Berge v. United States of AmericaBerge v. United States of America
be correct that the hiring process was somewhat irregular, she has not pled facts suggesting that she was not hired because of her race, sex, color, or age. Accordingly, the Court must dismiss the plaintiff‘s Title VII claim.
IV. CONCLUSION
For the foregoing reasons, the Court grants the defendants’ amended motion to dismiss.
SO ORDERED this 7th day of March, 2013.12
Adam D. Kirschner, U.S. Department of Justice, Washington, DC, for Defendants.
REGGIE B. WALTON, District Judge.
The named plaintiffs, Kenneth and Dawn Berge, bring this class action on behalf of themselves, their minor child Z.B., and all others similarly situated, against the defendants, the United States of America, the Department of Defense (“the Agency“), TRICARE Management Activity, and Chuck Hagel, United States Secretary of Defense,1 alleging that the defendants’ denial of coverage for Applied Behavioral Analysis (“ABA“) therapy under the TRICARE Basic Program is “arbitrary, capricious, and contrary to law and regulation” in violation of the Administrative Procedure Act (“APA“),
I. BACKGROUND
This case arises from the Agency‘s determination that ABA therapy, a form of treatment for autism spectrum disorder (“autism“), is not a covered benefit under the TRICARE Basic Program, see Am. Compl. ¶¶ 5, 10, a program “similar to private insurance,” which provides financial assistance to active duty and retired members of the armed forces for “certain prescribed medical care,”
Coverage of “[u]nproven drugs, devices, and medical treatments or procedures ... the safety and efficacy of which ha[s] not been established” is also excluded from the Basic Program.
While not covered under TRICARE‘S Basic Program, ABA therapy has been covered under the Extended Care Health Option (“ECHO“) Program, Am. Compl. ¶ 22, a “supplemental program to the TRICARE Basic Program,”
The Agency advanced two reasons for its decision that ABA therapy could not be covered under the Basic Program. See A.R. at 9-10. First, the Agency found that coverage was prohibited because “ABA is not medically or psychologically necessary and appropriate medical care for [autism] and that the reliable evidence reviewed indicates that ABA is an educational intervention and does not meet the TRICARE definition of medical care.”
On July 26, 2012, this Court granted summary judgment to the plaintiffs, finding that the Agency‘s denial of coverage for ABA therapy under the Basic Program was arbitrary and capricious. Berge, 879 F.Supp.2d at 136. The Court found fault with the Agency‘s first rationale for concluding that ABA therapy could not be covered under the Basic Program, which was based on the Agency‘s consideration of “reliable evidence” in its determination that ABA therapy is not a “medically or psychologically necessary” treatment or “appropriate medical care” for autism, because the Agency‘s regulations do not require that “reliable evidence” support its determination of whether a service meets these definitions, and therefore, “the Agency‘s decision was not based on consideration of the ‘relevant factors.‘” Id. at 118 (citation omitted). Moreover, the Court held that even if the Agency could show that it had considered the relevant factors in reaching its decision, it failed to satisfactorily articulate how its conclusion that the educational components of ABA therapy foreclosed consideration of ABA as a medical treatment was rationally related to the evidence before it in light of the statute‘s purpose, which is to “create and maintain high morale in the uniformed services by providing an improved and uniform program of medical and dental care for members and certain former members of those services, and for their dependents.” Id. at 118-19, 124 (citation omitted).
With respect to the Agency‘s second rationale, the Court found that the Agency‘s determination that ABA therapy is “unproven” under
ment
The plaintiffs subsequently requested that the Court clarify the composition of the class certified by the Court and for other relief related to the class. Pls.’ Mot. at 1. The defendants have requested that the Court reconsider its decision not to remand the matter to the Agency for further action consistent with the Court‘s opinion. Defs.’ Mot. at 1-2.
While these motions were pending before the Court, Congress enacted the National Defense Authorization Act for Fiscal Year 2013, which contained a provision directing the Secretary of Defense to “conduct a pilot program to provide for the treatment of autism spectrum disorders, including applied behavior analysis,” within ninety days of its enactment on January 2, 2013, continuing for no longer than one year. Pub. L. No. 112-239, § 705, 126 Stat. 1632, 1800 (2013)(to be codified at
II. MOTION FOR RECONSIDERATION
The standard for modification of a judgment pursuant to
The defendants request the Court‘s reconsideration of only one issue: the Court‘s decision to issue an injunction requiring the Agency to provide coverage for ABA therapy to Basic Program beneficiaries rather than remanding the matter to the Agency for its reconsideration in light of the Court‘s opinion. Defs.’ Mot. at 1-2. The Court acknowledged in its opinion that “settled principles of administrative law” require that once a district court has determined that an agency made an error, the district court must generally remand the matter to the agency for further action. Berge, 879 F.Supp.2d at 135 (quoting Palisades Gen. Hosp. Inc. v. Leavitt, 426 F.3d 400, 403 (D.C.Cir.2005)). The Court found, however, that “[a]lthough most of the Court‘s concerns could potentially be cured by affording the Agency further opportunity to explain its actions, the Agency‘s policy that ABA treatment is proven for the purpose of the ECHO program, but not for the Basic Program, cannot,” and that “because of this finding, ‘remand to the [A]gency for further review is an unnecessary formality.‘” Id. (emphasis added) (quoting FEC v. Legi-Tech, Inc., 75 F.3d 704, 709 (D.C.Cir.1996)). After renewed reflection, the Court agrees that it committed “clear error” in its ruling that remand to the Agency was an “unnecessary formality,” and that the Court should have remanded the case to the Agency for further action.
A district court‘s role in reviewing a final agency action is “[u]nlike managing a garden variety civil suit,” because the court “does not perform its normal role, but instead sits as an appellate tribunal.” Palisades Gen. Hosp. Inc., 426 F.3d at 403 (citation and quotation marks omitted). Consequently, “under settled principles of administrative law, when 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 correct legal standards.” Id. (citation and quotation marks omitted); Cnty. of Los Angeles v. Shalala, 192 F.3d 1005, 1011 (D.C.Cir.1999); see also N. Air Cargo v. U.S. Postal Serv., 674 F.3d 852, 861 (D.C.Cir.2012) (“When a district court reverses agency action and determines that the agency acted unlawfully, ordinarily the appropriate course is simply to identify a legal error and then remand to the agency, because the role of the district court in such situations is to act as an appellate tribunal.“). Indeed, the district court must remand the matter to the agency “[i]f the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it.” Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). The district court “ha[s] no jurisdiction to order specific relief.” Palisades Gen. Hosp. Inc., 426 F.3d at 403 (holding that the district court did not have jurisdiction to order the plaintiff hospital‘s reclassification after finding that the agency erred in rejecting data submitted in support of the reclassification); see also Cnty. of Los Angeles, 192 F.3d at 1011 (holding that it was error for the district court to fashion a remedy for the agency to follow after declaring agency action unlawful).
This Circuit recognizes a narrow exception to this general rule in cases where “[t]here is not the slightest uncertainty as to the outcome of a[n] [agency] proceeding.” A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484, 1489 (D.C.Cir.1995). In this small subset of administrative law cases, “remand to the agency is an unnecessary formality” because “it is virtually
The Court now concludes that this case does not fall within the purview of this uncommon exception. The Court‘s prior ruling that remand was an “unnecessary formality” was premised on the conclusion that the Agency‘s coverage of ABA therapy under the ECHO Program indicated that it had either explicitly or implicitly found that ABA therapy was a proven treatment under
The plaintiffs nonetheless contend that the Court‘s conclusion was correct because even if the Agency did not consider ABA therapy to be a “medical treatment[ ],” it must be considered a “therapeutic procedure,” subject to the same exclusion for unproven status under
The plaintiffs also point to a previous coverage determination under the ECHO Program approving ABA therapy as a “medically necessary” service as indicative of the Agency‘s implicit determination that ABA therapy is a proven treatment. See Pls.’ Opp‘n at 9. Inconsistent determinations counsel in favor of remand to the agency for further explanation or reconsideration, rather than deviating from the general practice of remand in administrative law cases. See AT & T Inc. v. FCC, 452 F.3d 830, 839 (D.C.Cir.2006) (remanding the case to the FCC to either explain the alleged inconsistency or to reconsider the matter upon finding that the agency‘s use of two terms in an earlier order and two notices of proposed rulemaking differed from the application at issue); see also Local 32, Am. Fed‘n of Gov‘t Emps., AFL-CIO v. Fed. Labor Relations Auth., 774 F.2d 498, 504–05 (D.C.Cir.1985).4
Without the purported inconsistency between covering ABA therapy under the ECHO Program while denying coverage under the Basic Program, the Court discerns no circumstances excepting this case from the general rule of “remand[] to the agency for further action consistent with the correct legal standards.” Palisades Gen. Hosp. Inc., 426 F.3d at 403. The outcome of the administrative process on remand is far from certain; the errors identified by the Court relate to the Agency‘s failure to consider the relevant factors and to satisfactorily explain how its decision is rationally related to the evidence before it in light of all of the relevant considerations. See Berge, 879 F.Supp.2d at 118 (the Agency erred in applying the “reliable evidence” standard to its determination of whether ABA therapy was “medically or psychologically necessary” or “appropriate medical care“); id. at 118-19 (the Agency failed to satisfactorily explain how its determination that ABA was educational rather than medical was rationally related to the evidence before it); id. at 127-28 (the Agency failed to adequately explain why certain materials were not considered to be reliable evidence); id. at 132-34 (the Agency failed to give proper consideration to the statutory purpose);
id. at 134-35 (the Agency did not properly apply its own regulations requiring a comparison of a contested treatment to “the standard means of treatment“). All of these errors could potentially be cured by the Agency‘s reconsideration of the issue on remand in accordance with the Court‘s findings. Indeed, the Court acknowledged as much in its opinion, noting that “most of the Court‘s concerns could potentially be cured by affording the Agency further opportunity to explain its actions.” Id. at 135. Upon reexamining the issue in accordance with the principles set forth in the Court‘s earlier opinion, the Agency may determine that ABA therapy must be covered under the Basic Program.
The Court‘s reasoning, however, does not render the Agency with “only one rational course” to follow upon remand, and it is conceivable that the Agency could, after considering all relevant factors, satisfactorily articulate how the same decision is rationally related to the evidence before it, particularly in light of the fact that the Agency‘s reconsideration will take into account new literature published since the Agency last considered the matter. See Defs.’ Reply at 7. And perhaps most importantly, as the defendants point out, even if the Agency were to find that ABA therapy constitutes “medical” care and that it is a proven treatment, there are additional statutory and regulatory determinations that must be made in order to determine whether ABA therapy is a covered benefit under the Basic Program. See Defs.’ Reply at 7 (citing
The plaintiffs resist this conclusion by arguing that remand is inappropriate because the Agency has already had “two ‘bites at the apple,‘” Pls.’ Opp‘n at 19, and is “not entitled to repeated, entirely duplicative remand opportunities in order to keep coming up with new reasons for denying coverage,” id. at 26. The Court appreciates the plaintiffs’ desire for expeditious resolution of this case because “time is of the essence for children with autism,” id. at 5, but the plaintiffs’ argument on this point simply does not represent the law of this Circuit, see, e.g., N. Air Cargo, 674 F.3d at 861.5 The cases cited
The plaintiffs’ suggestion that the defendants’ motion is “a clear attempt to abuse the remand process” and made in bad faith is also unpersuasive. Pls.’ Opp‘n at 2-4. The plaintiffs assert that the defendants’ desire for remand “appears to be motivated by the desire to develop new rationales for denying the ABA therapy to which TRICARE beneficiaries with autism are entitled,” but they offer no evidence to support this allegation. Id. at 3. Indeed, the plaintiffs’ contention appears to be based primarily on the fact that the Agency‘s two prior determinations were adverse to them. Id. at 3-4. However, prior unfavorable determinations alone simply do not give rise to an inference of bad faith. Cf. Oceana, Inc. v. Locke, 674 F.Supp.2d 39, 45 (D.D.C.2009) (“the mere fact of [a] decision [exercised for procedural reasons], without any specific allegations of impropriety,” is insufficient to show bad faith as the basis to supplement administrative record). The plaintiffs also allege that the Agency has not complied with the Court‘s injunction because it has adopted reimbursement procedures that “emasculate this Court‘s ruling and injunction” by restricting the type of provider authorized to provide ABA therapy under the Basic Program. Pls.’ Opp‘n at 3. The defendants contend that they are “in full compliance” with the Court‘s injunction and are offering ABA therapy under the Basic Program in accordance with the Basic Program‘s more stringent regulations for service providers. Defs.’ Opp‘n at 3-5. Again, the plaintiffs’ dissatisfaction with the Agency‘s decisions does not demonstrate that the Agency is acting in bad faith. Furthermore, disputes like this underscore the propriety of remand in this case so that
The point pressed most vigorously by the plaintiffs in support of maintaining the Court‘s injunction is that vacating the injunction would harm the Basic Program beneficiaries who are currently receiving ABA therapy under the Basic Program and cause further delay in reaching a final resolution of the matter at issue. Pls.’ Opp‘n at 21-23. As an initial matter, children currently receiving services pursuant to the Court‘s injunction will suffer no harm from the delay created by remand because the Agency has represented that “it will continue to provide for ABA services, under the interim guidance it issued to be in compliance with this Court‘s Order, until it has had a chance for further investigation or explanation or unless this judgment is reversed on appeal.” Defs.’ Reply at 2; see Defs.’ Reply, Exhibit (“Ex.“) 1 (Supplemental Declaration of Michael W. O‘Bar (O‘Bar Decl.)) ¶ 11. The Court will take the Agency at its word. See Wheaton College v. Sebelius, 703 F.3d 551, 552-53 (D.C.Cir.2012) (accepting government counsel‘s representations regarding agency‘s future conduct).
The plaintiffs nonetheless contend that delay will cause them harm because “the prospect of further delay after the Agency has already had two bites at the apple will ‘sap public [and military families‘] confidence in the agency‘s ability to discharge its responsibilities and create[] uncertainty for the parties,‘” Pls.’ Opp‘n at 22 (quoting Cutler v. Hayes, 818 F.2d 879, 896 (D.C.Cir.1987)), which the plaintiffs contend is particularly troubling in light of the statutory purpose to “create and maintain high morale in the uniformed services,” id. (quoting Berge, 879 F.Supp.2d at 119). The plaintiffs’ reliance on Cutler is misplaced because, as in Telecommunications Research and Action Center and Cobell, the delay complained of in those cases was the agency‘s long-time failure to act in the first instance. Cutler, 818 F.2d at 885-86. Even as a general principle, the plaintiffs’ argument must be rejected. The fact that remanding this matter to the Agency will result in longer delay does not confer jurisdiction upon this Court to do what the Circuit has held it cannot do: order specific relief that deprives an agency of the ability to reconsider the matter in light of the Court‘s decision. See Palisades Gen. Hosp., Inc., 426 F.3d at 403 (holding that the district court did not have jurisdiction to order the plaintiff hospital‘s reclassification after finding that the agency erred in rejecting data submitted in support of the reclassification).6
Having determined that remand is the appropriate course of action here, the Court would ordinarily turn to an analysis of whether the Agency‘s determination should be vacated or remain in place upon remand. See N. Air Cargo, 674 F.3d at 860-61. However, the Court need not undertake this analysis in light of the Agency‘s voluntary vacatur of its previous determination while it reconsiders the issue
B. Prior Ruling Regarding Inconsistency of Coverage Under the ECHO Program
In light of the Court‘s determination that it erred in concluding that the Agency had found ABA therapy to be a proven treatment by virtue of its coverage under the ECHO Program, the Court must also conclude that it committed clear error by holding that the Agency‘s decision to extend coverage under the ECHO Program while withholding coverage under the Basic Program was arbitrary and capricious.7 In its earlier opinion, the Court concluded that “there is no apparent rational justification” for the Agency‘s decision to provide coverage for ABA therapy under the ECHO Program pursuant to
Without this purported “inconsistency,” however, the Court‘s conclusion is simply bereft of support. The Court held that the Agency‘s “decision to enforce its stringent regulatory standards to withhold ABA therapy coverage under the Basic Program, while exercising its statutorily-granted discretion to extend ABA therapy coverage under ECHO” constituted a “two prong regulatory scheme” for which the Agency had failed to provide a satisfactory explanation. Berge, 879 F.Supp.2d at 132. The Court agreed that the Agency may properly provide coverage for ABA therapy under the ECHO Program in its discretion, id. at 130-31, and the Agency has, in effect, explained “why it chose to create this two prong regulatory scheme” in its denial of coverage under the Basic Program—the Agency determined that ABA therapy could not be covered under the Basic Program regulations. This explanation is deficient for the reasons identified by the Court in its earlier opinion, which remain undisturbed. The Agency must therefore address the errors identified by the Court in its determination that ABA therapy is not a covered benefit under the Basic Program, but it need not address the “inconsistency” of providing coverage under ECHO while denying it under the Basic Program because no inconsistency, in fact, exists.8 Accordingly, the Court
C. Class Certification
Following issuance of the Court‘s earlier opinion in this case, the plaintiffs moved for various relief relating to the Court‘s class certification. See Pls.’ Mot. at 1. Although most of the requested relief is now moot in light of the Court‘s resolution of the defendants’ motion, one point must be addressed. The plaintiffs request an order “stating that all of the requisite elements of
III. CONCLUSION
Any delay in bringing the dispute in this case to final resolution is regrettable, considering the importance of the matter to those who have served this nation through military service. Errors, however, are not uncommon in our legal system, and in fact are expected, which is why motions for reconsideration and appellate review have been integrated into our legal process. And judges must have the integrity to acknowledge and accept their mistakes if justice, rather than pride, is the controlling factor in our sometimes failed efforts to adhere to the rule of law. Moreover, the Court hopes that a final resolution to this matter will be hastened by Congress’ recent directive to the Agency to consider if coverage of ABA therapy under the Basic Program may be permitted.
Accordingly, the Defendants’ Motion to Amend Judgment must be granted. The injunction previously issued by this Court is therefore vacated, the matter is remand-
ed
SO ORDERED this 5th day of June, 2013.9
Kenneth JONES, Plaintiff, v. UNITED STATES of America, et al., Defendants.
Civil Action No. 12-1546 (RJL).
United States District Court, District of Columbia.
June 5, 2013.