RULING ON MOTION TO STRIKE
Thе background of this administrative appeal is described at length in the Court’s Opinion of August 31, 2001, in which the Court denied the Secretary’s motion to dismiss this appeal on collateral estoppel grounds.
See Yale-New Haven Hospital, Inc. v. Thompson,
Discussion
Yale argues that the three declarations at issue were not part of the administrative record and, therefore, are not properly before this Court in this appeal of a final adverse decision of the Secretary. Defendant responds that these declarations should be considered because they address new legal arguments raised by Yale for the first time on appeal. Because this Court adjudicates questions of law de novo, defendant argues that these declarаtions are judicially cognizable apart from the administrative record. Further, defendant states that the declarations do not address facts presented during the administrative hearings nor do they attempt to support the Secretary’s findings of fact. Yale retorts that the arguments raised herein are not new and that the declarations are merely an attempt by the Secretary to bolster evidence already in the record.
We agree with Yale that the three declarations submitted by defendant, which are not part of the administrative record on appeal, must be stricken. A more problematic question, however, is whether defendant’s briefs and statement of facts must also be stricken in their entirety, thus significantly delaying resolution of this administrative appeal.
This appeal of a final adverse decision of the Secretary of Health and Human Services is brought pursuant the Medicare Act, 42 U.S.C. § 1395ff(b), which provides:
Any individual dissatisfied with any determination under subsection (a) of this section ... shаll be entitled ... to judicial review of the Secretary’s final decision after such hearing as is provided in section 4.05(g) of this title. 1
42 U.S.C. § 1395ff(b)(l) (emphasis added); see Am. Comp. ¶¶ 40, 54. The cross-referenced § 405(g) 2 provides in relevant part that a reviewing court
*185 shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive ....
42 U.S.C. § 405(g) (emphasis added). Thus, the scope of this Court’s review is limited to the pleadings and transcripts from the administrative proceedings, including all evidence considered by the Administrative Law Judge (“ALJ”).
See Mathews v. Weber,
It is undisputed in the instant case that the three declarations at issue were never submitted to the ALJ or to the Appeals Council and are not part of the administrative record before this Court for purposes of this appeal. Therefore, these declarations cannot be considered by this Court in its review of the record as a whole. Simply put, they are not part of the record.
The only evidence
not
presented to the ALJ or Appeals Council below, which this Court may consider, is “material evidence” that for “good cause” shown was not presented at the administrative level. 42 U.S.C. § 405(g);
Goodrich,
Assuming arguendo that the information set forth in these declarations is new, noncumulative, and material, the Court finds that defendant has not demonstrated good cause for its failure to submit these declarations at the administrative level.
The 2001 Streimer Declaration
The declaration of Robert A. Streimer, Deputy Director of the Office of Clinical Standards and Quality in the Centers for Medicare and Medicaid Services, formerly the Health Care Financing Administration (“HCFA”), within the Department of Health and Human Services (“HHS”), is dated Dеcember 19, 2001, long after the Secretary’s final decision in these cases. Streimer states that he has been employed by HHS in the Medicare program since 1967 and that he was the person responsible for the development of the Medicаre provider payment and coverage rules for *186 the agency. Defendant does not claim that Streimer was somehow unavailable to the agency during the administrative proceedings. In fact, defendant offers no explanation for nоt presenting this testimony during the administrative process, other than its claim that Yale has raised new legal issues on appeal which were not considered during the administrative proceedings.
Defendant’s own papers protesting the ALJ’s decision, however, belie this assertion. For example, in its protest filed July 18, 1996, defendant argued that the Manual provision was a valid interpretive rule that did not effect a change in Medicare’s
long-standing policy
of not covering procedures or items that were expеrimental or investigational.
3
Although this Court grants Yale’s motion to strike the Streimer declaration, the Court would note that this does not necessarily preclude consideration of the issues addressed by Streimer. Many of the “statements” by Streimer, ostensibly based on his personal knowledge, are not statements of fact at all. Rather, they are legal arguments based on the legislative history of the Medicare Act, regulatory history taken from the Federal Register, and conclusions drawn from Intermediаry Letters which are referenced in defendant’s protest of the ALJ’s decision. Although defendant may not rely on facts that are not part of the record, defendant may certainly cite to the Act’s legislative history, the regulations, the Federal Register, and other matters of which this Court may take judicial notice, without the need to resort to personal affidavits and declarations.
The 1995 Hoyer Declaration
In paragraph 3 of his declaration, Streimer adopts and reaffirms the declaration of Thomas E. Hoyer, Direсtor, Office of Chronic Care and Insurance Policy, Bureau of Policy Development, Health Care Financing Administration dated October 30, 1995, which was offered in the
Cedars-Sinai
litigation and referenced by Judge Davies in his summary judgment opinion.
Cedars-Sinai,
As of 1995, Hoyer had been employed by HCFA for 23 years. No explanation is offered for defendant’s failing to present his testimony during the administrative proceedings, except that, as noted above, *187 Yale has allegedly raised new legal arguments on appeal, and the fact that Yale was a party to the Cedars-Sinai litigation.
The first argument has already been addressed. As to the second point, the fact that Yale was a party to other federal cоurt litigation in which this affidavit was offered is irrelevant to this Court’s review of the findings of the ALJ and Appeals Council with respect to these specific 49 cases. Indeed, to take defendant’s argument to its logical extreme would allow the parties to intrоduce any and all evidence from the Cedars-Sinai litigation, in effect, allowing the parties to relitigate the issues that were already decided by that Court. That is not the proper role of this Court with respect to this appeal.
Had defendant determinеd that the 1995 Hoyer declaration was necessary to protest the ALJ’s findings, which relied on Judge Davies’ decision, defendant could have offered this affidavit and it would have become part of the administrative record. This it did not do. Because the Hoyer affidavit is not part of the administrative record on appeal, it will not be considered by this Court.
However, like Streimer, Hoyer attests to Congressional intent in enacting the Medicare Act, he raises legal arguments based upon the language of the Act, and he refers to notices in the Federal Register. Many of the matters addressed by his affidavit are legal arguments or matters as to which the Court may take judicial notice and do not require testimony by an agency official.
The 1998 Ruiz Declaration
The Streimer declaration, paragraph 3, also adopts the declaration of Linda A. Ruiz, Director of the Program Integrity Group within HCFA, dated May 1, 1998, •which was also filed in the Cedars-Sinai litigation, presumably on remand. Her declaration addresses the manner in which fiscal intermediaries process Medicare claims. Again, this affidavit was never presented to the ALJ or the Appeals Council for their consideration during the administrative hearings and will not be considered by this Court for the first time on appeal. No good causе has been shown which would warrant a remand. Accordingly, this declaration will also be stricken.
As noted above, a more problematic aspect of Yale’s motion is whether it is necessary for this Court to strike defendant’s brief and statements of fact. After a careful review of the parties’ submissions, the Court reluctantly concludes that rebriefing is necessary because of the extensive references to these affidavits throughout defendant’s brief and statements of fact. Thus, Defendant’s Combined Memorandum of Law in Support of Defendant’s Motion for Summary Judgment, and in Opposition to Plaintiffs’ Motion for Summary Judgment [Doc. # 41], the Declaration of Robert Streimer (including the two attached declarations) [Doc. #43], Defendant’s Local Rule 9(c)l Statement [Doc. #45], and Defendant’s Local Rule 9(c)2 Statement and Response to Plaintiffs’ Local Rule 9(c)l Statement [Doc. #44] are stricken. Defendant’s Motion for Summary Judgment [Doc. #40] need not be stricken.
Defendant shall have 45 days from the date of this ruling to file an amended brief in support of its motion for summary judgment and in opposition to plaintiffs’ motion for summary judgment. Plaintiffs shall then have 30 days to respond. Defendant will then have 20 days to file a reply brief to plaintiffs’ opposition.
Accordingly, Yale’s Motion to Strike [Doc. # 46] is GRANTED such that Documents ## 41, 43, 44, and 45 are stricken. Document #40, however, is not stricken. The parties shall submit new briefs in *188 accordance with the schedule set forth above.
SO ORDERED.
Notes
. This standard of review is distinguishable from that applicable to provider appeals brought under 42 U.S.C. § 1395oo(f)(l), which incorporates the Administrative Procеdure Act (“APA”), 5 U.S.C. § 706(a).
See Estate of Morris v. Shalala,
. All section numbers used in this opinion are those used in the United States Code, Title 42, *185 rather than the original section numbers of the Medicare Act.
. This was in response to the ALJ's finding persuasive the holding of District Judge Davies in
Cedars-Sinai Medical Center v. Shalala,
. The Administrative Record (“A.R.”), which contains 50 volumes, will be referenced by volume and page number. The entire Administrative Record was sealed by agrеement of the parties [Doc. # 32] to protect the confidentiality of the patients’ medical records. No references are made to the individual patients or their medical records in this decision, and, therefore, this decision is not being sealed.