dissenting:
While I am as sympathetic to the welfare of the plaintiff hospitals as are my colleagues, I am unwilling to stretch, as they do, to grant relief. Accordingly, I dissent.
Judge Spatt’s analysis of the issues, reported at 130 F.Supp.2d. 376, is thorough, straightforward and correct, and I would be willing to adopt it as my own.' The majority spend much of their opinion addressing the Secretary’s actions, but very little of it discussing the merits of the district court’s opinion. Indeed, they only criticize Judge Spatt for failing to require “some reasoned analysis” by the Secretary for her asserted lack of consistency.
In focusing so myopically on the Secretary’s tangential fluctuations, my colleagues overlook the simple fact that 42 C.F.R. § 412.71(a) defines the “base year” in accordance with the plain meaning of 42 U.S.C. § 1395ww(b)(3)(a). As the district court stressed, the statute, which was passed in 1982, specifies “the first such reporting period for which this subsection is in effect,” i.e., in the words of the regulation at issue, “the 12 month or longer cost reporting period ending on or after September 30, 1982 and before September 30, 1983.” 412.71(a) is an obviously correct interpretation of section (b)(3)(a) in action, and there is no need for a more “reasoned analysis” to uphold it. That the Secretary may have later erroneously interpreted (b)(3)(a) in an inconsistent manner is irrelevant. That questionable subsequent regulation is not at issue.
The majority, in the end, presumptuously direct the Secretary to adopt their interpretation of the statute. Their dictate, with all due respect, seems to me the most arbitrary and capricious part of this case.