949 F. Supp. 2d 36
D.D.C.2013Background
- K Berge sued the United States, challenging TRICARE Basic Program denial of ABA therapy for autism as arbitrary, capricious under the APA.
- The case proceeded with class action status for beneficiaries who would qualify under the Basic Program.
- The court previously granted summary judgment for plaintiffs and enjoined defendants from denying ABA coverage under Basic Program.
- The court later granted class certification and addressed post-judgment relief requests from plaintiffs and remand requests from defendants.
- Congress later enacted a pilot program (2013 NDAA) directing a study of autism treatment, including ABA, and related reporting obligations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Remand vs. maintain injunction | Berge argued remand is necessary to cure legal errors. | Defendants urged remand is unnecessary formality. | Remand is appropriate to correct legal errors. |
| Whether ABA is covered under Basic Program after remand | ABA should be covered under Basic Program if proven medically/psychologically necessary. | Agency may determine coverage on remand under applicable standards. | Remand needed for Agency to reconsider coverage consistent with legal standards. |
| Inconsistency between ECHO and Basic Program coverage | Inconsistency suggested improperly different treatment implying a preordained conclusion. | No real inconsistency; ECHO discretionary coverage not binding Basic Program. | Inconsistency ruling reversed; remand proper for reconsideration. |
| Class certification status on remand | Certification should stand despite remand. | Remand requires vacating class certification. | Vacate class certification; moot relief on reconsideration. |
Key Cases Cited
- Palisades Gen. Hosp., Inc. v. Leavitt, 426 F.3d 400 (D.C. Cir. 2005) (remand required when agency error found, unless narrow exception)
- Cnty. of Los Angeles v. Shalala, 192 F.3d 1005 (D.C. Cir. 1999) (agency action review; remand when records insufficient)
- N. Air Cargo v. U.S. Postal Serv., 674 F.3d 852 (D.C. Cir. 2012) (remand guidance when outcome not certain)
- A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484 (D.C. Cir. 1995) (narrow remand exception where outcome preordained)
- FEC v. Legi-Tech, Inc., 75 F.3d 704 (D.C. Cir. 1996) (remand where judicial review shows need for agency action)
- Ethyl Corp. v. Browner, 989 F.2d 520 (D.C. Cir. 1993) (agency reconsideration encouraged to correct mistakes)
- Telecommunications Research & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (remand/compel action context)
- Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001) (remand principles in agency action challenges)