United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 7, 2010 Decided June 24, 2011
No. 10-5115
AUBURN REGIONAL MEDICAL CENTER, ET AL.,
APPELLANTS
v.
KATHLEEN SEBELIUS, SECRETARY, DEPARTMENT OF HEALTH
AND HUMAN SERVICES,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-02075)
Robert L. Roth argued the cause and filed the briefs for
appellants.
M. Roy Goldberg, Christopher M. Loveland, and Brian
M. Daucher were on the brief for amici curiae Hospice
Advantage, et al. in support of appellants.
Jeffrey A. Lovitky was on the brief for amicus curiae
Quality Reimbursement Services in support of appellants.
Stephanie R. Marcus, Attorney, U.S. Department of
Justice, argued the cause for appellee. With her on the brief
2
were Ronald C. Machen Jr., U.S. Attorney, and Mark B.
Stern, Attorney. Samantha L. Chaifetz, Attorney, and R. Craig
Lawrence, Assistant U.S. Attorney, entered appearances.
Before: HENDERSON and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: Since 1983, Medicare has used
a prospective payment system to reimburse hospitals for their
inpatient operating costs. These payments are based on
predetermined, nationally applicable rates and are subject to
various adjustments. One such adjustment is the
disproportionate share hospital (DSH) payment, which
provides an additional reimbursement to hospitals that serve
large numbers of low-income patients. A hospital’s DSH
payment depends on its “DSH percentage,” a figure that the
Center for Medicare & Medicaid Services (CMS) must
calculate. The DSH percentage varies based on the number of
Medicare beneficiaries entitled to Supplementary Security
Income, a federal low-income supplement established by the
Social Security Act.
This case stems from the discovery in an unrelated case
that CMS had paid hospitals less than they were due because
it had miscalculated the DSH percentage for fiscal years
1993-1996. See Baystate Med. Ctr. v. Leavitt, 545 F. Supp. 2d
20 (D.D.C. 2008). The appellants in this case, a group of
hospitals that receive DSH payments, filed claims with the
Provider Reimbursement Review Board (PRRB) in 2006
seeking full payments for the fiscal years 1987-1994.
Appellants acknowledged that they filed their claim more than
a decade after the deadline for challenging payments, but
argued that the limitations period should be equitably tolled
3
because CMS knowingly and unlawfully failed to disclose
that the DSH payments had been understated.
The PRRB held that it was without authority to toll the
limitations period, making appellants’ claim untimely and
beyond the jurisdiction of the PRRB. Appellants then filed
suit in the district court, which held that it also lacked
jurisdiction in this matter because the PRRB’s determination
was not a “final decision.” The district court further held that
the statute does not allow for equitable tolling. We take
jurisdiction pursuant to 28 U.S.C. § 1291 and reverse and
remand.
I
We consider first whether the PRRB’s dismissal of
appellants’ claims for lack of jurisdiction was a “final
decision.” The Medicare statute grants “[p]roviders . . . the
right to obtain judicial review of any final decision of the
[PRRB] . . . by a civil action commenced within 60 days of
the date on which notice of any final decision by the
[PRRB] . . . is received.” 42 U.S.C. § 1395oo(f). There is no
question that this appeal was brought within sixty days. The
only question is whether the PRRB’s decision was final.
To understand the Secretary’s argument, a word of
explanation is needed about how providers receive Medicare
reimbursements and how they can challenge those they think
are wrong. Each year, Medicare providers submit cost reports
to fiscal intermediaries, who then determine the amount of
Medicare reimbursement due, which is announced in a Notice
of Provider Reimbursement (NPR). If a provider is
dissatisfied, it may appeal that determination to the PRRB but
must do so within 180 days of the NPR. 42 U.S.C.
§ 1395oo(a). According to the Secretary and the district court,
the Board’s dismissal of an untimely claim is not a final
4
decision. We fail to see how this could be the case. The
district court thought this was our holding in Athens
Community Hospital, Inc. v. Schweiker, 686 F.2d 989 (D.C.
Cir. 1982), but it was not. In Athens, we held that “if the
threshold requirements of 42 U.S.C. § 1395oo(f)(1) are met, a
court has jurisdiction to review a decision by the PRRB that
it lacks jurisdiction to review a determination of the fiscal
intermediary.” 686 F.2d at 994 (emphasis added). But
§ 1395oo(f)(1) only requires that “a civil action [be]
commenced within 60 days” of the PRRB’s “final decision.”
It says nothing about the 180-day limitations period.
The Secretary’s confusion seems to stem from our
reference to John Muir Memorial Hospital, Inc. v. Califano,
457 F. Supp. 848 (N.D. Cal. 1978)), in Athens. We stated
there that “jurisdiction was not available to the court in John
Muir because the provider failed to timely file its appeal.
Under [§ 1395oo(f)(1)], a decision by the PRRB not to hear a
case on this basis is, by definition, not a ‘final decision.’” 686
F.2d at 994 n.4. The Secretary reads this statement to suggest
that a PRRB conclusion that it lacks jurisdiction over an
untimely claim is not a final decision subject to judicial
review. But that was not our point. In John Muir, the
provider, without having appealed the fiscal intermediary’s
final determination to the PRRB within 180 days, went
straight to the district court. It did not go there arguing the
PRRB was wrong to deny jurisdiction. Rather, it argued the
court could review the intermediary’s decision on the merits
pursuant to the grant of general federal question jurisdiction
under 28 U.S.C. § 1331, even if a timely claim was never
pressed before the PRRB. See John Muir, 457 F. Supp. at
852-53. The court disagreed, holding that it could only review
cases on the merits that were filed within sixty days of a final
decision by the PRRB. See id. The John Muir court did not
hold that a dismissal for want of jurisdiction is not a final
5
decision on that issue. And with good reason. Such a
dismissal is final in any sense of the word. It is not pending,
interlocutory, tentative, conditional, doubtful, unsettled, or
otherwise indeterminate. It is done.
Indeed, we took jurisdiction in Athens after explaining
that courts have “jurisdiction to review a decision by the
PRRB declining to hear a case on the basis of lack of PRRB
jurisdiction.” 686 F.2d at 993. If it were otherwise, “the
PRRB could effectively preclude any judicial review of its
decisions simply by denying jurisdiction of those claims that
it deems to be non-meritorious.” Id. (quoting Cleveland
Mem’l Hosp., Inc. v. Califano, 444 F. Supp. 125, 128
(E.D.N.C. 1978), aff’d, 594 F.2d 993 (4th Cir. 1979))
(internal quotation marks omitted). Accordingly, courts of
appeals in comparable situations have consistently understood
dismissals for lack of jurisdiction as “final decisions.” See id.
(analogizing to 28 U.S.C. § 1291, where courts have
consistently understood dismissals for lack of jurisdiction as
final decisions). This approach accords not only with common
sense but also with the relevant regulations. Cf. 42 C.F.R.
§ 405.1836(e)(2) (“A Board dismissal decision under
paragraph (e)(1) [which concerns dismissals for ‘lack of
Board jurisdiction’] of this section is final and binding on the
parties. . . .”). We reaffirm, then, that a decision of the PRRB
denying jurisdiction is a final decision subject to judicial
review.
II
The hospitals’ claims, brought over a decade after the
statute of limitations had expired, may only be heard by the
PRRB if the limitations period can be equitably tolled. As we
recently reiterated, “It is hornbook law that limitations periods
are customarily subject to equitable tolling unless tolling
6
would be inconsistent with the text of the relevant statute.”
Menominee Indian Tribe of Wis. v. United States, 614 F.3d
519, 529 (D.C. Cir. 2010) (internal quotation marks omitted).
In general, “the same rebuttable presumption of equitable
tolling applicable to suits against private defendants should
also apply to suits against the United States,” Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 95-96 (1990), and the
presumption of equitable tolling is not disturbed by the fact
that Medicare is a government benefits program, see, e.g.,
Scarborough v. Principi, 541 U.S. 401, 422 (2004). 1
The district court rejected equitable tolling on the ground
that “plaintiffs have proffered nothing suggesting that . . .
Congress intended to authorize equitable tolling for provider
claims.” Auburn Reg’l Med. Ctr. v. Sebelius, 686 F. Supp. 2d
55, 70 (D.D.C. 2010). Subsequently, Menominee made clear
that the appropriate inquiry is just the opposite: whether there
was good reason to think Congress did not want equitable
tolling.
1
We have also required that the injury be “of a type familiar to
private litigation.” Menominee, 614 F.3d at 529 (quoting Chung v.
DOJ, 333 F.3d 273, 277 (D.C. Cir. 2003)). Following the Supreme
Court’s recent decision in Holland v. Florida, 130 S. Ct. 2549
(2010), it is not entirely clear how similar the claim must be to
“private litigation” for equitable tolling to apply. The Court in
Holland applied the presumption of equitable tolling to a
limitations period in the Antiterrorism and Effective Death Penalty
Act without first identifying a private-litigation equivalent, stating
simply that “a nonjurisdictional federal statute of limitations is
normally subject to a ‘rebuttable presumption’ in favor ‘of
equitable tolling.’” Id. at 2560. In any event, the contours of that
requirement need not be determined now, as this case is “of a type
familiar to private litigation” because it is analogous to a contract
claim.
7
This presumption in favor of equitable tolling holds here.
The statute specifies that “[a]ny provider of services which
has filed a required cost report within the time specified in
regulations may obtain a hearing with respect to such cost
report . . . if . . . such provider files a request for hearing
within 180 days after notice of the intermediary’s final
determination.” 42 U.S.C. § 1395oo(a). This language is
similar to other statutes that have been held to permit
equitable tolling. See Menominee, 614 F.3d at 529-31 (finding
equitable tolling permissible where statute required all claims
to “be submitted within 6 years after the accrual of the
claim”); see also Irwin, 498 U.S. at 94-96 (finding equitable
tolling permissible where statute stated that “[w]ithin thirty
days of receipt of notice of final action. . . an employee . . .
may file a civil action”); Kirkendall v. Dep’t of Army, 479
F.3d 830, 837-42 (Fed. Cir. 2007) (en banc) (finding equitable
tolling permissible where statute provided that “within 60
days after the date on which [the complaint] is filed, the
complainant may elect to appeal . . . except that in no event
may any such appeal be brought . . . before the 61st day after
the date on which the complaint is filed”).
The Secretary argues that the presumption is rebutted
here, relying upon United States v. Brockamp, 519 U.S. 347
(1997). In Brockamp, the Supreme Court found that the
statute of limitations for filing tax refund claims, IRC § 6511,
cannot be equitably tolled. But the Court in Brockamp did so
by pointing to a number of factors not present here. First, the
Court observed that ordinarily, “limitations statutes use fairly
simple language,” citing as an example 42 U.S.C. § 2000e-
16(c), which provides that a suit must be filed “[w]ithin 90
days of receipt of notice of final [EEOC] action.” 519 U.S. at
350. By contrast, the Court reasoned, the language in IRC
§ 6511 is “not simple,” but instead “sets forth its limitations in
a highly detailed technical manner,” id., and “reiterates its
8
limitations several times in several different ways,” id. at
351. 2 Also unlike the statute at issue here, IRC § 6511 “sets
forth explicit exceptions to its basic time limits,” id.,
including special time-limit rules for “refunds related to
operating losses, credit carrybacks, foreign taxes, self-
employment taxes, worthless securities, and bad debts.” Id. at
351-52. In the detailed landscape of exceptions before the
Court in Brockamp, there was no reference to equitable
tolling—a fact the Court found particularly conspicuous given
that “[t]ax law . . . is not normally characterized by case-
specific exceptions reflecting individualized equities.” Id. at
352. These reasons, “taken together, indicate[d] . . . that
Congress did not intend courts to read other, unmentioned,
2
IRC § 6511 begins by stating that a “[c]laim for . . . refund . . . of
any tax . . . shall be filed by the taxpayer within 3 years from the
time the return was filed or 2 years from the time the tax was paid,
whichever of such periods expires the later, or if no return was filed
. . . within 2 years from the time the tax was paid.” IRC § 6511(a).
It reiterates that “[n]o credit or refund shall be allowed or made
after the expiration of the period of limitation prescribed . . . unless
a claim for . . . refund is filed . . . within such period.” Id.
§ 6511(b)(1). It again states that “[i]f the claim was filed by the
taxpayer during the 3-year period . . . the amount of the credit or
refund shall not exceed the portion of the tax paid within the period,
immediately preceding the filing of the claim, equal to 3 years plus
the period of any extension of time for filing the return . . . .” Id.
§ 6511(b)(2)(A). Later, § 6511 provides that “[i]f the claim was not
filed within such 3-year period, the amount of the credit or refund
shall not exceed the portion of the tax paid during the 2 years
immediately preceding the filing of the claim.” Id. § 6511(b)(2)(B).
As the Brockamp Court noted, the tax code also “reemphasizes the
point when it says that refunds that do not comply with these
limitations ‘shall be considered erroneous,’ and specifies
procedures for the Government’s recovery of any such ‘erroneous’
refund payment.” 519 U.S. at 351 (citations omitted).
9
open-ended ‘equitable’ exceptions into the statute that it
wrote.” Id.
The statute in this case is different enough from the one
in Brockamp for us to conclude that the presumption of
equitable tolling has not been rebutted. First, the language in
§ 1395oo resembles the “fairly simple language” in § 2000e-
16(c) that the Brockamp Court said clearly allowed equitable
tolling. Compare 42 U.S.C. § 1395oo(a) (allowing “any
provider of services which has filed a required cost report
within the time specified in regulations [to] obtain a hearing .
. . if . . . such provider files a request for hearing within 180
days after notice of the intermediary’s final determination”)
with id. § 2000e-16(c) (stating that a suit must be filed
“[w]ithin 90 days of receipt of notice of final [agency]
action”). Second, although the statute of limitations here has a
“good cause” exception that lasts no longer than three years,
that exception is in the regulations, not the statute, see 42
C.F.R 405.1841(b) (2007), and does not bear on whether
Congress rebutted the presumption of equitable tolling by
enacting a complex set of exceptions to the statute of
limitations. In any event, that one exception is unlike the
numerous “highly technical” exceptions in the Internal
Revenue Code, and is not “reiterate[d] . . . several times in
several different ways.” Brockamp, 519 U.S. at 350-51.
Furthermore, contrary to the Secretary’s suggestions, the
Court’s focus in Brockamp was not the complexity of tax law
per se, but rather the complexity of the provisions governing
whether and when a claim could be filed. Menominee, 614
F.3d at 530 (“[F]ocus on the regulatory scheme as a whole is
misplaced. The Brockamp Court did not concern itself with
the complexity of the Tax Code as a whole, but the
complexity of the time limitations found in § 6511.”). It is
true that as a general matter, the Medicare statute, like the
Internal Revenue Code, is quite complex. But unlike the tax
10
code, the Medicare statute does not create a detailed Jenga
tower of deadlines and exceptions that equitable tolling might
topple. Rather, its timing scheme is straightforward and
readily amenable to tolling.
Given that the factors emphasized in Brockamp do not
apply to the facts presented here, and without any other
reasons for rebutting the presumption of equitable tolling, we
find that equitable tolling is available under § 1395oo(a).
Whether tolling is appropriate in this particular case, however,
is a different question that cannot be answered without further
factual development. That question is for the district court on
remand.
Appellants also raise alternative arguments about the
availability of mandamus and general federal question
jurisdiction in the event that equitable tolling is not available.
Given our disposition, we need not reach those arguments
today.
III
For the foregoing reasons, we reverse and remand for
further proceedings consistent with this opinion.
So ordered.