The opinion of the court was delivered by: OBERDORFER
The Deficit Reduction Act of 1984, Pub. L. No. 98-369, § 2315(h), 98 Stat. 494, 1080 (hereinafter "the Act"), provides that:
The Secretary of Health and Human Services shall, prior to December 31, 1984 --
(1) develop and publish a definition of "hospitals that serve a significantly disproportionate number of patients who have low income or are entitled to benefits under part A" of Title XVIII of the Social Security Act for purposes of section 1886(d)(5)(C)(i) of that Act, and
(2) identify those hospitals which meet such definition and make such identity available to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate.
Id. (emphasis added) (quoting 42 U.S.C. § 1395ww(d)(5)(C)(i)).
On July 12, 1985, this Court entered an order declaring, among other things, that the Act imposed upon defendant a clear, nondiscretionary duty to develop and publish a definition of "disproportionate share hospitals" and to identify eligible hospitals to the House Ways and Means Committee and to the Senate Finance Committee. That order directed the defendant to submit a plan and timetable for the development of the definition and for identifying the hospitals which meet the definition. Defendant submitted a plan, which proposed the filing of the definition by June 15, 1986 -- 17 1/2 months after the December 31, 1984 deadline fixed by Congress in the Act. This plan was based on the assumption that compliance with the Act would require extensive research. The plaintiffs challenged the plan as inconsistent with the command of the Act and on August 29, 1985 the Court supplemented the July 12 order with a further order which provided that:
the Secretary shall develop and publish a definition of disproportionate share hospitals and identify those hospitals to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate, as required by section 2315(h) of the Deficit Reduction Act of 1984 . . . .
Both parties appealed these orders, but sought no stay of them in this Court or in the Court of Appeals. On May 16, 1986, the Court of Appeals issued an order granting the joint motion to dismiss the cross-appeals. Samaritan Health Center v. Bowen, 258 U.S. App. D.C. 335, 811 F.2d 1524, Nos. 85-5998 and 85-6086 (D.C. Cir. 1986).
Meanwhile, on December 31, 1985, the Secretary published a notice in the Federal Register which stated and explained definitions of (1) hospitals that serve a significantly disproportionate share of low income patients and (2) those that serve a significantly disproportionate share of Medicare Part A beneficiaries. 50 Fed. Reg. 53398 (1985). In addition, the notice recited that defendant was forwarding to the appropriate congressional committees a list identifying the hospitals that "based on currently available data meet these definitions." Id. at 53399.
The notice acknowledged that "Congress required the Secretary . . . to develop and publish a definition . . . [and to] provide a list." However, the notice conspicuously failed to mention the fact that Congress required that the definition and list be prepared "prior to December 31, 1984." Also, the notice was laced with self-serving representations such as that "we believe further analysis is necessary to produce a reasonable definition and to determine whether an adjustment is warranted."
In addition, the notice represented that "we are currently in the process of gathering the data for this analysis." Id. The notice followed this representation with a statement that attributed the December 31, 1985 filing date solely to the Court:
On August 29, 1985, the United States District Court for the District of Columbia in Samaritan Health Center, et al. v. Heckler (Civil Action No. 85-0464) ordered the Secretary to develop and publish a definition of disproportionate share hospitals and to identify those hospitals to the Committee on Ways and Means of the House of ...