United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 6, 2009 Decided May 19, 2009
No. 08-5159
BAPTIST MEMORIAL HOSPITAL - GOLDEN TRIANGLE, ET AL.,
APPELLANTS
v.
KATHLEEN SEBELIUS, IN HER OFFICIAL CAPACITY AS
SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-01413-CKK)
Leslie D. Alderman III argued the cause for appellants.
With him on the briefs was Kenneth R. Marcus.
Jeffrey A. Lovitky was on the brief for amicus curiae
Quality Reimbursement Services in support of appellants.
Bridgette L. Kaiser, Attorney, U.S. Department of Health
& Human Services, argued the cause for appellee. With her
on the brief were Gregory G. Katsas, Acting Assistant
Attorney General, U.S. Department of Justice, Jeffrey A.
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Taylor, U.S. Attorney, Michael S. Raab, Attorney, and Janice
L. Hoffman, Attorney, U.S. Department of Health & Human
Services. R. Craig Lawrence, Assistant U.S. Attorney, and
Robert W. Balderston, Attorney, U.S. Department of Health
& Human Services, entered appearances.
Before: KAVANAUGH, Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: The Provider
Reimbursement Review Board is a governmental tribunal
within the Department of Health and Human Services. It
adjudicates disputes regarding hospitals’ Medicare
reimbursements. In this case, the Board denied
reimbursement claims submitted by three hospitals – Golden
Triangle, St. Joseph, and DeSoto. The hospitals contend that
the Board, in denying the claims, incorrectly interpreted and
enforced its own procedural rules. The District Court ruled
that the Board permissibly applied the relevant procedural
directives. The court therefore granted summary judgment to
the Board. Because the Board’s procedural rules mean what
they say and say what they mean, and because the hospitals
did not follow them, we affirm.
I
Three hospitals – Golden Triangle in Columbus,
Mississippi; St. Joseph in Memphis, Tennessee; and DeSoto
in Southaven, Mississippi – appealed to the Provider
Reimbursement Review Board regarding certain Medicare
decisions denying reimbursement for inpatient hospital
services. (We will spare the reader the numbing details of the
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reimbursement dispute, as they are not relevant to the
procedural issue here.) In 2003, the Board dismissed the
hospitals’ appeal because the hospitals had violated one of the
Board’s procedural rules, or “Instructions.” In particular, the
hospitals had failed to file their “preliminary position papers”
in a timely manner. See Instruction II.B.I., reprinted in Joint
Appendix (“J.A.”) 1322.
The Instructions allowed parties to try to reinstate
previously dismissed appeals by submitting explanations for
their failures to comply with Board procedures. Yet the
hospitals in this case did not seek reinstatement of their
dismissed appeal through that authorized route. Instead, the
hospitals simply attempted to raise the same issues anew in
separate appeals. The Board rejected the hospitals’ efforts to
circumvent the Instructions’ reinstatement procedures in this
way.
The hospitals then filed a civil action against the Board
pursuant to 42 U.S.C. § 1395oo(f)(1). The hospitals argued
that the Board’s Instructions permitted them to raise issues
from dismissed appeals in new appeals to the Board. In
response, the Board contended that the hospitals were
required to follow the Instructions’ reinstatement process but
failed to do so. In a thorough opinion, the District Court
granted summary judgment to the Board, finding that it had
permissibly applied its own procedures in rejecting the
hospitals’ appeals. The hospitals now appeal. Our review of
the District Court’s summary judgment decision is de novo.
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II
A
The parties agree that this case turns on the Board’s
interpretation of its procedural rules, known as Instructions.
As an initial matter, the hospitals contend that we should
afford no deference to the Board’s interpretation of its own
Instructions. Cf. Auer v. Robbins, 519 U.S. 452, 461 (1997).
We need not tackle the question of deference: We agree with
the Board’s interpretation of its Instructions regardless of
what, if any, deference we owe it in this case.
We begin with the text of the Instructions. Instruction
II.B.I provides: “If you fail to meet the preliminary position
paper due date and fail to supply the Board with the required
documentation, the Board will dismiss your appeal for failure
to follow Board procedure.” J.A. 1322 (emphasis added).
Under this provision, the Board dismissed the hospitals’
original appeal because – as all parties agree – the hospitals
did not timely file their position papers.
The Instructions also provide guidance about how to
reinstate a dismissed appeal. The reinstatement provision, or
Instruction I.C.XIII, states that the Board “may consider
provider requests to reinstate an appeal that it has dismissed.
These fall into two categories, both of which require you to
follow specific Board procedures.” J.A. 1309. The second
category – “Reinstatement of Appeal Dismissed by the
Board” – is relevant here. It states in part: “If you are
requesting reinstatement because the Board dismissed your
appeal for failure to comply with its procedures, you must
explain in detail the reasons why you failed to comply. In
general, this means the reasons you missed a position paper
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due date . . . .” Instruction I.C.XIII.b, J.A. 1309 (emphasis
added).
For whatever reason, the hospitals in this case did not
follow the authorized avenue for reinstating their appeal.
Their failure to do so poses a serious problem because the two
Instructions at issue here – one regarding dismissal and the
other relating to reinstatement – are textually and functionally
interrelated. The first provides a basis for the Board to
dismiss a hospital’s claim, and the second provides the means
for a hospital to reinstate its previously dismissed appeal. The
most natural reading of Instructions II.B.I and I.C.XIII
together is that a hospital must follow this precise procedure
in order to reinstate dismissed appeals. Indeed, the
Instructions bluntly reinforce the point, warning: “Your
appeal . . . must follow Board procedures.” See Instruction
II.B.I.a, J.A. 1296.
Notwithstanding the clear directions in the Instructions,
the hospitals gamely argue that they did not need to follow the
Instructions to reinstate a previously dismissed appeal. The
hospitals rely on a version of the expressio unius canon and
point to a separate provision, Instruction III.B.I.d. That
Instruction cautions that failure to appear at a Board hearing
without good cause will lead the Board to “dismiss your case
with prejudice.” Instruction III.B.I.d, J.A. 1331. According
to the hospitals, that Instruction’s use of the phrase “with
prejudice” means that the use of “dismiss” in the dismissal
Instruction at issue here means “dismiss without prejudice.”
The hospitals therefore contend that they were free to re-file a
new appeal bringing the same claims that had been raised and
dismissed in a previous appeal.
The hospitals cannot so easily evade the plain meaning of
the Instructions. The relevant reinstatement provision quite
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clearly explains how to reinstate appeals for failure to file a
timely position paper and lists certain requirements for doing
so – including that the party “explain in detail” its reason for
non-compliance. Instruction I.C.XIII.b, J.A. 1309. We do
not find it at all plausible to interpret the Instructions to allow
a party to ignore the reinstatement provision and instead just
file a new appeal raising the same claims.
The hospitals relatedly suggest that the reinstatement
provision does not apply to the kind of procedural violation
committed by the hospitals in this case – failure to file timely
position papers. That argument again flouts the plain text of
the Instructions. The reinstatement provision employs
expansive language and applies to parties “requesting
reinstatement because the Board dismissed your appeal for
failure to comply with its procedures.” Instruction I.C.XIII.b,
J.A. 1309. Furthermore, the reinstatement provision
specifically covers dismissals resulting, as in this case, from
failure to comply with a “position paper due date.” Id. It’s
hard to imagine language more directly on point.
The hospitals also note that the Secretary of Health and
Human Services has recently replaced these Instructions and
promulgated a new procedural rule, which states that if “a
provider fails to meet a filing deadline or other requirement
established by the Board in a rule or order, the Board may . . .
Dismiss the appeal with prejudice.” 42 C.F.R. § 405.1868(b).
Another new Board rule states that that “Once an issue is
dismissed or withdrawn, the issue may not be appealed in
another case.” Provider Reimbursement Review Board Rule
4.7 (2008). According to the hospitals, those new regulations
show that a dismissal under the previous Instructions was not
a dismissal with prejudice. But when a legislative or
executive body adopts a new clarifying law or rule, it does not
necessarily follow that an earlier version did not have the
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same meaning. Cf. Brown v. Thompson, 374 F.3d 253, 259
(4th Cir. 2004) (A “change in statutory language need not
ipso facto constitute a change in meaning or effect. Statutes
may be passed purely to make what was intended all along
even more unmistakably clear.”) (internal quotation marks
and alteration omitted); Piamba Cortes v. American Airlines,
Inc., 177 F.3d 1272, 1283 (11th Cir. 1999) (An “amendment
containing new language may be intended to clarify existing
law, to correct a misinterpretation, or to overrule wrongly
decided cases. Thus, an amendment . . . does not necessarily
indicate that the unamended statute meant the opposite of the
language contained in the amendment.”) (internal quotation
marks omitted).
This case is a good example. Even though the new Board
regulations are clearer and remove any possible ambiguity,
the earlier Instructions are nonetheless best read as the Board
interpreted them: A party whose appeal is dismissed for
failure to timely file a position paper must follow the
reinstatement provision in order to bring that same claim back
before the Board.
B
The hospitals raise a number of additional contentions
that warrant only brief discussion.
First, the hospitals insist that the administrative record in
this case is inadequate because it does not shed light on how
the Board has resolved similar cases. According to the
hospitals, the District Court therefore should have permitted
discovery into the Board’s treatment of analogous situations.
This argument misunderstands the proper judicial role in
reviewing administrative action under the Administrative
Procedure Act. See Fla. Power & Light Co. v. Lorion, 470
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U.S. 729, 744 (1985) (“The reviewing court is not generally
empowered to conduct a de novo inquiry into the matter being
reviewed and to reach its own conclusions based on such an
inquiry.”); Camp v. Pitts, 411 U.S. 138, 142 (1973) (“the
focal point for judicial review should be the administrative
record already in existence, not some new record made
initially in the reviewing court”); see also FED. R. APP. P. 16.
Although limited discovery in agency cases may be
appropriate “when there has been a strong showing of bad
faith or improper behavior or when the record is so bare that it
prevents effective judicial review,” those narrow exceptions
do not apply here. Commercial Drapery Contractors, Inc. v.
United States, 133 F.3d 1, 7 (D.C. Cir. 1998) (internal
quotation marks omitted). Therefore, the District Court
properly refused to grant discovery to the hospitals.
Second, the hospitals argue that the Board’s ruling
contravenes a decision by the Secretary of Health and Human
Services in a separate case, Rhode Island Hospital v. Leavitt,
No. 06-260, 2007 WL 294026 (D.R.I. Jan. 26, 2007). There,
the Secretary settled a suit involving whether certain issues
were part of a previously dismissed appeal. Here, by contrast,
it is quite clear that the issue the hospitals are seeking to raise
anew was part of their previously dismissed appeal. We see
no inconsistency between the Secretary’s decision in the
Rhode Island case and the Board’s action in this case. In any
event, the Rhode Island settlement does not create a binding
precedent that the Board must follow in this case. Cf. High
Country Home Health, Inc. v. Thompson, 359 F.3d 1307,
1314-15 (10th Cir. 2004) (“settlement agreements have no
precedential weight, and the mere fact that the Secretary has
settled other cases does not make it arbitrary and capricious
for him not to settle this one”).
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Third, the hospitals contend that the Board’s original
dismissal decision did not apply to the DeSoto Hospital
because DeSoto had withdrawn from the dismissed appeal.
But DeSoto did not comply with the withdrawal procedures
set out in Instruction I.C.XII, J.A. 1308-09. Therefore, the
Board appropriately deemed DeSoto part of the dismissed
appeal.
Fourth, the hospitals suggest that the original dismissals
should not apply to Golden Triangle and St. Joseph because
they had complied with relevant deadlines in earlier filed
appeals. However, satisfying one deadline obviously does not
excuse the violation of another.
Fifth, the hospitals argue that the dismissals were
improper because the Board’s decisions to dismiss were
rendered by one Commissioner and not by a quorum of the
Commission, as allegedly required under regulations then in
effect. See 42 C.F.R. § 405.1845(d) (2003). The hospitals
did not raise these arguments in the District Court, and we do
not consider them here. See District of Columbia v. Air Fla.,
Inc., 750 F.2d 1077, 1084 (D.C. Cir. 1984).
Finally, the Quality Reimbursement Services as amicus
curiae raises several contentions not raised in the District
Court or by the parties to this appeal. We will not consider
them. See id.; see also Lamprecht v. FCC, 958 F.2d 382, 389
(D.C. Cir. 1992).
***
We affirm the judgment of the District Court.
So ordered.