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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
__________________________________________ KENNETH BERGE, ET. AL, ) ) Plaintiffs, ) Civil Action No. 10-373 ) (RBW) vs. ) ) UNITED STATES OF AMERICA, ET. AL , ) ) Defendants. ) __________________________________________)
DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR RECONSIDERATION AND/OR CLARIFICATION OF ORDER
INTRODUCTION
On July 26, 2012, this Court entered judgment in this action, granting plaintiffs
summary judgment and enjoining the Department of Defense (“DoD”), through its
TRICARE Management Activity (“TMA”), from denying coverage of Applied Behavior
Analysis (“ABA”) under its basic medical program (“Basic Program”) for Autism
Spectrum Disorders (“ASD”). See Order (Dkt. #120). Upon consideration of
defendants’ motion for reconsideration brought pursuant to Rule 59(e) of the Federal
Rules of Civil Procedure, the Court on June 5, 2013, amended judgment by vacating the
injunction and class certification; instead, this Court remanded the matter to DoD for
further action in light of this Court’s July 26, 2012, opinion. See Mem. Op. (Dkt. #134);
Order (Dkt. #135). This Court denied as moot plaintiffs’ motion to clarify class
certification and relief. See Mem. Op. (Dkt. #134); Order (Dkt. #135). In entering
judgment, this Court did not retain jurisdiction in either of its July 26, 2012, or June 5,
2013, orders.
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Plaintiffs now move for reconsideration of this Court’s reconsideration decision.
Specifically, plaintiffs seek to amend the judgment by having this Court (1) retain
jurisdiction and (2) order DoD to issue a revised benefit determination within 60 days of
the June 5, 2013, order as to whether ABA is covered under the Basic Program. See
Plaintiffs’ Motion and Statement of Authorities in Support of Motion for Reconsideration
and/or Clairification of Order (“Plfs.’ Reconsid.”) (Dkt. #135). Also, although this Court
has entered judgment, plaintiffs ask that this Court clarify that it has not done so for
purposes of any petition by plaintiffs for attorney fees. See id.
Plaintiffs’ motion should be denied. The usual course of action in Administrative
Procedure Act cases is for the district court to not retain jurisdiction upon remand to the
agency, and there is no reason to deviate from that course here. In particular, plaintiffs’
request that the Court interject itself into the Department of Defense’s administration of a
statutorily-mandated pilot program, and order the agency to make a premature benefit
determination before the completion of that pilot program is especially inappropriate as
well as unnecessary. There is no need for the Court’s continuing supervision of DoD’s
action on remand. In particular, until it makes a revised benefit determination, the
agency is continuing to provide coverage for ABA for beneficiaries with ASD within the
confines of its basic medical program, as well as provide other supplemental services.
Accordingly, as set forth further below, the Court should deny plaintiffs’ motion
to amend judgment and retain jurisdiction, and decline to order the agency to make a
revised benefit determination within 60 days of the Court’s June 5, 2013, order.
Likewise, this Court should deny plaintiffs’ request to clarify that plaintiffs may file an
untimely fee petition.
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BACKGROUND
Upon this Court’s order that DoD was enjoined from denying coverage for ABA
under the Basic Program for ASD, DoD immediately took action to comply. See
Supplemental Declaration of Michael O’Bar, July 26, 2013 (“O’Bar Decl.”) (attached) ¶¶
6-11. DoD instructed its contractors on July 27, 2012, orally, and in written
communication on July 30, 2012, to not deny claims for ABA coverage for ASD under
the Basic Program and to hold claims in abeyance until DoD could provide further
clarification. See id. ¶ 7. DoD provided that clarification with interim guidance on
August 10, 2012, that authorized coverage for ABA under the Basic Program so long as
the provision of care for each particular beneficiary was consistent with applicable
guidelines for Basic Program coverage. See id. ¶¶ 8-10.
On January 2, 2013, the President signed the National Defense Authorization Act
for Fiscal Year 2013. Id. ¶ 12. Under this Act, Congress established a one-year pilot
program for DOD to “provide for the treatment of autism spectrum disorders, including
applied behavior analysis, for all TRICARE beneficiaries covered under the basic
TRICARE program.” See Conference Report, Congressional Record, H7134 (December
18, 2012); see also O’Bar Decl. ¶ 13. Based on guidance issued June 25, 2013, which
was subsequently revised, DoD instituted its pilot program effective July 25, 2013, and it
will continue for a year from the date it was instituted. See O’Bar Decl. ¶¶ 16-17, 20.
DoD is continuing to provide coverage for ABA under the Basic Program for
beneficiaries of both active duty and non-active duty service members consistent with the
requirements of the Basic Program and the August 10, 2012, guidance. See id. ¶ 17;
O’Bar Decl. Attachment A (common letter to contractors). Additionally, consistent with
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the August 10, 2012, guidance, under the pre-existing Extended Care Health Option
(ECHO) Autism Demonstration, active duty family members can receive covered ABA
services even when not provided by master-level providers. See id. ¶¶ 10, 17(a). For
non-active duty service members, the pilot program has enabled DoD to expand the
coverage from the August 10, 2012, guidelines to also include care not provided by
master-level providers, as long as it meets certain requirements. See id. ¶ 17(c).
As DoD has previously represented, it will continue to provide for coverage of
ABA under the Basic Program until it makes a revised benefit determination. See
Declaration of Michael W. O’Bar, attached to Defendants’ Opposition to Plaintiffs’
Motion to Clarify Class Certification and Relief (Dkt. #123-1) ¶ 11. DoD has completed
the first major step in making that redetermination by evaluating the recent medical
literature and addressing the concerns identified by this Court in its July 26, 2012,
opinion. See O’Bar Decl. ¶ 18; see also Attachment B to O’Bar Decl. (interim benefit
determination). But DoD is deferring a final benefit decision until completion of the pilot
program, which expires July 24, 2014. See O’Bar Decl. ¶¶ 18, 20. In making a final
determination, DoD will “consider experience under the ABA Pilot, as relevant to the
management of ABA as a TRICARE benefit, and any other pertinent new information to
inform the status of ABA as medical, and if so as to whether it is proven.” See id. ¶ 18.
ARGUMENT
I. Plaintiffs’ Motion for Reconsideration Must Satisfy the Requirements of Rule 59(e) of the Federal Rules of Civil Procedure. Plaintiffs incorrectly assume that Rule 54(b) of the Federal of Civil Procedure
applies to their motion for reconsideration and do not present argument addressing how
their present motion meets a Rule 59(e) standard of review to amend a judgment. See
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Pls.’ Reonsid. at 2 (noting only in the alternative that their motion would satisfy Rule
59(e) requirements that it be “brought within 28 days after entry of judgment”). But this
Court entered judgment on July 26, 2012, see Order (Dkt. #120), and amended that
judgment, pursuant to Rule 59(e), in its June 5, 2013 order, see Order (Dkt. #135). This
Court has resolved all claims, including class certification, which this Court found “is
improper in light of the need to remand this matter.” See id. Thus, consistent with Rule
59(e), plaintiffs must demonstrate that that there “is an ‘intervening change of controlling
law, the availability of new evidence, or the need to correct a clear error or to prevent
manifest injustice.’” See Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir.1996)
(citations omitted).
This Court’s June 5, 2013, cannot be considered, for purposes of Rule 54(b), an
adjudication of “fewer than all the claims.” See Fed. R. Civ. Pr. 54(b). A court’s review
of agency action comes to an end when it remands that matter to the agency. See PPG
Indus., Inc. v. United States, 52 F.3d 363, 365 (D.C. Cir. 1995) (“[W]hen a court
reviewing agency action determines that an agency made an error of law, the court’s
inquiry is at an end: the case must be remanded to the agency for further action consistent
with the corrected legal standards.”). As discussed below, courts typically do not retain
jurisdiction during those remand proceedings.
To the extent that the government is dissatisfied with the decision, it may appeal
the remand order because, otherwise, “a government agency cannot later challenge its
own actions complying with a remand order.” See Sierra Club v. U.S. Dept. of Agric.,
716 F.3d 653, 656-57 (D.C. Cir. 2013). A private party ordinarily may not appeal
because of the “possibility that an appeal may prove unnecessary if the remanded
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proceedings satisfy all parties.” See id. at 656; see also Plfs. Reconsid. at 6 (conflating
whether a plaintiff may appeal a remand order with whether there are any claims left for
the district court to adjudicate). To the extent that plaintiffs are “dissatisfied with the
action on remand” they “may still challenge the remanded proceedings—as well as the
remand order requiring them—after the proceedings are complete.” Id. at 656-57. But,
such a challenge should proceed as a new claim directed at a new agency decision,
raising new factual allegations, and based upon a new administrative record. See, e.g.,
N.L.R.B. v. Wilder Mfg. Co., 454 F.2d 995, 998 (D.C. Cir. 1971) (explaining that use of
the term “remand” signifies a relinquishment of jurisdiction, unless the Court explicitly
retains jurisdiction).
Plaintiffs cannot satisfy any of the Rule 59(e) requirements nor do they even
attempt to argue otherwise. Even if this Court evaluates plaintiffs’ motion under Rule
54(b), this Court should still deny plaintiffs’ motion. As set forth further below, there is
no merit in having this Court retain jurisdiction and manage the remand process. Nor is
there any merit in having this Court excuse plaintiffs from filing a timely fee petition.
II. This Court Should Not Amend Its Judgment To Retain Jurisdiction To Manage The Remand Process. Regardless of whether Rule 59(e) applies here, the Court should reject plaintiffs’
request for the Court to amend its judgment to retain jurisdiction and supervise the
remand process. Contrary to plaintiffs’ assertion, see Plfs.’ Reconsid. at 2-5, 8—10, the
“norm” in APA cases is for a court not to retain jurisdiction after remanding the matter to
the agency for further action. See Baystate Med. Ctr. v. Leavitt, 587 F.Supp.2d 37, 41
(D.D.C. 2008) (citing Burlington Resources, Inc. v. FERC, 513 F.3-d 242, 251 (D.C.
Cir.2008); North Carolina v. EPA, 531 F.3d 896, 929-30 (D.C. Cir.2008); Wedgewood
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Village Pharm. v. DEA, 509 F.3d 541, 553 (D.C. Cir.2007); Environmental Defense Fund
v. EPA, 898 F.2d 183, 190 (D.C.Cir.1990)). A court typically reserves its discretion in
retaining jurisdiction for “cases alleging unreasonable delay of agency action or failure to
comply with a statutory deadline, or for cases involving a history of agency
noncompliance with court orders or resistance to fulfillment of legal duties.” See
Baystate Med. Ctr, 587 F.Supp.2d at 41. None of those are present here.
Even if this Court determined that it should retain jurisdiction, it should deny
plaintiffs’ request to manage the remand process by ordering the agency to file with the
Court a revised benefit determination within 60 days of the Court’s June 5, 2013, order.
See Great Old Broads For Wilderness v. Kempthorne, 462 F.Supp.2d 61, 62-64 (D.D.C.
2006) (denying plaintiffs’ Rule 59(e) request to amend remand order to set deadline for
agency action); Baystate Med. Ctr, 587 F.Supp.2d at 41 (rejecting “request for judicial
management of the remand proceedings” and request for court to “direct completion of
remand proceedings within a reasonable period”); see also id. at 42 (“‘courts are not
charged with general guardianship’” of the “‘complicated tasks of government.’”)
(quoting PPG Indus., Inc. v. United States, 52 F.3d at 365); see also County of Los
Angeles v. Shalala, 192 F.3d 1005, 1011 (D.C. Cir. 1999) (holding, in reversing a district
court, that “[n]ot only was it unnecessary for the [district] court to retain jurisdiction to
devise a specific remedy for the Secretary to follow, but it was error to do so.”).
Plaintiffs’ assertion that DoD seeks to cause unreasonable delay in issuing a new
benefit determination is meritless. Plfs.’ Reconsid. at 2-3. DoD has acted expeditiously
throughout this process. When DoD initially informed the Court it would issue a revised
benefit determination in light of new medical literature, DoD represented that it would
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complete the determination within 90 days. See Dkt. #12-2 (“TMA Reopening of the
Denial of Z.B.’s ABA Claim”). Because of additional information submitted by
plaintiffs, and in the interest of reaching a fully formed determination, DoD represented it
would need limited additional time (November 3, 2010, instead of September 29, 2010)
to make a decision. See Tr. 17:6-18:11 (October 1, 2010). The agency then made a
decision on October 29, 2010. With respect to the Court’s recent remand decision, the
agency has undergone an extensive process in conducting an updated ABA coverage
review and making a revised interim benefit determination. See O’Bar Decl. ¶ 18; see
also Attachment B to O’Bar Decl. (interim benefit determination). Again, DoD has
decided to defer final implementation to take account of further events. Specifically, in
part because of Congressional involvement in constructing a pilot program, and to take
account of other information, the agency has deferred its final determination for a year.
See O’Bar Decl. Decl. ¶ 18. In fact, DoD is demonstrating that it is working within the
confines of a one-year statutory deadline. See id. ¶¶ 13, 20. In the meantime, DoD
continues to provide ABA coverage to all TRICARE-eligible beneficiaries with ASD
under the Basic Program. See id. ¶¶ 17, 19.
The Department of Defense has also complied with court orders throughout this
case in addition to being transparent about its effort to fulfill its legal duties. Although
plaintiffs have taken issue with DoD’s August 10, 2012, interim guidance, DoD has fully
explained its rationale. See Declaration of Michael W. O’Bar, attached to Defendants’
Opposition to Plaintiffs’ Motion to Clarify Class Certification and Relief (Dkt. #123-1)
¶¶ 9-14. And this Court previously declined to interject itself in the inner workings of the
agency’s process. See Mem. Op. (Dkt. #134) at 16 (“disputes like this underscore the
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propriety of remand in this case so that this Court does not ‘become . . . enmeshed in the
minutiae of agency administration’”) (citation omitted).
Similarly, DoD is submitting with this memorandum a declaration explaining its
revised interim guidance. See O’Bar Decl. ¶ 17. In fact, plaintiffs’ motion illustrates
why this Court should not be immersed in the inner workings of the agency: plaintiffs
argue that “DoD spontaneously adopted [on June 25, 2013] a tremendous amount of new
and drastic changes” to its August 10, 2013, interim guidance, see Plfs.’ Reconsid. at 4,
but the Assistant Secretary of Defense for Health Affairs has since clarified the scope of
ABA coverage and now DoD is providing a larger scope of coverage under the pilot
program than it originally did with its August 10, 2012, guidance, see O’Bar Decl. ¶ 17.
These are matters that should be resolved internally within the agency and should not be
determined by the Court in the first instance.
Ultimately, plaintiffs are asking this Court to serve like a special master and
oversee the agency’s remand process. This Court should reject plaintiffs’ request to do
so. The role of overseeing DoD’s basic medical program lies with the Assistant
Secretary of Defense for Health Affairs, and there is no basis for the Court to supervise
his actions during remand.
III. Plaintiffs Misconstrue EAJA’s Definition of Final Judgment. As a final matter, this Court should also reject plaintiffs’ request for the Court to
provide a premature determination as to the deadline for when plaintiffs must file a
timely fee petition under the Equal Access to Justice Act (“EAJA”). See Plfs.’ Reconsid.
at 5-8 (asking for clarification that the time to file a fee petition has not begun to run).1
1 Plaintiffs also make a preliminary argument for why they should be entitled to fees but the government will address that argument in response to a proper fee petition. Whether
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Rather, the deadline for when plaintiffs must file a fee petition is dependent on whether
the government will seek appeal.
“An EAJA application may be filed until 30 days after a judgment becomes ‘not
appealable’— i.e., 30 days after the time for appeal has ended.” See Shalala v. Schaefer,
509 U.S. 292, 302 (1993)) (quoting §§ 2412(d)(1)(B), (d)(2)(G)). Although a remand
order is not normally considered final for purposes of appeal, judgment is considered
final for federal agencies seeking to appeal. See e.g. Sierra Club v. U.S. Dept. of Agric.,
716 F.3d at, 656-57. Should the government decline to appeal in this case, then plaintiffs
would have 30 days following the running of the government’s appeal time to file a fee
petition. See Shalala v. Schaefer, 509 U.S.at at 303 (finding that EAJA fee petition must
be filed within 30 days after the federal government’s appeal time has run). Of course, if
the government does seek an appeal, then the appeal time would not have ended and the
judgment would not be considered “not-appealable.”
Accordingly, to the extent that the government does not seek an appeal, then
plaintiffs must file any fee petition under EAJA within 30 days after the government’s
time for appeal has run, but, to the extent that government does appeal, then plaintiffs
must seek fees within 30 days after the litigation has terminated after such an appeal.
CONCLUSION For the reasons explained herein, this Court should deny plaintiffs’ motion for
reconsideration and clarification.
plaintiffs are entitled to fees is irrelevant for this Court’s disposition as to the timing of when such a petition should be filed.
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Dated: July 26, 2013 Respectfully submitted, STUART F. DELERY Acting Assistant Attorney General RONALD C. MACHEN JR.
United States Attorney for the District of Columbia
ANTHONY J. COPPOLINO Deputy Director, Federal Programs Branch
_/s/_______________________________ ADAM D. KIRSCHNER
Trial Attorney U.S. Department of Justice
Civil Division, Federal Programs Branch Mailing Address
P.O. Box 883 Washington, D.C., 20044 Delivery Address 20 Massachusetts Ave., NW., Room 7126 Washington, DC 20001 Telephone: (202) 353-9265 Fax: (202) 616-8470 Adam.Kirschner@usdoj.gov COUNSEL FOR DEFENDANTS
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