United States District Court, District of Columbia
MEMORANDUM OPINION 
F. HOGAN SENIOR UNITED STATES DISTRICT JUDGE.
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]. Plaintiffs filed a reply to the Secretary's
opposition to their motion for summary judgment. [ECF No.
30], They also filed an identical opposition to the
Secretary's cross motion for summary judgment [ECF No.
29], to which 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 complaints. 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 I of both complaints shall be denied. The
Secretary's cross motion for summary judgment as to
Counts II-V of both complaints shall be denied as moot.
Court incorporates the following excerpt from its 2016
decision Loma Linda Univ. Kidney Ctr. v. Burwell,
185 F.Supp.3d 196 (D.D.C. 2016) ("Loma Linda
II"), which describes this case's rather
lengthy procedural history:
This case stems from the Department of Health 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.
§ 1395rr(b)(7) (providing that "[e]ach application
... 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 1395rr(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 November 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 judgment, 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. Kidney
Ctr. v. Sebelius, Civ. Nos. 06-1926 & 06-1927, 2011 WL
13063635, at *1, *10 (D.D.C. Jan. 28, 2011) ("Loma
Linda F). In granting partial summary judgment in favor
of the Secretary, this Court upheld the Administrator's
interpretation of 42 U.S.C. § 1395rr(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. Natural Res. Def. Council,
Inc., 467 U.S. 837 (1984). Loma Linda I, 2011
WL 13063635, at *2-3The 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] [are] 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 of plaintiffs'
applications, the Court concluded that "the
Administrator's decision[s] [are] arbitrary and
capricious and a remand is necessary ... for a determination
on the merits of Plaintiffs' applications [.]"
Id. at *4, *10.
Plaintiffs attempted to appeal this Court's January 28,
2011 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
of the remand order as well as any district court ruling made
after the remand." Sept. 14, 2011 Mandate of United
States Court of Appeals [Civ. No. 06-1926, ECF No. 59; Civ.
No. 06-1927, 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.
October 19, 2015, plaintiffs again sought judicial review
under the APA. Compl., Oct. 19, 2015, Loma Linda Univ.
Kidney Ctr. v. Burwell, 15-CV-01717 [ECF No. 1]; Compl.,
Oct. 19, 2015, Loma Linda Univ. Med. Ctr. v.
Burwell, 15-cv-01721 [ECF No. 1]. The Court consolidated
the cases under case number 15-cv-01717 on March 3, 2016. On
March 17, 2016, plaintiffs sought leave to conduct discovery
related to the date CMS ...