fiscal intermediaries without reference to the administrative record.

       The same cannot be said, however, of the court’s consideration of the defendants’ motion

to dismiss the plaintiff’s APA claims against the Secretary. For, although the arguments raised in

the defendants’ motion to dismiss are compelling, the court’s task is not simply to determine

whether the Secretary reached the correct result in denying the plaintiff’s request for

reimbursement. Rather, the court must assess whether the Secretary “examined the relevant data

and articulated a satisfactory explanation for its action including a rational connection between

the facts found and the choice made.” Md. Pharm., Inc. v. Drug Enforcement Admin., 133 F.3d

8, 16 (D.C. Cir. 1998) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463

U.S. 29, 43 (1983)). “The requirement that agency action not be arbitrary and capricious

includes a requirement that the agency adequately explain its result.” Appleby v. Harvey, 517 F.

Supp. 2d 253, 260 (D.D.C. 2007) (quoting Dickson v. Sec’y of Def., 68 F.3d 1396, 1404 (D.C.

Cir. 1995)). “The arbitrary and capricious standard . . . ‘mandat[es] that an agency . . . provide an

explanation that will enable the court to evaluate the agency’s rationale at the time of decision.’”

Id. (citing Dickson, 68 F.3d at 1404). Without the administrative record, the court is unable to

perform this function. Cf. Shays v. Fed. Election Comm’n, 414 F.3d 76, 97-100 (D.C. Cir. 2005)

(concluding, based on the administrative record, that the agency had given no rational

justification for its determination and the determination was therefore arbitrary and capricious).


                                                  14
       For this reason, the defendants’ reliance on American Bankers Association v. National

Credit Union Administration, 271 F.3d 262 (D.C. Cir. 2001) is misplaced. In American Bankers

Association, the Circuit concluded that the trial court did not err by not directing the National

Credit Union Administration (“the NCUA”) to produce the administrative record because the

plaintiff’s challenge to the NCUA’s rule “depend[ed] entirely on the argument that the rule itself

violate[d] the statute.” Id. at 267. The Circuit relied on the analogous case of Sierra Club v.

United States Fish & Wildlife Service, 245 F.3d 434 (5th Cir. 2001), in which the Fifth Circuit

concluded that production of the administrative record was not necessary because the Circuit’s

“review [was] limited to interpreting the extent to which the regulation [was] consistent with the

statute.” Id. at 440 n.37. Here, in contrast, viewing the complaint in the light most favorable to

the plaintiff, the plaintiff is challenging not just whether the Secretary’s regulations were

consistent with the statute, but also whether the Secretary’s adjudicatory process was reasonable

and whether the decision was consistent with Congressional intent. See Compl. ¶¶ 81-85. In

other words, the plaintiff is challenging not only the administrative decision, but also the process

that led to that decision. The court is unable to assess the merits of these arguments without

considering the administrative record. See Md. Pharm., Inc. v. Drug Enforcement Admin., 133

F.3d 8, 16 (D.C. Cir. 1998) (directing the court to determine whether the agency “examined the

relevant data and articulated a satisfactory explanation for its action including a rational

connection between the facts found and the choice made”); Dickson v. Sec’y of Def., 68 F.3d

1396, 1404 (D.C. Cir. 1995) (directing the court to assess the agency’s explanation for its

determination). As a result, the court denies the defendants’ motion to dismiss the plaintiffs’

APA claim and grants the plaintiff’s motion to compel production of the administrative record.


                                                 15
                                      IV. CONCLUSION

       For the foregoing reasons, the court grants in part and denies in part the defendants’

motion to dismiss and grants the plaintiff’s motion to compel production of the administrative

record. An Order consistent with this Memorandum Opinion is separately and

contemporaneously issued this 5th day of March, 2010.


                                                      RICARDO M. URBINA
                                                     United States District Judge




                                                16
