26 july 2013 filing by dod in berge vs us

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.

Case 1:10-cv-00373-RBW Document 137 Filed 07/26/13 Page 1 of 11

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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 [email protected] COUNSEL FOR DEFENDANTS


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26 july 2013 filing by dod in berge vs us