United States Court of Appeals
F OR T HE D ISTRICT OF C OLUMBIA C IRCUIT
____________
No. 10-5115 September Term 2011
1:07-cv-02075-JDB
Filed On: December 20, 2011
Auburn Regional Medical Center, et al.,
Appellants
v.
Kathleen Sebelius, Secretary, Department of
Health and Human Services,
Appellee
BEFORE: Sentelle, Chief Judge, and Henderson, Rogers, Tatel, Garland,
Brown, Griffith*, and Kavanaugh, Circuit Judges, and Williams*,
Senior Circuit Judge
ORDER
Upon consideration of appellee’s petition for rehearing en banc, the response
thereto, and the absence of a request by any member of the court for a vote, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Michael C. McGrail
Deputy Clerk
A statement by Circuit Judge Griffith, joined by Senior Circuit Judge Williams,
concurring in the denial of rehearing en banc is attached.
United States Court of Appeals
F OR T HE D ISTRICT OF C OLUMBIA C IRCUIT
____________
No. 10-5115 September Term 2011
Griffith, Circuit Judge, joined by Williams, Senior Circuit Judge, concurring in the
denial of rehearing en banc: The Secretary urges the reconsideration of our conclusion
that Congress did not preclude equitable tolling of the limitations period for filing
Medicare reimbursement claims on the ground that we overlooked the administrative
burdens that tolling brings. But we were simply following the analytical framework set
forth in United States v. Brockamp, 519 U.S. 347 (1997). Panel Op. 7-10. The Supreme
Court undertook the inquiry in two stages. Looking first at the limitations provisions of
the statute, the Court concluded that the statute’s “detail, its technical language, the
iteration of the limitations in both procedural and substantive forms, and the explicit
listing of exceptions,” taken together, showed that Congress did not intend other
equitable exceptions to be read into the statute. Brockamp, 519 U.S. at 352. The
burdens caused by equitable tolling, the second stage in the Court’s analysis, simply
underscored what an analysis of the text had already revealed. As we read Brockamp,
we need not look at any burdens that might flow from equitable tolling when the textual
factors fail to rebut the presumption. We can imagine their relevance when the text of
the statute is not otherwise clear, but in this case the statute itself is without any clues
that suggest Congress barred equitable tolling.
It is unclear whether Holland v. Florida, 130 S. Ct. 2549 (2010), transformed
Brockamp’s two-step approach into a balancing test that puts administrative burdens on
an equal footing with the textual factors. In Holland, the Supreme Court included the
administrative burdens that might result from equitable tolling alongside the textual
factors the Court used in Brockamp to conclude that the limitations period in the
Antiterrorism and Effective Death Penalty Act of 1996 may be equitably tolled. See id.
at 2561. We need not decide whether this marks a change in the Court’s analysis
because even if the burdens created by equitable tolling are now an indispensable part
of the inquiry, they do not change the outcome in this case. None of the textual factors
in the Medicare reimbursement statute weigh in favor of equitable tolling. Unlike the
emphatic, detailed, and repeated limitations provisions in Brockamp, the limitations
provision here is simple and includes no exceptions that suggest Congress intended to
preclude equitable tolling. See Panel Op. 7-8. While allowing equitable tolling may
increase the amount of interest recoverable, that effect is straightforward relative to the
potential effect of tolling in Brockamp, where the calculation of the refund itself changed
depending on when claims were filed. See Brockamp, 519 U.S. at 351. Although it is no
doubt true that the complex Medicare reimbursement scheme will be more difficult to
administer with equitable tolling available to claimants, that factor alone is not enough to
persuade us that Congress rejected the presumption of equitable tolling with the type of
clarity the precedents require.
Accordingly, we concur in the denial of rehearing en banc.
Page 2