New Mex. Health Connections, Non-Profit Corp. v. U.S. Dep't of Health & Human Servs.
New Mex. Health Connections, Non-Profit Corp. v. U.S. Dep't of Health & Human Servs.
Opinion of the Court
THIS MATTER comes before the Court on: (i) the Defendants' Motion to Alter or Amend Judgment Pursuant to Federal Rule of Civil Procedure 59(e), filed March 28, 2018 (Doc. 57)("Motion"); (ii) the Plaintiff's Motion to Strike the Declaration of Jeffrey Wu or in the Alternative Grant Plaintiff Leave to Take Discovery, filed April 23, 2018 (Doc. 61)("Motion to Strike"), and Plaintiff's Memorandum of Law in Support of its Motion to Strike the Declaration of Jeffrey Wu or in the Alternative, Grant Plaintiff Leave to Take Discovery, filed April 23, 2018 (Doc. 62)("Strike Mem."); and (iii) the Motion of America's Health Insurance Plans and Blue Cross Blue Shield Association for Leave to File Statement on New Developments in Support of Rule 59(e) Motion as Amici Curiae, filed July 19, 2018 (Doc. 80)("Motion for Leave"). The Court held a hearing on the Motion and the Motion to Strike on June 21, 2018. The primary issues are: (i) whether the Court should reconsider its determination in the Memorandum Opinion and Order,
While the Court carefully reconsiders its MOO, the Court stands by both its determination that HHS' risk adjustment formula is arbitrary and capricious, and that vacating the formula and remanding to HHS for further consideration is the appropriate remedy. The Court also concludes that it is appropriate to consider recent developments and the consequences of its decision in this case and, thus, may consider the remarks in the Wu Decl. and the statement that AHIP and Blue Cross wish to file as amici curiae. Accordingly, the Court denies the Motion and the Motion to Strike, and grants the Motion for Leave.
FACTUAL BACKGROUND
Congress enacted The Patient Protection and Affordable Care Act, Pub. L. No. 111-148,
The ACA expands healthcare access, but it also increases health-insurance-industry risk. That the ACA requires insurers to cover all individuals, healthy or otherwise, means an insurer could end up providing coverage to a particularly sickly group of customers. See 42 U.S.C. § 300gg-1(a) ("[E]ach health insurance issuer that offers health insurance coverage in the individual or group market in a State must accept every employer and individual in the State that applies for such coverage."). The ACA prohibits those same insurers from responding to the increased cost of providing healthcare coverage to sicker individuals by charging those individuals higher prices. See 42 U.S.C. § 300gg(a) (prohibiting price discrimination based on factors other than geography, age, tobacco use, and whether coverage extends to an individual or to a family). Taken together, those two ACA requirements "threaten to *1122impose massive new costs on insurers, who are required to accept unhealthy individuals but prohibited from charging them rates necessary to pay for their coverage." Nat'l Fed'n of Indep. Bus. v. Sebelius,
The ACA contemplates three kinds of programs -- two temporary and one permanent -- to ameliorate that problem. See
Second, under the temporary risk corridor program, which also operated only from 2014 to 2016, sufficiently profitable insurers must make payments to HHS while HHS must make payments to sufficiently unprofitable insurers. See
Third, under permanent risk adjustment programs, "each State shall assess a charge" on insurers "if the actuarial risk of [their] enrollees ... for a year is less than the average actuarial risk of all enrollees in all plans or coverage in such State for such year."
While the ACA refers to "States" assessing charges and providing payments in risk adjustment programs,
HHS regulations implementing that open-ended mandate in
Each year, HHS publishes the methodology it uses to calculate the risk adjustment payments that insurers make to HHS or receive from HHS. See
HHS' risk adjustment methodology
Health Connections is a Consumer Operated and Oriented Plan ("CO-OP")
Health Connections offers -- and has offered since its inception -- the lowest or second-lowest cost health insurance plan in New Mexico. See Hickey Decl. ¶ 31, at 6 (NMHC000868). It has offered such affordable plans even while serving unhealthy enrollees -- such as many who suffer from Hepatitis C, since New Mexico has the highest prevalence of it in the nation. See Patient Protection and Affordable Care Act Comments to HHS Notice of Benefit and Payment Parameters for 2018 at 19-20 (dated October 6, 2016)(NMHC0000853-54)("2018 Comments"). "At a meeting of the National Association of Insurance Commissioners, the Superintendent of Insurance of New Mexico stated" that Health Connections' entry into the health-insurance marketplace increased competition and saved New Mexicans "over half a billion dollars over the last three years." Hickey Decl. ¶ 36, at 7 (NMHC000869).
While many health-insurance companies aim for a profit margin between 2% and 5% of their premiums, see Hickey Decl. ¶ 19, at 4 (NMHC000866), for 2014, many small health-insurance companies were required to pay over 10% of their premiums as risk adjustment charges, see Letter from CHOICES to Centers for Medicare & Medicaid Services, United States Department of Health and Human Services (dated April 22, 2016)(NMHC001018). For that year, HHS assessed Health Connections *1125a $6,666,798.00 risk adjustment charge, which is equal to 21.5% of Health Connections' 2014 premiums. See Hickey Decl. ¶ 17, at 3 (NMHC000865). For 2015, HHS assessed Health Connections a $14,569,495.74 risk adjustment charge, which is equal to 14.7% of Health Connections' 2015 premiums. See Hickey Decl. ¶ 18, at 4 (NMHC000866).
Risk adjustment charges have, thus, forced several CO-OP program participants to close their doors. See 2018 Comments at 3 (NMHC000837); U.S. House of Representatives Committee on Energy and Commerce, Implementing Obamacare: A Review of CMS' Management of the Failed CO-OP Program at 19-22 (dated September 13, 2016)(NMHC000910-13); CHOICES, Technical Issues with ACA Risk Adjustment and Risk Corridor Programs, and Financial Impact on New, Fast-Growing, and Efficient Health Plans at 11-13 (NMHC001000-02); Connecticut Insurance Department, Insurance Department Places HealthyCT Under Order of Supervision (dated September 26, 2016)(NMHC001351-52). Several state insurance commissioners have expressed concern about the risk adjustment program. For example, Maryland's Insurance Commissioner testified to Congress:
Over the past few years, new innovative health insurance plans have been created that are providing enhanced competition and patient care. And it is working. For year-end 2014, CareFirst had a 91% market share of the individual market in Maryland. Today, it is 57%, due in part to a more competitive marketplace. These carriers have the potential to continue but their ability to do so is severely jeopardized by the adverse and perhaps fatal financial impact caused by the technical shortcoming of the current risk adjustment and risk corridor programs....
The risk adjustment formula is of concern to state regulators because it has proven to place newer carriers at a distinct disadvantage. For example, the risk adjustment formula quantifies an enrollee's health status based on age, sex and diagnoses recorded during the course of the year. New carriers have very limited information on the health status or previous claims history of the applicants. Therefore, the carrier's population may appear healthier than it actually is if some diagnoses are not captured which may result in improper risk adjustment payments.
See Written Testimony for: Mr. Al Redmer, Jr., Commissioner, Maryland Insurance Administration (NMHC001331). The New York Superintendent of Financial Services had similar concerns:
DFS [ (New York State Department of Financial Services) ] is concerned that the risk adjustment program has created inappropriately disparate impacts among health insurance issuers in New York and unintended consequences.
Specifically, it is DFS's understanding that, based on the data accumulated by [Centers for Medicare & Medicaid Services ("CMS") ] for the upcoming report on June 30, 2016, new and smaller issuers generally are considered to have had relatively healthy members than their larger and more established competitors. CMS's anticipated determination appears to be unduly impacted by the dates of diagnoses or recording of diagnoses of members' medical conditions rather than actual relative health of the members. This disparity may be because the new and smaller health insurers have not been in operation long enough to have amassed the long term data and records management systems that have helped to allow the large, established health insurers to convince CMS that their members are relatively unhealthy and, concomitantly, will allow *1126them to receive large payments from the risk adjustment program.
Letter from Maria T. Vullo, Superintendent of Financial Services of the State of New York, to Sylvia M. Burwell, Sec'y of HHS, and Andrew Slavitt, Acting Adm'r for CMS at 1-2 (dated June 28, 2016)(NMHC001335-36).
PROCEDURAL BACKGROUND
Health Connections filed its initial complaint on July 29, 2016, see Complaint for Declaratory and Injunctive Relief at 1, filed July 29, 2016 (Doc. 1), and it filed an amended complaint approximately six months later, see Amended Complaint for Declaratory and Injunctive Relief at 1, filed January 12, 2017 (Doc. 21)("Complaint"). The Complaint invokes the judicial review provisions that the Administrative Procedure Act, Pub. L. No. 79-404,
Reviews of agency action in the district courts must be processed as appeals . In such circumstances the district court should govern itself by referring to the Federal Rules of Appellate Procedure. Motions to affirm and motions for summary judgment are conceptually incompatible with the very nature and purpose of an appeal.
Olenhouse v. Commodity Credit Corp.,
In the MSJ, Health Connections argues -- among other things
In the briefing leading up to the Court's MOO, no third-party filed a motion for leave to file an amicus brief or filed an amicus brief. Indeed, in the United States District Court for the District of Massachusetts, when the Honorable F. Dennis *1127Saylor IV decided Minuteman Health, Inc. v. United States Department of Health and Human Services,
1. The MOO.
In its MOO, the Court determines that HHS' decision to use statewide average premiums is not contrary to law, but it is arbitrary and capricious. See MOO at 59-60,
That the ACA commands "[t]he Secretary, in consultation with States, [to] establish criteria and methods to be used in carrying out the risk adjustment activities" indicates that the ACA does not oblige HHS to use actuarial risk as the sole actuarial risk criterion.42 U.S.C. § 18063 (b). Telling HHS to establish risk adjustment criteria would make no sense otherwise. The ACA's language stating that health plans and health insurance issuers must make a risk adjustment payment if their enrollees have below-average actuarial risk, see42 U.S.C. § 18063 (a)(1), while health plans and health insurance issuers must receive a risk adjustment payment if their enrollees have above-average actuarial risk, see42 U.S.C. § 18063 (a)(2), does not mean that criteria other than actuarial risk cannot be used when determining the magnitude of those payments.... The statute does not say anything about how to calculate the charge; it says only "each state shall assess a charge...."42 U.S.C. § 18063 (a)(1). From the text, the charge assessed could be any amount.
MOO at 61-62,
The Court also concludes, however, that HHS' decision was arbitrary and capricious, because the agency did not give adequate reasons for its decision to use statewide average premiums and not each insurer's own average premium when calculating risk adjustment payments. See MOO at 64,
The problem with invoking those policy rationales here, however, is that HHS never articulates any public policy decision to operate risk adjustment in a budget neutral way; HHS' only decision is to comply with a supposed statutory requirement. That HHS, in designing its risk adjustment methodology, never considered whether budget neutrality was sound public policy means that HHS cannot now appeal to budget neutrality's public policy benefits to justify its decision. That HHS can reasonably conclude that budget neutrality is a worthy public policy goal does not permit the Court, in reviewing HHS' decisionmaking, to act as though HHS actually considered the issue and reached that conclusion.
MOO at 68-69,
There was very little published as to the Court's ruling. See, e.g., Marie C. Baca, Favorable NM Health Connections Ruling Has National Implications, LAS CRUCES SUN NEWS (March 2, 2018, 1:07 PM), https://www.lcsun-news.com/story/news/local/new-mexico/2018/03/02/favorable-nm-health-connections-ruling-has-national-implications/390119002/; John Kennedy, HHS Must Reconsider Formula for ACA Payments, LAW 360 (March 1, 2018, 9:02 PM), https://www.law360.com/articles/1017456/hhs-must-reconsider-formula-for-aca-payments; Shelby Livingston, New Mexico Co-op Scores Partial Victory in ACA Risk-Adjustment Case, MOD. HEALTHCARE (March 2, 2018), http://www.modernhealthcare.com/article/20180302/NEWS/180309960; Paige Minemyer, FIERCEHEALTHCARE (March 2, 2018, 10:47 AM), https://www.fiercehealthcare.com/payer/new-mexico-health-connections-risk-adjustment-hhs-affordable-care-act; Federal District Court Vacates Part of CMS's ACA Risk Adjustment Methodology, COVINGTON & BURLING LLP (March 6, 2018), https://www.cov.com/en/news-and-insights/insights/2018/03/federal-district-court-vacates-part-of-cmss-aca-risk-adjustment-methodology; Judge: HHS Mistakenly Envisioned ACA Risk-Adjustment Program as Budget Neutral, LEXIS LEGAL NEWS (March 2, 2018, 2:46 PM), https://www.lexislegalnews.com/articles/24727/judge-hhs-mistakenly-envisioned-aca-risk-adjustment-program-as-budget-neutral; U.S. District Court Rules in Favor of New Mexico Health Connections in Risk Adjustment Case, GRANT COUNTY BEAT (March 1, 2018), http://www.grantcountybeat.com/news/non-local-news-releases/42569-u-s-district-court-rules-in-favor-of-new-mexico-health-connections-in-risk-adjustment-case. No third party attempted to file an amicus brief or filed an amicus brief.
*11302. The Motion.
HHS argues that the Court should reconsider its determination that HHS' decision to use statewide average premiums in its risk adjustment transfer formula "is arbitrary and capricious because HHS did not explain its reasons for designing the program in a budget-neutral manner." Motion at 1. HHS gives three reasons why, in its view, reconsideration is appropriate. First, HHS argues that, "under black-letter principles of administrative law, HHS was not required to explain -- and NMHC was largely foreclosed from challenging -- HHS's budget-neutral approach to the risk adjustment program, because at no point during the 2014-2017 rulemakings did NMHC or any other commenter challenge or question that approach." Motion at 2. See Motion at 11 ("Furthermore, when NMHC did finally raise the budget neutrality issue to the agency during the 2018 rulemaking (after it filed this lawsuit), it largely argued only that budget neutrality is not statutorily mandated, not that it is irrational."). HHS asserts that, when commenters finally objected to the budget-neutral approach during the 2018 rulemaking, it adequately addressed the objections by explaining that "the absence of additional funding for the HHS-operated risk adjustment program" requires budget neutrality. Motion at 2 (internal quotations and emphasis omitted)(quoting HHS Notice of Benefit and Payment Parameters for 2018,
Second, HHS asserts that, even though the ACA does not explicitly require risk adjustment to be budget neutral, HHS' budgetary restraints mean that, as a practical matter, budget neutrality is the agency's only option. See Motion at 2-3. HHS avers that risk adjustment charges are the only funding source from which the agency can make risk adjustment payments, because Congress has not made a risk-adjustment-specific appropriation or permitted HHS to use its program management appropriation to fund risk adjustment. See Motion at 15-16, 15 n.4.
HHS then argues that -- if the Court stands by its determination that HHS acted arbitrarily and capriciously -- the Court should reconsider the remedy it imposed. See Motion at 3-4. HHS faults the Court for "assuming that vacatur was mandatory and declining to weigh the equities before entering such an extraordinarily disruptive remedy." Motion at 3. According to HHS, "The Tenth Circuit has made clear that a court has the discretion to remand without vacatur based on equitable considerations, and courts have consistently held that when an agency's only error is inadequate explanation, the proper course is to remand for additional explanation without vacating the agency's action." Motion at 3-4. See Motion at 21 ("The Tenth Circuit recently confirmed that a court may decline to vacate agency action even if it finds that action arbitrary and capricious." (citing WildEarth Guardians v. U.S. Bureau of Land Mgmt.,
3. The Wu Decl.
HHS filed the Wu Decl. as an attachment to the Motion. See Wu Decl. ¶ 1, at 1. Wu is the Associate Deputy Director for Policy Coordination at the Center for Consumer Information and Insurance Oversight, an HHS component. See Wu Decl. ¶ 2, at 1. Wu describes the risk adjustment program as a permanent program under ACA meant "to mitigate the potential impact of adverse selection, stabilize the price of health insurance in the individual and small group markets, and ensure that premiums are not based on the health status of enrollees." Wu Decl. ¶ 6, at 2. He states that the risk adjustment program, like the temporary reinsurance and risk corridors programs, "are each funded entirely from amounts that insurance entities pay into them. Congress did not enact separate appropriations for these provisions." Wu Decl. ¶ 7, at 2. According to Wu, the Court's vacatur of the 2014-2018 rules will impose administrative burdens on health insurance companies and create uncertainty for them. See Wu Decl. ¶¶ 6-22, at 2-6.
4. The Response.
Health Connections' response explains why, in its view, the Court should not grant the Motion. See Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Alter or Amend Judgment Pursuant to Rule 59(e) at 1, filed April 23, 2018 (Doc. 63)("Response"). Health Connections begins by responding to HHS' argument that Health Connections waived its challenge to "HHS's use of the statewide average premium in the risk adjustment transfer formula as opposed to an issuer's own premium." Response at 5. Health Connections contends that HHS'
*1132focus on whether it or other commenters challenged HHS' budget-neutral approach to risk adjustment is misplaced:
HHS's argument is premised on an artificial distinction between the agency action challenged -- the use of the statewide average premium instead of an issuer's own premium -- and the agency's justification for that action. However, the action engaged in by the agency, challenged by NMHC, and addressed by this Court was the decision to use the statewide average premium instead of a plan's own premium. The agency's justification for its choice -- budget neutrality -- is not in and of itself an agency action subject to separate challenge under the APA.
Response at 6. According to Health Connections, HHS "confuses the agency action being challenged with the proffered justification for the action." Response at 7. Health Connections asserts: "There can be no dispute that NMHC and other commenters challenged the agency's decision to use the statewide average premium instead of an issuer's own premium in both the 2017 and 2018 rulemaking periods." Response at 7 (listing examples). Health Connections also asserts that the fact "that commenters may not have squarely addressed the issue during the 2014-2016 rulemakings is immaterial[,] because the agency considered the issues on its own initiative." Response at 8. See Response at 8 ("If an agency considered the issue sua sponte , the Court will not invoke the waiver rule because the agency had the opportunity to consider the issue and apply its expertise." (citations omitted) ). Health Connections further asserts that "parties are not required to challenge 'key assumptions' used to justify the agency's rule" or obvious problems underlying their claim. Response at 8 (quoting Nat. Res. Def. Council v. EPA,
Health Connections then addresses HHS' argument that budgetary constraints prevent it from adopting a risk adjustment formula that is not budget neutral. See Response at 9-10. Health Connections argues that HHS can use its program management appropriation to fund the risk adjustment program if HHS adopts a budget-negative formula. See Response at 14-15. Health Connections contends that HHS' assertion that the agency's program management appropriation cannot fund the risk adjustment program is "entitled to no deference," because it is a post-hoc litigation position that "contradicts the [Government Accountability Office ("GAO") ], which is the actual expert agency in the field of government appropriations, whose views are entitled to deference." Response at 14-15 (citing Motion at 16). Health Connections adds that its argument regarding HHS' program management appropriation is not a challenge to HHS' "decision not to allocate funds" for risk adjustment; instead, that argument regarding fund availability is part of a challenge to "the agency's action in adopting a formula using the statewide average premium instead of each issuer's own premium." Response at 16.
Finally, Health Connections contends that the Court should vacate HHS' risk adjustment formula and remand for further consideration, because that is "the standard remedy when a Court finds regulatory action to violate the APA." Response at 16 (citing Se. Alaska Conservation Council v. U.S. Army Corps of Eng'rs,
*1133St. Lawrence Seaway Pilots Ass'n v. U.S. Coast Guard,
The bulk of Mr. Wu's argument [on HHS' behalf] is that vacatur upsets settled expectations and reliance interests in the previously issued risk adjustment regulations. But this harm is self-inflicted: the Court has not prohibited HHS from continuing the same risk adjustment formula, but only required it to justify its policy choices in compliance with the APA. Mr. Wu nowhere explains why HHS has not simply commenced a new rulemaking to address the errors found by the Court. The only conclusion is either that the agency does not consider risk adjustment important enough to act upon, in which case the cry of disruption rings hollow, or the agency cannot address the Court's critique, in which case the remedy is wholly appropriate to address a serious deficiency.
In addition, the reliance interests are overstated. The administrative record contains substantial evidence that carriers are unable to predict risk adjustment transfers and thus cannot rely upon them.... NMHC's 2018 comments pointed out that every carrier in New Mexico built into its 2017 premium the assumption that it would make a risk adjustment payment -- a mathematical impossibility under the risk adjustment formula which always has a balance of payments in and out within a state. These rate-setting assumptions can only be explained by the carriers' inability to predict how the formula will work and a desire to have a cushion if the outcome were adverse.
Response at 19-20 (citing Hickey Decl. ¶¶ 52-55, at 11-12 (NMHC000873-74) ). Health Connections concludes by commenting: "[T]here is no reason to limit the vacatur to New Mexico. The regulations apply nationwide. Courts regularly vacate and enjoin enforcement of nationwide regulations even when challenged by an individual plaintiff." Response at 24 (citing Earth Island Inst. v. Ruthenbeck,
5. The Reply.
HHS filed a reply. See Defendants' Reply in Support of Their Motion to Alter or Amend the Judgment, filed May 17, 2018 (Doc. 68)("Reply"). In the Reply, HHS renews its argument that Health Connections "cannot challenge HHS's budget neutral approach to the risk adjustment program in the 2014-2017 Rules because neither it nor any other commenter objected to that approach with respect to those Rules," and that it adequately responded when the budget-neutral approach was challenged during the 2018 rulemaking. Reply at 2. HHS avers that no exception to the exhaustion requirement applies in this case. See Reply at 3-4.
HHS also renews its argument that, "because of black-letter constraints on the authority of agency officials to obligate federal funds absent or in advance of an appropriation," the agency had to "devise a risk adjustment program that could be funded with amounts the agency then knew would be available to make risk adjustment payments," i.e., risk adjustment charges. Reply at 5. HHS contends that, at least in its risk adjustment rule for 2018, it "explained that its budget-neutral approach to the risk adjustment program is necessitated by a lack of funding." Reply at 6. HHS also contends that the Wu Decl. confirms that "the absence of additional funding for the risk adjustment program" requires the agency to "balance payments and charges across plans." Reply at 6 (internal quotations omitted)(quoting Wu Decl. ¶ 9, at 3).
*1134HHS then recites the reasons why, in the agency's view, it could not have used its program management appropriation to design risk adjustment in a way that was not budget neutral:
[HHS] could not have relied on those funds because they (a) had not yet been appropriated when HHS was finalizing the rules at issue, (b) are for "responsibilities of CMS," not the responsibilities of the state governments for whom HHS acts under42 U.S.C. § 18063 , and (c) are designated for administrative and operational expenses of CMS, not program payments.
Reply at 8 (quoting Motion at 16). It also notes that the GAO decision Health Connections cites to "addressed a different program and an entirely different legal question"; it did not analyze "whether HHS itself could create a payment formula requiring expenditures exceeding amounts available in existing appropriations." Reply at 8-9 (emphasis in original)(citing Dep't of Health & Human Services-Risk Corridors Program, B-325630,
Finally, HHS argues that its "only error is a failure to adequately explain the rationale underlying a decision," so the Court should have followed "the presumptive approach," i.e., to "remand without vacatur." Reply at 10-11 (emphasis in original)(citing Motion at 22-24). HHS also asserts that "the Court did not weigh the equities or otherwise demonstrate that it was exercising that discretion here" in deciding whether to vacate. Reply at 11. It postulates that vacatur is not equitable here, because many issuers "have structured their business plans around the methodology as it currently exists and have specifically asked HHS to prioritize consistency and stability in the applicable methodology," and, even if the "methodology is not perfectly predicable, this does not militate in favor of depriving issuers of important payments they would otherwise receive." Reply at 11-12 (citing 2018 Final Rule, 81 Fed. Reg. at 94,085 ; Wu Decl. ¶¶ 13-22, at 4-6).
6. The Motion to Strike.
In addition to contesting the Motion's substance, Health Connections argues that the Wu Decl. is "improper extra-record evidence outside of the Court's purview in an Administrative Procedures Act case." Motion to Strike at 1. The APA, Health Connections asserts, limits judicial review to "the administrative record already in existence, not some new record made initially in the reviewing court." Strike Mem. at 5 (internal quotation marks omitted)(quoting Bar MK Ranches v. Yuetter,
7. The Motion to Strike Response.
HHS responds to Health Connections' Motion to Strike. See Defendants' Opposition to Plaintiff's Motion to Strike or for Discovery, filed May 7, 2018 (Doc. 64)("Motion to Strike Response"). HHS asserts that it provided the Wu Decl. "solely to inform the Court's exercise of its equitable discretion in setting a remedy if the Court concludes that the agency erred in its explanation of its use of a budget neutral approach." Motion to Strike Response at 2. HHS contends that the APA's "bar on extra-record evidence concerns judicial review of the merits of agency action, not the evidence a court may consider in determining how to exercise its equitable discretion in fashioning a remedy." Motion to Strike Response at 2. In fact, HHS contends, the Court should consider "the facts as they exist at the time of the judicial order" when fashioning its remedy. Motion to Strike Response at 6. HHS adds that "permit[ing] post-judgment discovery with regard to Mr. Wu's declaration" would be inappropriate, because "NMHC cites no legal authority for why it should be granted such post-judgment discovery, and it has said nothing about what facts it hopes to discover or what role they would play in the Court's evaluation of the remedial issues to which Mr. Wu's declaration was directed." Motion to Strike Response at 2. HHS also notes that the "Court has repeatedly held that motions to strike are disfavored and will only be granted where the motion concerns a pleading or a document prohibited by the Court's local rules." Motion to Strike Response at 3. The Wu. Decl., HHS avers, "falls into neither category, and the motion to strike should be denied." Motion to Strike Response at 3.
8. The Motion to Strike Reply.
Health Connections replies to the Motion to Strike Response. See Plaintiff's Reply Brief in Further Support of Its Motion to Strike the Declaration of Jeffrey Wu or in the Alternative, Grant Plaintiff Leave to Take Discovery, filed May 21, 2018 (Doc. 69)("Motion to Strike Reply"). First, Health Connections asserts that it is not moving to strike under rule 12(f) but, rather, under the Court's "inherent power to control [its] docket[ ]." Motion to Strike Reply at 2 (internal quotation marks omitted)(quoting Anthony v. BTR Auto. Sealing Sys., Inc.,
9. The First Notice of Supplemental Authority.
After the parties completed their briefing regarding the Motion and the Motion to Strike, Health Connections brought a recently decided case to the Court's attention. See Notice of Supplemental Authority at 1, filed June 15, 2018 (Doc. 74)("Notice"). According to Health Connections, in Moda Health Plan, Inc. v. United States,
10. The Notice Response.
HHS filed a response to the Notice. See Defendants' Response to Plaintiff's Notice of Supplemental Authority, filed June 20, 2018 (Doc. 75)("Notice Response"). HHS argues that Moda recognizes that Congress -- and not an administrative agency -- can create a legally enforceable obligation without providing an associated appropriation. See Notice Response at 1. HHS explains that "the Moda decision relied on
11. The Hearing.
The Court held a hearing on June 21, 2018. See Transcript of Motion Proceedings at 1 (taken June 21, 2018), filed July 3, 2018 (Doc. 77)("Tr."). At the hearing, HHS began by asserting that it is entitled to reconsideration of the judgment in the MOO under rule 59, because the judgment was "based on misapprehensions of the parties' positions and the controlling law, and that they result in manifest injustice." Tr. at 5:8-14 (Powers). HHS then repeated its argument that Health Connections "was foreclosed from challenging the budget neutrality determination for the 2014 *1137to 2017 rules," because "there were no comments to the agency in those rules challenging the decision to structure the program in a budget neutral fashion." Tr. at 6:23-7:3 (Powers). According to HHS, "there needs to be some sort of raising of the issue before the agency out of the simple fairness to the agency to allow them to apply their expertise in the first instance, and to explain themselves further or to change their decision as the case may be." Tr. at 7:11-16 (Powers). HHS conceded, however, that this issue exhaustion requirement is satisfied as long as someone -- and not necessarily "the particular party before the court" -- raises the issue before the agency. Tr. at 7:7-11 (Powers).
The Court then asked for Health Connections' perspective regarding HHS' argument on the issue exhaustion requirement. See Tr. at 9:22-10:2 (Court). Health Connections contended that "the comment rule exists to give the agency an opportunity to address an issue, and exercise its expertise and its reasoned decision making and rule making." Tr. at 10:5-8 (Bassman). Health Connections asserted that this rationale means that, "when an agency actually addresses an issue, and does it itself without needing a comment or product, there is no exhaustion requirement from commenters." Tr. at 10:9-12 (Bassman). See Tr. at 10:22-23 ("There is no requirement for a commenter to ask an agency to engage in analysis it already did."). Health Connections then averred that "the agency action being challenged [is] the decision the agency made in setting the original formula to use the statewide average premium instead of each issuer's own premium," and "[t]hat was a decision that the agency made itself and analyzed." Tr. at 10:13-19 (Bassman). Health Connections contended that there is no issue exhaustion issue, because HHS recognized and addressed the statewide average premium decision, so there was no need for commenters to challenge it from 2014-2016, and that, in 2017 and 2018, commenters had "directly challenged" the decision. Tr. at 15:12-15 (Bassman).
In reply, HHS clarified that "we don't contend there has been waiver with respect to challenging statewide average premium itself." Tr. at 16:8-10 (Powers).
The argument we're making is that there is waiver as to challenging the budget neutrality determination. Now, we recognize that [Health Connections] contends that it is challenging the statewide average premium. But the Court's decision relied on the fact that there was a failure to explain the budget neutrality determination. And we believe that ... is necessarily a determination that that decision, that antecedent decision, was arbitrary and capricious, because if the budget neutrality determination was simply a parameter of the program, we believe the agency was entitled to treat that as one of the kind of factors that it would consider in deciding how to proceed. And that would be a sufficient basis to support the use of the statewide average premium.
Tr. at 16:11-25 (Powers). HHS then contended that "the sua sponte exception" does not apply, because "[i]t concerns when the agency has actually addressed the particular challenge that's raised," which HHS asserted "is that the program could have been nonbudget neutral because it could have been backfilled with lump sum appropriations or with resort to the Judgment Fund." Tr. at 17:19-22 (Powers). HHS contended that it "did not address those points, so it has not sua sponte addressed" the issue. Tr. at 17:22-24 (Powers). HHS then averred that when it did address the budget neutrality issue, with the 2018 rule, it did so "sufficiently," in "an application of binding appropriations principles," because the rule "says that, '[i]n the absence of additional appropriations *1138the program will be operated in a budget neutral fashion.' " Tr. at 20:4-9 (quoting 2018 Final Rule, 81 Fed. Reg. at 94,101 ).
Health Connections rejoined:
[I]n coming up with the original 2014 rule, Your Honor's opinion does an extremely thorough analysis of what the agency said then. And what the agency said then was that it was under the belief that the Risk Adjustment Statute mandated budget neutrality, and that that was Congress' intent in the text of the statute. That was the explanation they gave. There was not an absence of explanation for why they took the position they did. It's laid out in the 2011 white paper. Defendants don't seem to be willing to defend anymore what the agency actually said in its contemporaneous reasoning. But that's the reason that was given.
This is not a case where the agency failed to explain itself. The agency wrote a very thick white paper explaining itself, and then detailed rule making in 2014.
Tr. at 23:3-20 (Bassman). Health Connections then noted that the justification to which HHS points for budget neutrality in the 2018 rule does not seem to be sufficient, because it raises the question whether "the agent [is] adopting a new position and rationale," Tr. at 25:3 (Bassman), because "the prior position was the statute mandated it," Tr. at 25:12-13 (Court). Health Connections stated: "If it were changing its rationale, then under the Supreme Court's opinion in Encino Motorcars[, LLC v. Navarro, --- U.S. ----,
HHS responded that budget neutrality is "mandated by the absence of the authority or appropriations that would have permitted the agency to operate the program in a different fashion," not that it was "commanded by Congress." Tr. at 32:6-10 (Powers). HHS then attempted to distinguish Moda:
[In t]he Moda decision by the Federal Circuit, the Court held or concluded that the Risk Corridor statute sets forth a payment formula that, you know, is mandatory and does create an obligation.
Now, as the plaintiff has raised, the DOJ has disagreed with that conclusion as well. But even if you take that conclusion on its face and move from there, that is something where Congress has loosened the purse strings, so to speak, rather than the agency. And under the appropriations clause of the Constitution and the Antideficiency Act, administrative agencies, executive officials, are limited in their capacity to obligate the government or to authorize spending in *1139advance of statutory authorization to do so. And so the fact that the Moda Court held that there could have been an obligation by product of statute is irrelevant to the question here of whether or not the agency itself could have created such an obligation of its own, you know, exercise of discretion. And I think that that really shows the distinguishing characteristics there, the dispositive distinguishing characteristics to Moda, and why that is largely irrelevant to the Court's consideration here of the issues.
Tr. at 32:15-33:13 (Powers). HHS also argued that CMS' lump sum appropriation was not available to fund risk adjustment payments, because "those lump sum appropriations are for things like salaries, for administrative expenses of the agency." Tr. at 43:6-8 (Powers). Alternatively, HHS asserted that, "even if they were available, and the Court were to conclude they're available, the agency's discretion to tap those funds for any particular program is not reviewable under the APA." Tr. at 43:11-15 (Powers). See Tr. at 55:22-25 (Powers)("[W]hen it comes to the allocation of a lump sum appropriation, the agency is not obligated to explain its decision making in regard to how it will allocate that.").
The Court then turned from the merits to the remedies issue. See Tr. at 57:1-10 (Court). The Court began by stating that its understanding is that "vacatur is the general rule" when a court concludes that a regulation is arbitrary and capricious, Tr. at 57:6 (Court), and HHS agreed that the Court's understanding is correct, see Tr. at 57:11-16 (Powers). The Court then asked HHS why -- in its view -- the general rule does not apply to this case. See Tr. at 57:17-21 (Court). HHS replied:
I think it comes from a weighing of the equities, of evaluating the error identified by the Court, which is a failure to explain the budget neutrality determination, and weighing the disruption that will be caused by vacatur, in light of the potential that that error can be rectified on remand.
And so I think that, you know, when one weighs those equities in that manner, the clear, you know, equitable outcome would be remand without vacatur, here the only area, as I said, is a failure to explain. And there is little doubt, in our view, that the agency can adequately resolve this and adequately explain the decision to treat the program in a budget neutral fashion.
Tr. at 57:22-58:11 (Powers). The Court asked HHS for "the strongest case that you would say that I got ... this relief issue wrong." Tr. at 59:20-22 (Court). HHS indicated that WildEarth Guardians v. United States Bureau of Land Management,
The Court then noted that its order "doesn't really impact the government," yet it appears that "nobody else seems to be too interested in this case." Tr. at 68:8-11 (Court). The order, in the Court's mind, "really impacts ... the recipients of these risk adjustment payments; that's who would want this to be a remand rather than a vacatur." Tr. at 68:11-14 (Court). The Court then asked: "Why have I not *1140seen, for example, Blue Cross and other large insurance companies that are the typical recipients of these payments coming in and telling me, [']Look, you've just got to change this part of the relief, because it's just going to be so inequitable to us.[']" Tr. at 68:19-24 (Court).
In response, HHS reiterated that "it's important to evaluate in reflection of the particular error identified," Tr. at 69:7-9 (Powers), although it agreed that the Court will also have to "consider the equities of the parties that are the recipients or payers of the funds," Tr. at 69:12-15 (Court, Powers). HHS argued that issuers "are expecting to receive hundreds of millions of dollars or at least millions of dollars in payment to help cover the exorbitant cost of covering higher than average actual risk folks [and] are going to be harmed by delays in receiving these funds, which they have anticipated receiving." Tr. at 71:2-8 (Powers). Vacatur of the rules for previous years in which charges and payments have been completed, HHS asserted, also "create[s] some uncertainty about the status of payments and charges already issued for those years." Tr. at 72:5-9 (Powers). Remanding without vacatur would, as HHS stated, "help the Department, because it would mean that there was no question that the rules had ever ceased to be effective, but rather that the agency then would undertake administrative process that would be consistent with the Court's opinion." Tr. at 72:13-17 (Powers). HHS also argued that its error -- lack of explanation on the budget neutrality decision -- could be fixed with just a remand. See Tr. at 76:1-5 (Powers).
The Court questioned why, if the error is "such a minor defect that ... it's not worth any sort of remedy," HHS has not corrected it. Tr. at 77:4-7 (Court). HHS responded: "[B]ecause we have been pursuing this relief here." Tr. at 77: 8-9 (Powers). Health Connections argued against HHS' classification of this case as "a failure to explain case. This is a case where the explanation given was found to be arbitrary and capricious." Tr. at 81:18-20 (Bassman). Health Connections asserted that vacatur is proper here, because HHS provided an explanation for budget neutrality and that explanation was insufficient under the APA. See Tr. at 82:4-13 (Bassman). Further, that "the Blue Crosses of the world" have not appeared as amici curiae, Health Connections averred, calls into doubt HHS' assertion that vacatur will cause a "great disruption." Tr. at 82:14-83:3 (Bassman). Heath Connections also averred that the big insurance companies receiving the payments do not really care that payments are halted, because they are "very well capitalized." Tr. at 85:1-16 (Bassman). Health Connections then noted that HHS has not identified any insurance company that is "actually upset that ... risk adjustment is right now on hold." Tr. at 83:10-12 (Bassman). Health Connections also argued the equities weigh in favor of vacatur, because HHS has not acted in the four months since the Court's MOO -- when it would have been easy to issue a notice of proposed rulemaking and review comments, especially in light of the fact that HHS has already "thought through these issues really well, [and] got their answers at the ready." Tr. at 83:13-84:10 (Bassman). See Tr. at 84:7-8 (Bassman)("The disruption is either a self-inflicted wound or an admission of a serious deficiency.").
HHS then moved to argue its alternative request that, because Health Connections "point[s] to the particular situation involving this state, ... we've also requested that Your Honor narrow the relief to New Mexico to only accord full relief to the plaintiff." Tr. at 70:6-10 (Powers). It asserted that "the Court in exercising its equitable discretion also has discretion to fashion narrower relief than a full vacatur,"
*1141Tr. at 90:16-18 (Powers), and should do so here so to avoid "having an effect on plans across the county that have nothing to do with the New Mexico marketplace" while still granting Health Connections' relief, Tr. at 90:25-91:2 (Powers). HHS argued that a limited vacatur is consistent with the APA, because "the APA does not disturb courts' equitable discretion to deny equitable relief on any ground." Tr. at 93:6-8 (Powers). Health Connections noted that HHS' rules are "not New Mexico-specific," Tr. at 94:1 (Bassman), but allowed "that for our particular injuries as one plaintiff, an order about New Mexico, as opposed to an order about the United States, would leave us equally whole and in the same position," Tr. at 94:5-9 (Bassman). Neither party could, however, point to a time where HHS has made a similar argument or any case in which a court has granted a limited vacatur. See Tr. at 91:14-92:18 (Court, Powers); Tr. at 94:14-21 (Court, Bassman).
As to the Motion to Strike, Health Connections argued that the Wu Decl. is "improper under Rule 59, because this is not newly discovered evidence that was not previously available" and, thus, HHS should have presented this evidence in the motion-for-summary-judgment briefing. Tr. at 96: 9-15 (Bassman). Health Connections also requested that, should the Court consider the Wu Decl., it should also consider the "additional affidavits and other materials" it attached to its Response. Tr. at 96:18-24 (Bassman). HHS conceded that it would be fair for the Court to consider the Wu Decl. only on the equity issues, but argued that the declaration is properly considered under rule 59 for the reasons stated in its Motion. See Tr. at 13-23 (Court, Powers). Health Connections then asked the Court for the opportunity to cross-examine Mr. Wu should the Court "engage in fact finding and find based on Mr. Wu's declaration that the defendants have proven some sort of remedy equity facts that entitle them to a change in relief." Tr. at 107:22-108:2 (Bassman). HHS then reiterated its position that "[t]here is no need for discovery." Tr. at 109:18-19 (Powers).
12. Suspension of Risk Adjustment Transfers.
On July 7, 2018, sixteen days after the Court's June 21, 2018, hearing, CMS suspended risk adjustment transfers for the 2017 benefits year, "[i]n light of the current status of litigation" in the United States District Court for the District of New Mexico. Center for Consumer Information & Insurance Oversight, Department of Health and Human Services, Summary Report on Permanent Risk Adjustment Transfers for the 2017 Benefit Year at 2, available at https://downloads.cms.gov/cciio/Summary-Report-Risk-Adjustment-2017.pdf (dated July 9, 2018), filed July 19, 2018 (Doc. 78-2)("2017 Risk Adjustment Summary Report").
"Billions of dollars in risk-adjustment payments and collections are now on hold," and AHIP stated that the Court's "decision will have serious consequences for millions of consumers." Zachary Tracer et al., Trump Health Officials Toss Obamacare Insurers Another Curveball, BLOOMBERG (July 7, 2018), https://www.bloomberg.com/news/articles/2018-07-07/cms-puts-on-hold-payments-to-insurers-that-cover-sicker-patients. CMS Administrator Seema Verma told the Wall Street Journal: "We are disappointed by the court's recent ruling." Stephanie Armour & Anna Wilde Matthews, Trump Administration Halts Payments Expected by Health Insurers, WALL STREET J. (July 7, 2018, 5:46 PM), https://www.wsj.com/articles/trump-administration-halts-payments-expected-by-health-insurers-1530992052 (internal quotation marks omitted). The Wall Street Journal notes that the risk adjustment program "plays a major role in the ACA markets" as, in 2016, the "transfers were valued at 11% of total premium dollars in the individual market." Armour & Matthews, supra. It also quoted AHIP as being "very discouraged by the new market disruption" and Blue Cross as stating that "this action will significantly increase 2019 premiums for millions of individuals and small business owners." Armour & Matthews, supra (internal quotation marks omitted). Deep Banerjee, analyst with S & P Global Ratings, stated that, because many insurers had already input estimates of the 2017 payouts into their books, the abrupt suspension of the risk adjustment payments "would be a big hit to their financial position." Armour & Matthews, supra (internal quotation marks omitted)(quoting Deep Banerjee). Tom Snook, actuary with Milliman Inc., notes that rising uncertainty in the market may provide cause for insurers to "argue that they need a bigger profit margin built into their 2019 rates." Armour & Matthews, supra. The New York Times mirrored much of what the Washington Post wrote, and also pointed to HHS officials saying: "[T]hey were caught between two conflicting court rulings," with the New Mexico Court voiding the current formula, and the Massachusetts court upholding it. Pear, supra.
Dr. Martin Hickey, the CEO of Health Connections when it filed the lawsuit, however, welcomes a revised methodology and states "it's always been unpredictable. We need a new formula that has less of a negative impact and encourages more entrance and competition in the marketplace." Marie C. Baca, NM Lawsuit Central to "Obamacare" Change, ALBUQUERQUE J. (July 9, 2018, 10:30 PM), https://www.abqjournal.com/1194625/nm-lawsuit-central-to-obamacare-change.html. Dr. Hickey also says the decision "will allow more companies to get into the insurance market. That will increase competition, and competition will help keep prices down." Pear, supra. The Albuquerque Journal notes that risk adjustment payments "were one of several factors that led to the demise of many of the" twenty CO-OPs, of the twenty-four which the ACA created, that are now defunct. Baca, supra. On July 9, 2018, the Albuquerque Journal also reached out to "two of New Mexico's large insurance organizations," who replied that "they were still weighing the consequences of the CMS announcement." Baca, supra. One of these organizations is BlueCross BlueShield of New Mexico, which wrote that it is "currently assessing the implications and any potential impacts as a result of this development." Baca, supra. Presbyterian Health Plan, another large insurance company in New Mexico, wrote "we do not believe it will impact our operations extensively." Baca, supra.
*1143In response to HHS' decision to halt the program, Nicholas Bagley, a professor of law at the University of Michigan Law School, notes that
the government had several options .... [I]t could have adopted a rule that addressed the judge's concerns. Second, it could have sought a stay of the judge's order while it prepared an appeal. Finally, the government might have narrowly interpreted the order to apply only to New Mexico Health connections, or any New Mexico insurer, and acted accordingly ....8
Joseph Ditzler, New Mexico Lawsuit Puts "Obamacare" Provision on Chopping Block, SANTA FE NEW MEXICAN (July 14, 2018), http://www.santafenewmexican.com/news/health_and_science/new-mexico-lawsuit-puts-obamacare-provision-on-chopping-block/article_edb2979d-edc7-594e-9e36-72b1a55d81e8.html. "The administration had options at its disposal that would cause less confusion and uncertainty for insurers than halting the program entirely." Ditzler, supra. As the Albuquerque Journal notes, HHS "could have just issued a new 'interim' rule," especially because it "already [has] such language handy." Catherine Rampell, Repealing Obamacare Didn't Work, So Republicans Try Sabotage, ALBUQUERQUE J. (July 13, 2018, 12:02 AM), https://www.abqjournal.com/1195956/repealing-obamacare-didnt-work-so-republicans-try-sabotage.html. "It is unclear why the administration didn't choose one of its less disruptive options, especially since previous court filings suggested it wanted to keep the program running. As of Monday morning, administration officials had not responded to my questions about their reasoning or timing." Rampell, supra. Professor Bagley also writes that the Court's MOO "wasn't compelling, to put it mildly" and that "the court's decision is weak."
The point of risk adjustment isn't to subsidize insurers with especially unhealthy populations. The point is to adjust risk among insurers. That's why risk adjustment has to be "budget neutral." It's totally senseless to compel CMS to explain something that was obvious to the agency and to every stakeholder in the process.10 As I see it, the *1144judge's decision typifies the kind of mistake that generalist judges make in reviewing complex rules that they only dimly understand.11
Bagley, supra. Professor Bagley notes the possibility "that the New Mexico court meant to impose a nationwide injunction, even though it never said so," but counters that "the Justice Department believes that district courts lack the power to enter that kind of nationwide injunction." Bagley, supra. With these considerations in mind, Bagley writes that he is shocked that HHS suspended the program and considers this an act of "sabotage." Bagley, supra.
13. The 2017 Risk Adjustment Summary Report.
Besides noting the suspension of the risk adjustment program for the 2017 benefit year, the 2017 Risk Adjustment Summary Report describes the program as "working as intended by more evenly spreading the financial risk borne by issuers *1145that enrolled higher-risk individuals, thereby protecting issuers against adverse selection within a market within a state and supporting them in offering products that serve all type of consumers." 2017 Risk Adjustment Summary Report at 2. It notes that the "absolute value of risk adjustment transfers as a percent of premiums decreased to 10 percent of premiums in the individual non-catastrophic risk pool and decreased to 5 percent of premiums in the small group risk pool." 2017 Risk Adjustment Summary Report at 2. CMS states that the program's transfers total about $10.4 billion: $5.2 billion in risk adjustment charges and $5.2 billion in risk adjustment payments. See 2017 Risk Adjustment Summary Report at 8. In addition to that total, the report "set[s] forth the 2017 benefit year risk adjustment transfer amounts by issuer." 2017 Risk Adjustment Summary Report at 11. See 2017 Risk Adjustment Summary Report at 11-28 (listing issuer-specific information). In New Mexico, for example, Blue Cross' Licensee Health Care Service Corporation
14. The First HHS Notice.
On July 19, 2018, HHS notified the Court that it "has begun the process of promulgating a new Interim Final Rule." Notice at 1, filed July 19, 2018 (Doc. 78)("First HHS Notice"). HHS states that it is "unable to provide further information at this time about the content of this rule as inter-agency review is still ongoing." HHS Notice at 1. HHS adds that it "will promptly advise the Court about further developments with respect to the rule and what effect, if any, the final rule will have on the pending motion for reconsideration," but the agency is "unable to provide an estimated timeframe for these events at present." HHS Notice at 1-2.
*114615. The Motion for Leave.
On July 19, 2018 -- four weeks after the Court asked why there were no amici curiae statements after HHS suggested that vacatur would disrupt risk adjustment collections and payments, and about a week and a half after HHS' suspension of the payments and collections -- two health insurance industry groups, AHIP and Blue Cross, sought leave to file a statement as amici curiae. See Motion for Leave at 1. AHIP is "the national trade association representing health plans," and Blue Cross is "the national association of Blue Cross Blue Shield health plans." Amici Motion at 1. AHIP and Blue Cross argue that the Court should permit them to file an amici statement, because "their perspective will provide the Court with a deeper and more comprehensive understanding of the issues involved in -- and the urgency of an immediate resolution of -- the pending" Motion. Amici Motion at 1. AHIP and Blue Cross add that they both "represent health plans that both pay and receive risk adjustment transfers." Amici Motion at 1-2.
AHIP and Blue Cross attach to the Motion for Leave the statement that they want the Court to consider. See Statement of Amici Curiae America's Health Insurance Plans and Blue Cross Blue Shield Association on New Developments in Support of Rule 59(e) Motion at 1, filed July 19, 2018 (Doc. 80-1)("Amici Statement"). The Amici Statement point to CMS "surpris[ing] all carriers by" halting collections and payments under the risk adjustment program, calling for a "new urgency to resolution -- and grant (at least as to remedy) -- of" the Motion. Amici Statement at 1. AHIP and Blue Cross assert that this decision "has serious and time-sensitive ramifications for the functioning of the market for individual and small group health plans," because the "decision deprives many AHIP and BCBSA members of substantial risk adjustment payments that the Affordable Care Act guarantees and that they have relied on in making critical plan offering and pricing decisions." Amici Statement at 2. They assert that the decision also harms those issuers who pay the risk adjustment transfers, because the decision "jeopardizes the future market participation of plans that receive risk adjustment payments, and the resulting change in risk-profile adversely affects the plans that remain and the calculation of their rates." Amici Statement at 2. Further, AHIP and Blue Cross argue that "the freeze creates profound uncertainty for future health plan pricing," which "could result in increased premiums for many health plans and reduced coverage options." Amici Statement at 2.
AHIP and Blue Cross also note that the nature of the risk adjustment program means that issuers must consider transfers under the program when setting their premiums and that deadlines for issuers -- such as those for changing their individual market submissions or electing to participate in the individual market Exchanges -- are fast approaching. See Amici Statement at 2-3. Finally, AHIP and Blue Cross state:
[I]t is unclear how health plans are to treat risk adjustment payments or transfers in the calculation of their medical loss ratio (MLR) .... Accurate and complete calculation of MLRs is essential in determining whether a plan has met certain legally mandated requirements and if the plan has any corresponding financial obligations (e.g. , whether or not direct rebates must be paid to consumers).
Amici Statement at 3-4. AHIP and Blue Cross thus "respectively urge the Court to resolve Defendants' Motion -- and grant the relief requested -- as soon as possible." Amici Statement at 4.
*114716. The Second HHS Notice.
On July 25, 2018, HHS notified the Court that it "issued a new Final Rule concerning the risk adjustment methodology for the 2017 benefit year, which will be effective upon its publication in the Federal Register." Notice at 1, filed July 25, 2018 (Doc. 81)("Second HHS Notice")(citing Centers for Medicare & Medicaid Services, CMS-9920-F, Adoption of the Methodology for the HHS-operated Permanent Risk Adjustment Program under the Patient Protection and Affordable Care Act for the 2017 Benefit Year, available at https://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/CMS-9920-F-7-24-18-final.pdf, filed July 25, 2018 (Doc. 81-1)("New 2017 Rule") ). HHS states that the New 2017 Rule "adopts the risk adjustment methodology previously promulgated by the agency for the 2017 benefit year," but responds to the MOO "by providing additional explanation of the agency's use of statewide average premium in the risk adjustment payment transfer formula, as well as the risk adjustment program's budget neutral design." Second HHS Notice at 1 (citing New 2017 Rule at 6-12).
With the New 2017 Rule, HHS "will now proceed with carrying out the risk adjustment program for the 2017 year, including collecting charges and making payments for the 2017 benefit year." Second HHS Notice at 2. HHS asserts the New 2017 Rule "further demonstrate[s] that the earlier 2017 benefit year rule at issue in this litigation was not arbitrary and capricious," and urges the Court to grant its Motion. Second HHS Notice at 2. Finally, HHS notes that it "intend[s] to issue a Notice of Proposed Rulemaking to propose and solicit comment on the risk adjustment methodology that will apply to the 2018 benefit year," and will provide more information "when appropriate." Second HHS Notice at 2 (citation omitted).
17. The Motion for Leave Opposition.
On August 1, 2018, Health Connections responded to the Motion for Leave, arguing why the Court should not grant AHIP and Blue Cross leave to file their Amici Statement. See New Mexico Health Connections' Opposition to America's Health Insurance Plans and Blue Cross Blue Shield Association's Motion for Leave to File Statement as Amici Curiae at 1, filed August 1, 2018 (Doc. 82)("Motion for Leave Opposition"). Health Connections notes that appearance as amici curiae is "a matter of privilege, not of right," so "the Court has broad discretion to deny" the Motion for Leave. Motion for Leave Opposition at 2 (citing Lopez v. Santa Fe Police Dep't, No. CIV 09-1214 JH/LFG, 2010 BL 17160, at *1 (D.N.M. Jan. 25, 2010)(Garcia, M.J.); WildEarth Guardians v. Lane, No. CIV 12-118 LFG/KBM,
Health Connections argues that the Motion for Leave is untimely, because it is filed in support of the Motion over three months after the Motion was filed, and the Federal Rules of Appellate Procedure require amicus briefs be filed within seven days of the filing of the principal brief it is supporting. See Motion for Leave Opposition at 4 (citing Fed. R. App. P. 29(a)(6) ). Health Connections also asserts that the proposed Amici Statement provides no useful information that will help the Court, because "the entire premise of the amicus statement was to apprise the Court of the now-ended Risk Adjustment Suspension." Motion for Leave Opposition at 5. Health Connections further argues against the granting of the Motion for Leave, because *1148"there is no indication that the parties to the law suit ... will not adequately present all relevant legal arguments, [so] there is no persuasive reason to grant" the Motion for Leave. Motion for Leave Opposition at 5 (internal quotation marks omitted)(quoting Am. Coll. of Obstetricians & Gynecologists, PA Section v. Thornburgh,
18. The Second HHS Notice Response.
Health Connections responded to the Second HHS Notice on August 1, 2018, to note that the New 2017 Rule moots the Motion as to the "reconsideration of the Court's findings on the 2017 rule." Plaintiff New Mexico Health Connections' Response to HHS's Notice at 1, filed August 1, 2018 (Doc. 83)("Second HHS Notice Response"). Health Connections also asserts that HHS' "cry of disruption was a purely self-inflicted wound," because it is clearly able to promulgate new rules. Second HHS Notice Response at 2. Finally, Health Connections argues the New 2017 Rule is improper under the APA, because HHS "delay[ed] taking action for months and then used an alleged timing emergency of its own creation to avoid going through notice and comment," and that the New 2017 Rule "underscores just how specious HHS's pending Rule 59 motion is." Second HHS Notice Response at 2.
19. The Third HHS Notice.
On August 8, 2018, HHS notified the Court that it "issued a new Notice of Proposed Rulemaking ('NPRM') concerning the risk adjustment methodology for the 2018 benefit year." Notice at 1, filed August 8, 2018 (Doc. 84)("Third HHS Notice")(citing Adoption of the Methodology for the HHS-Operated Permanent Risk Adjustment Program for the 2018 Benefit Year Proposed Rule,
20. The Third HHS Notice Response.
Health Connections responded to the Third HHS Notice on August 13, 2018. See Plaintiff New Mexico Health Connections' Response to HHS's Notice at 1, filed August 13, 2018 (Doc. 85)("Third HHS Notice *1149Response"). Health Connections asserts that, with the 2018 NPRM and New 2017 Rule, HHS' Motion "is now entirely moot as to 2017 and 2018." Third HHS Notice Response at 1. Health Connections further asserts that "[t]he issuance of both new regulations also betrays the hollowness of HHS's cry that this Court's remedy of vacatur will inevitably cause market disruption." Third HHS Notice Response at 2.
21. The Second Notice of Supplemental Authority.
Health Connections brings another case to the Court's attention: Mont. Health Co-op v. United States,
22. The Second Notice Response.
HHS responded to the Second Notice. See Defendants' Response to Plaintiff's Notice of Supplemental Authority at 1, filed November 13, 2018 (Doc. 89)("Second Notice Response"). HHS argues that Montana Health is "a decision largely irrelevant to the appropriations law arguments advanced in" the Motion. Second Notice Response at 1. HHS notes that Health Connections quotes parts of the decision that "are clear that the court's reasoning relied on the existence of a statutory obligation to make payments." Second Notice Response at 1-2 (emphasis in original)(citing Second Notice at 1-2). HHS asserts that this "reasoning has no bearing on this case because there is no dispute that the statute creating the risk adjustment program does not dictate a formula for mandatory payments." Second Notice Response at 2 (citing
LAW REGARDING MOTIONS TO RECONSIDER
Except where the Federal Rules of Civil Procedure specify, motions to reconsider in civil cases fall into three categories. First, there are motions to reconsider "filed within [twenty-eight]
Courts may treat motions for reconsideration as a rule 59(e) motion when the movant files within twenty-eight days of a court's entry of judgment. See Price v. Philpot,
A court cannot enlarge the time for filing a rule 59(e) motion. See Brock v. Citizens Bank of Clovis,
Whether a motion for reconsideration should be considered a motion under rule 59 or rule 60 is not only a question of timing, but also "depends on the reasons expressed by the movant." Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc.,
[o]n motion and just terms, the court may relieve a party or its legal representatives from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b) ;
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). Neither a rule 59 nor a rule 60 motion for reconsideration is an appropriate vehicle
to reargue an issue previously addressed by the court when the motion merely advances new arguments, or supporting facts which were available at the time of the original motion.... Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.
Servants of the Paraclete v. Does,
The United States Court of Appeals for the Tenth Circuit reviews a district court's ruling on a motion to alter or amend "under an abuse of discretion standard." Phelps v. Hamilton,
The Court has recently written on the issue of parties filing rule 59(e) motions which repeats arguments that they already made:
Under rule 59(e)'s framework, the Court is not restricted to rule 50(b)'s remedies and may alter the judgment when there is: "(1) an intervening change in the controlling law, (2) new evidence previously unavailable, [or] (3) the need to correct clear error or prevent manifest injustice." Servants of Paraclete v. Does,204 F.3d at 1012 . The Tenth Circuit has noted that motions to alter, amend, or reconsider should not rehash old arguments, or advance new arguments or facts that could have been raised earlier. See United States v. Amado, 841 F.3d [867, 871 (10th Cir. 2016) ] ("A proper motion to reconsider does not simply state facts previously available or make arguments previously made."); Servants of Paraclete v. Does,204 F.3d at 1012 ("Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law. It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing."). As the Court has already noted, the Defendants' Motion raises the same arguments that the Defendants previously argued during their Motion to Alter. The Court, however, also concludes that Servants of Paraclete v. Does, does not force the Court to deny a motion to amend or alter, simply because it raises identical issues; rather, it affords the Court the option to deny that motion for reasons of judicial efficiency. A court need not review a motion *1153to alter or amend with the same rigor if the motion raises issues already considered, because it would waste time by forcing a judge to rewrite an opinion already rendered. If, on the other hand, a party raises an identical issue on a motion to alter, and, upon the district judge's reflection, perhaps after passions have cooled, he or she concludes that he or she erred previously, Servants of Paraclete v. Does does not chain that district judge to an erroneous legal conclusion. There is no sound reason for a district judge to be unable to change a ruling he or she has made if he or she has become concerned that he or she is wrong.
Nelson v. City of Albuquerque,
LAW REGARDING JUDICIAL REVIEW OF AGENCY ACTION
Under the APA,
[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided , that any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be --
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
*1154(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
Under Olenhouse v. Commodity Credit Corp., "[r]eviews of agency action in the district courts [under the APA] must be processed as appeals . In such circumstances the district court should govern itself by referring to the Federal Rules of Appellate Procedure."
1. Reviewing Agency Factual Determinations.
Under the APA, a reviewing court must accept an agency's factual determinations in informal proceedings unless they are "arbitrary [or] capricious,"
In reviewing agency action under the arbitrary-or-capricious standard, a court considers the administrative record -- or at least those portions of the record that the parties provide -- and not materials outside of the record. See
To fulfill its function under the APA, a reviewing court should engage in a "thorough, probing, in-depth review" of the record before it when determining whether an agency's decision survives arbitrary-or-capricious review. Wyoming v. United States,
"[I]n determining whether the agency acted in an 'arbitrary and capricious manner,' we must ensure that the agency 'decision was based on a consideration of the relevant factors' and examine 'whether there has been a clear error of judgment.' " We consider an agency decision arbitrary and capricious if "the agency ... relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise."
Colo. Envtl. Coal. v. Dombeck,
2. Reviewing Agency Legal Interpretations.
In promulgating and enforcing regulations, agencies must interpret federal statutes, their own regulations, and the *1156Constitution of the United States of America, and Courts reviewing those interpretations apply three different deference standards, depending on the kind of law at issue. First, the federal judiciary accords considerable deference to an agency's interpretation of a statute that Congress has tasked it with enforcing. See United States v. Undetermined Quantities of Bottles of an Article of Veterinary Drug,
we must be guided by the directives regarding judicial review of administrative agency interpretations of their organic statutes laid down by the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. ,467 U.S. 837 ,104 S.Ct. 2778 ,81 L.Ed.2d 694 (1984). Those directives require that we first determine whether Congress has directly spoken to the precise question at issue. If the congressional intent is clear, we must give effect to that intent. If the statute is silent or ambiguous on that specific issue, we must determine whether the agency's answer is based on a permissible construction of the statute.
United States v. Undetermined Quantities of Bottles of an Article of Veterinary Drug,
Chevron's second step is all but toothless, because if the agency's decision makes it to step two, it is upheld almost without exception. See Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered,
Chevron's first step, in contrast, has bite, but there is substantial disagreement about what it means. In an earlier case, the Court noted the varying approaches that different Supreme Court Justices have taken in applying Chevron deference:
The Court notices a parallel between the doctrine of constitutional avoidance and the Chevron doctrine. Those Justices, such as Justice Scalia, who are most loyal to the doctrines and the most likely to apply them, are also the most likely to keep the "steps" of the doctrines separate: first, determining whether the statute is ambiguous; and, only then, assessing the merits of various permissible interpretations from the first step. These Justices are also the most likely to find that the statute is unambiguous, thus obviating the need to apply the second step of each doctrine. Those Justices more likely to find ambiguity in statutes are more likely to eschew applying the doctrines in the first place, out of their distaste for their second steps -- showing heavy deference to agencies for Chevron doctrine, and upholding facially overbroad statutes, for constitutional avoidance.
Griffin v. Bryant,
Second, when agencies interpret their own regulations -- to, for example, adjudicate whether a regulated party was in compliance with them -- courts accord agencies what is known as Auer or Seminole Rock deference. See Auer v. Robbins,
For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of "defer[ring] to an agency's interpretation of its own regulations." This is generally *1158called Seminole Rock or Auer deference.
....
The canonical formulation of Auer deference is that we will enforce an agency's interpretation of its own rules unless that interpretation is "plainly erroneous or inconsistent with the regulation." But of course whenever the agency's interpretation of the regulation is different from the fairest reading, it is in that sense "inconsistent" with the regulation. Obviously, that is not enough, or there would be nothing for Auer to do. In practice, Auer deference is Chevron deference applied to regulations rather than statutes. The agency's interpretation will be accepted if, though not the fairest reading of the regulation, it is a plausible reading -- within the scope of the ambiguity that the regulation contains.
Our cases have not put forward a persuasive justification for Auer deference. The first case to apply it, Seminole Rock, offered no justification whatever -- just the ipse dixit that "the administrative interpretation ... becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation." Our later cases provide two principal explanations, neither of which has much to be said for it. First, some cases say that the agency, as the drafter of the rule, will have some special insight into its intent when enacting it. The implied premise of this argument -- that what we are looking for is the agency's intent in adopting the rule -- is false. There is true of regulations what is true of statutes. As Justice Holmes put it: "[w]e do not inquire what the legislature meant; we ask only what the statute means." Whether governing rules are made by the national legislature or an administrative agency, we are bound by what they say , not by the unexpressed intention of those who made them.
The other rationale our cases provide is that the agency possesses special expertise in administering its " 'complex and highly technical regulatory program.' " That is true enough, and it leads to the conclusion that agencies and not courts should make regulations. But it has nothing to do with who should interpret regulations -- unless one believes that the purpose of interpretation is to make the regulatory program work in a fashion that the current leadership of the agency deems effective. Making regulatory programs effective is the purpose of rulemaking , in which the agency uses its "special expertise" to formulate the best rule. But the purpose of interpretation is to determine the fair meaning of the rule -- to "say what the law is." Not to make policy, but to determine what policy has been made and promulgated by the agency, to which the public owes obedience. Indeed, since the leadership of agencies (and hence the policy preferences of agencies) changes with Presidential administrations, an agency head can only be sure that the application of his "special expertise" to the issue addressed by a regulation will be given effect if we adhere to predictable principles of textual interpretation rather than defer to the "special expertise" of his successors. If we take agency enactments as written, the Executive has a stable background against which to write its rules and achieve the policy ends it thinks best.
Another conceivable justification for Auer deference, though not one that is to be found in our cases, is this: If it is reasonable to defer to agencies regarding the meaning of statutes that Congress enacted, as we do per Chevron , it is a fortiori reasonable to defer to them regarding the meaning of regulations *1159that they themselves crafted . To give an agency less control over the meaning of its own regulations than it has over the meaning of a congressionally enacted statute seems quite odd.
But it is not odd at all. The theory of Chevron (take it or leave it) is that when Congress gives an agency authority to administer a statute, including authority to issue interpretive regulations, it implicitly accords the agency a degree of discretion, which the courts must respect, regarding the meaning of the statute. While the implication of an agency power to clarify the statute is reasonable enough, there is surely no congressional implication that the agency can resolve ambiguities in its own regulations. For that would violate a fundamental principle of separation of powers -- that the power to write a law and the power to interpret it cannot rest in the same hands. "When the legislative and executive powers are united in the same person ... there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner." Congress cannot enlarge its own power through Chevron -- whatever it leaves vague in the statute will be worked out by someone else . Chevron represents a presumption about who, as between the Executive and the Judiciary, that someone else will be. (The Executive, by the way -- the competing political branch -- is the less congenial repository of the power as far as Congress is concerned.) So Congress's incentive is to speak as clearly as possible on the matters it regards as important.
But when an agency interprets its own rules -- that is something else. Then the power to prescribe is augmented by the power to interpret; and the incentive is to speak vaguely and broadly, so as to retain a "flexibility" that will enable "clarification" with retroactive effect. "It is perfectly understandable" for an agency to "issue vague regulations" if doing so will "maximiz[e] agency power." Combining the power to prescribe with the power to interpret is not a new evil: Blackstone condemned the practice of resolving doubts about "the construction of the Roman laws" by "stat[ing] the case to the emperor in writing, and tak[ing] his opinion upon it." And our Constitution did not mirror the British practice of using the House of Lords as a court of last resort, due in part to the fear that he who has "agency in passing bad laws" might operate in the "same spirit" in their interpretation. Auer deference encourages agencies to be "vague in framing regulations, with the plan of issuing 'interpretations' to create the intended new law without observance of notice and comment procedures." Auer is not a logical corollary to Chevron but a dangerous permission slip for the arrogation of power.
It is true enough that Auer deference has the same beneficial pragmatic effect as Chevron deference: The country need not endure the uncertainty produced by divergent views of numerous district courts and courts of appeals as to what is the fairest reading of the regulation, until a definitive answer is finally provided, years later, by this Court. The agency's view can be relied upon, unless it is, so to speak, beyond the pale. But the duration of the uncertainty produced by a vague regulation need not be as long as the uncertainty produced by a vague statute. For as soon as an interpretation uncongenial to the agency is pronounced by a district court, the agency can begin the process of amending the regulation to make its meaning entirely clear. The circumstances of this case demonstrate the point. While these cases were being briefed before us, EPA
*1160issued a rule designed to respond to the Court of Appeals judgment we are reviewing. It did so (by the standards of such things) relatively quickly: The decision below was handed down in May 2011, and in December 2012 the EPA published an amended rule setting forth in unmistakable terms the position it argues here. And there is another respect in which a lack of Chevron -type deference has less severe pragmatic consequences for rules than for statutes. In many cases, when an agency believes that its rule permits conduct that the text arguably forbids, it can simply exercise its discretion not to prosecute. That is not possible, of course, when, as here, a party harmed by the violation has standing to compel enforcement.
In any case, however great may be the efficiency gains derived from Auer deference, beneficial effect cannot justify a rule that not only has no principled basis but contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.
Decker v. Nw. Envtl. Def. Ctr.,
Last, courts afford agencies no deference in interpreting the Constitution. See U.S. West, Inc. v. FCC,
3. Waiving Sovereign Immunity.
The APA waives sovereign immunity with respect to non-monetary claims. See
An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States ....
The APA's sovereign immunity waiver for claims "seeking relief other than money damages" does not apply, however, "if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought."
LAW REGARDING ISSUE EXHAUSTION
As a general matter, parties need "to raise their issues before the agency during the administrative process in order to preserve those issues for judicial review." Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin.,
1. Administrative Adjudication.
Vis-à-vis administrative adjudication, "requirements of administrative issue exhaustion are largely creatures of statute" or regulations, but courts "have imposed an issue-exhaustion requirement even in the absence of a statute or regulation." Sims v. Apfel,
Ordinarily an appellate court does not give consideration to issues not raised below. For our procedural scheme contemplates that parties shall come to issue in the trial forum vested with authority to determine questions of fact.
*1162This is essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues which the trial tribunal is alone competent to decide; it is equally essential in order that litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence. And the basic reasons which support this general principle applicable to trial courts make it equally desirable that parties should have an opportunity to offer evidence on the general issues involved in the less formal proceedings before administrative agencies entrusted with the responsibility of fact finding. Recognition of this general principle has caused this Court to say on a number of occasions that the reviewing court should pass by, without decision, questions which were not urged before the Board of Tax Appeals.
Hormel v. Helvering,
We have recognized in more than a few decisions ... that orderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts.... Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.
United States v. L.A. Tucker Truck Lines, Inc.,
The Supreme Court has recognized, however, that the relationship between administrative tribunals and federal courts is not perfectly analogous to the relationship between trial courts and appellate courts. See Sims v. Apfel,
Where the parties are expected to develop the issues in an adversarial administrative proceeding, it seems to us that the rationale for requiring issue exhaustion is at its greatest.... Where, by contrast, an administrative proceeding is not adversarial, we think the reasons for a court to require issue exhaustion are much weaker.
Sims v. Apfel,
2. Administrative Rulemaking.
On the flip side, issue exhaustion vis-à-vis rulemaking through the comment process is largely a judicial, not statutory, imposition. See Lubbers, supra, at 124 (stating he has found only two statutes explicitly requiring issue exhaustion in the rulemaking context -- the Clean Air Act,
The Tenth Circuit has also discussed issue exhaustion in the rulemaking context. Where nobody has made their dissatisfaction with a particular issue known through the comment process, "such issue has been waived." N.M. Envtl. Improvement Div. v. Thomas,
[u]nless the issue with the proposed action is "so obvious that there is no need for a commentator to point [it] out," or some other extraordinary extenuating circumstance exists, failing to raise an issue during the administrative proceedings precludes a plaintiff from later raising *1164that objection for the first time in court.
Village of Logan v. U.S. Dep't of Interior,
The United States Court of Appeals for the Second Circuit has recognized:
Two kinds of exhaustion doctrine are currently applied by the courts, and the distinction between them is pivotal. Statutory exhaustion requirements are mandatory, and courts are not free to dispense with them. Common law (or "judicial") exhaustion doctrine, in contrast, recognizes judicial discretion to employ a broad array of exceptions that allow a plaintiff to bring his case in district court despite his abandonment of the administrative review process.
Bastek v. Federal Crop Ins.,
ANALYSIS
While the Court is not convinced that HHS' Motion satisfies rule 59(e) standards in asking the Court to reconsider its MOO, the Court has reconsidered its ruling. There are a number of problems with HHS' prior position and its current position regarding the risk adjustment program. HHS has flip-flopped between stating that Congress designed the program to be budget neutral and that the program must be budget neutral because of a lack of funding authority. Many of HHS' problems with the Court's MOO start with this change in position. Now that HHS has abandoned its view that the statute compelled budget neutrality, it must come to grips with the reality that it -- not Congress -- made the decision to embrace budget neutrality. Once HHS grips that reality, it must decide what to do following the Court's conclusion that this decision was arbitrary and capricious. The Court stands by both its initial determination that HHS' risk adjustment formula is arbitrary and capricious and that vacating the formula and remanding to HHS for further consideration is the appropriate remedy. Accordingly, the Court denies the Motion.
I. HHS' DECISION TO USE THE STATEWIDE AVERAGE PREMIUM IN ITS RISK ADJUSTMENT FORMULA -- INSTEAD OF EACH INSURER'S OWN AVERAGE PREMIUM -- WAS ARBITRARY AND CAPRICIOUS.
HHS began to consider how to structure risk adjustment -- and whether to use state average premiums or insurer average premiums when determining risk adjustment transfers -- on July 15, 2011:
We believe the payments and charges methodology should mitigate the financial impact of adverse selection on risk adjustment covered plans, while limiting overall issuer uncertainty. We have identified two methods that may achieve those goals -- multiplying plan average *1165actuarial risk by the State average normalized premiums and multiplying plan average actuarial risk by the specific premiums collected for each plan. To determine the precise value of payments and charges using State average normalized premiums, plan average premiums are first normalized to the actuarial value of their benefits by dividing each plan's premiums by the plan's actuarial value.....
Next, States would use these normalized average premiums as the basis for the State normalized average premiums, weighted by enrollee months, for all plans in a specific risk pool.... Next, the amount by which a plan's average actuarial risk deviates from the state average actuarial risk is calculated....
The alternative methodology uses plan-specific premiums as the basis for calculating the gross plan charges and gross plan payments, assuming that health plan premiums reflect State average actuarial risk and the expectation that risk adjustment accounts for favorable or adverse selection. Under this methodology, the deviation in actuarial risk is multiplied by the aggregated plan premiums to determine the gross plan charges and total plan payments that should be collected from or disbursed to health plans through risk adjustment.
Standard Related to Reinsurance, Risk Corridors and Risk Adjustment,
In the MOO, the Court identified an unexplained gap in HHS' reasoning. Throughout its decision-making process, HHS acted as if risk adjustment charges must equal risk adjustment payments. See 2014 Final Rule,
HHS now launches a three-pronged attack on the Court's conclusion. First, HHS argues that, "under black-letter principles of administrative law, HHS was not required to explain -- and NMHC was largely foreclosed from challenging -- HHS's budget-neutral approach to the risk adjustment program, because at no point during the 2014-2017 rulemakings did NMHC or any other commenter challenge or question that approach." Motion at 2. Second, HHS contends that "Congress's failure to appropriate additional funds for risk-adjustment payments" means risk adjustment charges were the only funds available for risk adjustment payments, so "HHS's budget-neutral approach was not a discretionary policy choice." Motion at 2-3. Third, HHS avers that, "even if HHS had possessed the requisite budget authority to implement the program in a manner that was not budget neutral ... any decision about whether to exercise that authority would not have been subject to judicial review." Motion at 3. Each of those prongs fails, however.
A. THE WAIVER RULE DOES NOT FORECLOSE HEALTH CONNECTIONS' CHALLENGE TO HHS' DECISION.
"One of the basic procedural requirements of administrative rulemaking is that an agency must give adequate reasons for its decisions." Encino Motorcars, LLC v. Navarro, --- U.S. ----,
Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies ....
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins.,
*1167Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins.,
The scope of an agency's obligation to explain -- vis-à-vis informal rulemaking -- depends, in part, on the notice and comment process. The agency must publish its proposed rule in the Federal Register, see
If no commenter raises a potential problem, however, then the agency has no duty to address that problem or to "respond" to a non-existent comment. See Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin.,
The EPA solicited comments on the very issue that [the plaintiff, EID,] now protests. Neither EID nor anyone else advanced any dissatisfaction to the EPA through comments and documents in the record. Under these circumstances, we hold that such issue has been waived. If EID wished that the EPA consider a different formula which required EPA to study other information, it had a responsibility to place such information in the record.
EID was obligated to make its record before the agency. It failed to do so. Thus, we decline to consider any inferences which EID urges upon us for the first time on appeal.
N.M. Envtl. Improvement Div. v. Thomas,
The waiver rule does not apply, however, when an agency, for whatever reason, considers a potential issue. See Garcia-Carbajal v. Holder,
HHS considered whether to use each insurer's average premium instead of state average premiums when calculating risk adjustment transfers. See Standards,
In the Risk Adjustment White Paper, we presented several approaches for calculating risk adjustment transfers using the State average premium and plans' own premiums. The approaches that used plans' own premiums resulted in unbalanced payment transfers, requiring a balancing adjustment to yield transfers that net to zero. These examples also demonstrated that the balancing adjustments could introduce differences in premiums across plans that were not consistent with features of the plan .... A balancing adjustment would likely vary from year to year, and could add uncertainty to the rate development process ....
Therefore, we propose a payment transfer formula that is based on the State average premium for the applicable market, as described in section III.B.3.a. of this proposed rule. The State average premium provides a straightforward and predictable benchmark for estimating transfers. As shown in the examples in the Risk Adjustment White Paper, transfers net to zero when the State average premium is used as the basis for calculating transfers.
2014 Proposed Rule,
HHS argues, on the contrary, that "the Court's holding is based on a claim ... that HHS's budget-neutral approach was independently arbitrary and capricious for lack of a satisfactory explanation for the basis of that approach." Motion at 11. That *1169characterization of the MOO is not accurate, because the Court considered budget neutrality only insofar as HHS implicitly used budget neutrality to justify its decision to base its risk adjustment formula on statewide average premiums. See MOO at 67, 312 F.Supp.3d at 1209 ("That HHS erroneously reads the ACA's risk adjustment provisions to require risk adjustment payments equal risk adjustment charges infects its analysis of the relative merits of using a state's average premium when calculating risk adjustment transfers instead of using a plan's own premium."). Specifically, HHS justified its decision to structure its risk adjustment formula using statewide average premiums by identifying problems that an alternative formula using each insurer's average premium would produce. See 2014 Proposed Rule,
In an effort to discern HHS' analytical path, the Court considered the possibility that HHS' budget-neutrality assumption reflects a conscious decision on the agency's part to structure risk adjustment in a budget neutral way. See MOO at 66-68, 312 F.Supp.3d at 1209. See also Encino Motorcars, LLC v. Navarro,
B. HHS WAS FREE TO ADOPT A RISK ADJUSTMENT FORMULA THAT DID NOT, AS A MATTER OF MATHEMATICS, GUARANTEE BUDGET NEUTRALITY.
HHS argues that "binding principles of constitutional and appropriations law ... mandated budget neutrality in light of Congress's failure to appropriate additional funds." Motion at 13. It follows, according to HHS, that the agency's assumption that risk adjustment payments must equal risk adjustment charges was valid, so the agency's decision to base its risk adjustment formula on state average premiums -- which relied on that assumption -- was not arbitrary and capricious.
That keystone assertion is false. The ACA contemplates risk adjustment as a state-run program, see
Instead, HHS must rely on the CMS program management appropriation to fund risk adjustment payments when HHS implements risk adjustment on behalf of the states.
No federal agency or court has addressed whether the $3,669,744,000 lump sum portion of CMS' program management appropriation can fund risk adjustment, but authorities analyzing whether that appropriation can fund an analogous premium stabilization program -- the risk corridors program -- confirm the Court's conclusion regarding risk adjustment. The ACA directs HHS to "establish and administer a program of risk corridors for calendar years 2014, 2015, and 2016."
On February 7, 2014, then-Senator Jeff Sessions requested an opinion from the GAO "regarding the availability of appropriations to make payments to qualified health plans pursuant to ...
The Federal Circuit's decision in Moda also supports the Court's conclusion that the Program Management Appropriation is available for risk adjustment payments. According to the Federal Circuit, the GAO Report accurately identifies the two possible funding sources for risk corridors payment -- the user fees that CMS collects, e.g., risk corridors charges, and the $3,669,744,000 lump sum portion of the Program Management Appropriation, see Moda,
HHS tries to distinguish Moda by observing that the Anti-Deficiency Act restrains *1174the agency's ability to design its risk adjustment formula in a way that is not budget neutral, whereas Congress faced no such restriction when it enacted the risk corridors formula. See Notice Response at 1-2. Whether the Anti-Deficiency Act applies, however, is irrelevant to whether the lump sum portion of the Program Management Appropriation is available for risk adjustment payments. The Anti-Deficiency Act prevents "[a]n officer or employee of the United States Government" from incurring obligations "exceeding an amount available in an appropriation" or "before an appropriation is made"; it says nothing about whether particular funds are available for a particular purpose.
C. WHETHER TO USE STATEWIDE AVERAGE PREMIUMS IN ITS RISK ADJUSTMENT FORMULA IS NOT A DECISION COMMITTED SOLELY TO HHS' DISCRETION.
HHS argues that, even if it "had the authority to design the risk adjustment program in a non-budget neutral matter, its decision not to exercise that authority would be committed to agency discretion as a matter of law and thus exempted from judicial review." Motion at 19. HHS is correct that courts cannot substantively review an agency's choices regarding how to spend lump sum appropriations. See Lincoln v. Vigil,
The Court does not agree with HHS' argument, for two distinct reasons. First, in its MOO, the Court reviews HHS' decision to use statewide average premiums rather than each insurer's own average premium in the agency's risk adjustment formula, and not a decision to spend the *1175lump sum portion of the Program Management Appropriation on other priorities. See MOO at 67, 312 F.Supp.3d at 1209 (reviewing HHS' "analysis of the relative merits of using a state's average premium when calculating risk adjustment transfers instead of using a plan's own premium"). Far from reviewing an agency decision regarding budget priorities, the Court concluded that HHS made no such decision when crafting its risk adjustment formula. See MOO at 68, 312 F.Supp.3d at 1210 ("HHS never articulates any public policy decision to operate risk adjustment in a budget neutral way; HHS' only decision is to comply with a supposed statutory requirement."). Second, the Court does not, in its MOO, take issue with the substance of HHS' decision; instead, it concludes that HHS fails to satisfactorily explain its decision's rationale. See MOO at 70, 312 F.Supp.3d at 1211 ("HHS offers, in its briefing, sound policy reasons for using the statewide average premium instead of the issuer's own premium ... the agency does not, however articulate those reasons in the [administrative] record."). Hence, the Court does not -- in concluding that HHS acted arbitrarily and capriciously -- violate the APA by reviewing an action that is "committed to agency discretion by law."
II. VACATUR IS THE APPROPRIATE REMEDY.
According to the Tenth Circuit, when a Court concludes that an agency action is arbitrary and capricious, "[v]acatur of agency action is a common, and often appropriate form of injunctive relief granted by district courts." WildEarth Guardians v. U.S. Bureau of Land Mgmt.,
According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
eBay Inc. v. MercExchange, L.L.C.,
The Tenth Circuit has not, however, performed the traditional four-factor inquiry when vacating agency action -- or ordering a district court to vacate agency action on remand -- under the APA, which suggests that the Tenth Circuit does not fully treat vacatur as injunctive relief. See, e.g., Utah Envtl. Cong. v. Bosworth,
An injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course. If a less drastic remedy (such as partial or complete vacatur of [the agency's] deregulation decision) was sufficient to redress respondents' injury, no recourse to the additional and extraordinary relief of an injunction was warranted.
Monsanto Co. v. Geertson Seed Farms,
Instead of applying the traditional test for injunctive relief, the United States Court of Appeals for the District of Columbia Circuit has developed a test to determine when a court should remand without vacatur of the agency's action. "The decision whether to vacate depends on 'the seriousness of the order's deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that may itself be changed.' " Allied-Signal, Inc. v. Nuclear Regulatory Comm'n,
The Court set aside HHS' 2014-2018 rules for its failure to explain its budget-neutral approach to the program, which infected its decisionmaking with respect to its choice to use the statewide average premium in its formula. See supra at 1168-69. Accordingly, with no Tenth Circuit guidance on the issue of appropriate remedy here, the Court finds the District of Columbia Circuit's test persuasive and will use it to evaluate the appropriate remedy for HHS' error. On balance, however, the Court still concludes that vacatur is the appropriate remedy. Further, there are no grounds to limit this vacatur to the state of New Mexico.
A. THE DEFICIENCIES IN HHS' 2014-2018 RISK ADJUSTMENT RULES OUTWEIGH ANY DISRUPTIVE CONSEQUENCES THAT VACATUR MAY IMPOSE.
Where "there is at least a serious possibility that the [agency] will be able to substantiate its decision on remand" and "the consequences of vacating may be quite disruptive," the equities point to remanding to the agency without vacatur. Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n,
*1178Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs,
The Court is cognizant that HHS started this rulemaking process with the belief that the states would be running their own risk adjustment programs, as the statute contemplates. See
While it is conceivable that HHS may provide sound reasons for operating the program in a budget-neutral fashion, especially because it purports to have done so for 2019, see HHS Notice of Benefit and Payment Parameters for 2019,
The 2014-2018 rules are deficient in that HHS promulgated them with the erroneous belief that the ACA required the risk adjustment program be budget neutral. See MOO at 67-68, 312 F.Supp.3d at 1209-10. This error, then, is much more than just the agency's failure to provide an explanation for its budget neutrality decision; this flaw is the agency making all its subsequent decisions assuming budget neutrality is a given and not making any decision on budget neutrality itself. There is no attempt to justify budget neutrality until 2016, in the 2018 Final Rule, when commenters noted that budget neutrality may not be furthering the risk adjustment program's goals. 2018 Final Rule, 81 Fed. Reg. at 94,101 (A.R.009638). Here, HHS provides an explanation which the Court finds inadequate to support the budget-neutrality decision -- "the absence of additional funding" -- but again this explanation contradicts HHS' position that Congress designed the statute to be budget *1180neutral. 2018 Final Rule, 81 Fed. Reg. at 94,101 (A.R.009638). See supra at 1170-74. While the Court is mindful that operating the program in a budget-neutral manner and using the statewide average premium to promote that goal may be the correct choice, that choice is one the agency must actually make instead of taking for granted. Building a rule on an erroneous assumption -- not even a conscious decision -- is at the heart of an arbitrary and capricious action, especially where the assumption may not promote the authorizing statute's goals. See WildEarth Guardians v. U.S. Bureau of Land Mgmt.,
Further, it is hard for the Court to determine the consequences of vacating the 2014-2018 rules, because HHS has not enlightened the Court on this front. To attempt to determine what will likely happen if it vacates the rule, and properly weigh the equities, the Court concludes it is proper to consider all the information it can as to better make an informed decision. It will thus consider the Wu Decl. and the Amici Statement to gain a sense of vacatur's consequences. These sources, however, are also unhelpful in enlightening the Court's understanding of the consequences.
The Wu Decl. first states that vacatur will prevent CMS from "invoic[ing] issuers, collect[ing] charges, or mak[ing] billions of dollars of disbursements in risk adjustment payments" for 2017 and 2018. Wu Decl. ¶ 13, at 4. Wu, Associate Deputy Director for Policy Coordination at the Center for Consumer Information and Insurance Oversight, makes this statement under oath. While CMS did initially state it would suspend payments in July, two and a half weeks later CMS expressly decided not to suspend payments. Once again, HHS told the Court something that, like every time HHS speaks to the Court, reveals its new position. The Court's experience with HHS' changing positions has not been good. HHS' hyperbole does not appear to be an equity that weighs against vacatur.
Second, Wu states that, for 2015-2016, "vacatur raises questions about the legal status of these already-administered payments and charges." Wu Decl. ¶ 14, at 4. Vacatur does not, itself, raise questions about the legal status of prior payments and charges; the merits of the decision of the MOO -- not just the remedies analysis -- has already done that. It is likely that payees like Health Connections will seek this money back, regardless of what the Court chooses on the remedy.
Third, HHS then tries to frighten the Court by saying its decision will cause the sky to fall. Wu states that both consequences he has claimed may "create strong financial incentives for insurance companies to raise their rates, avoid sick enrollees, or otherwise attempt to insulate themselves against the financial uncertainty of riskier enrollees." Wu Decl. ¶ 15, at 4. Wu states that vacatur of the risk adjustment methodology will also impact the risk corridors program, forcing revisions of "billions of dollars of risk corridors calculations," disrupting expectations, and burdening health insurance companies. Wu Decl. ¶ 19, at 5. According to Wu, both the risk adjustment and risk corridors revisions will impact companies' medical loss ratio reporting as well. See Wu Decl. ¶ 21, at 5.
The statements in the Wu Decl. do not persuade the Court. The problem with Wu's predictions is that the Court issued its decision on February 28, 2018, and none of what Wu has predicted has come true. He has proven to be a poor prognosticator. First, insurance premiums are predicted to rise less in 2019 than they have in the past, and may go down for a few *1181states. See Alison Kodjak, Analysts Predict Health Care Marketplace Premiums Will Stabilize for 2019 Coverage, NPR (Sept. 3, 2018, 5:06 AM), https://www.npr.org/sections/health-shots/2018/09/03/643457582/analysts-predict-health-care-marketplace-premiums-will-stabilize-in-2019. Second, insurance companies cannot avoid sick enrollees, because the ACA still requires them to cover people with pre-existing health connections and prevents them from charging these enrollees higher premiums.
Third, the Court notes that HHS has not been prevented in collecting payments under the risk adjustment program for 2017 and 2018, because it promulgated a new rule for 2017, and is in the process of doing so for 2018. See Second HHS Notice at 1-2; Third HHS Notice at 1. Thus, although HHS temporarily suspended taking payments under the risk adjustment program -- for seventeen days -- it is now collecting and dispersing money owed. See Second HHS Notice at 2. The Court does agree that there is uncertainty as to the legality of payments collected and made during 2014-2016, but without knowing more about this issue it is difficult for the Court to consider this in equity.
Finally, the Amici Statement discusses only AHIP and Blue Cross' surprise with HHS' suspension of the risk adjustment program and how the suspension affects the market. See Amici Statement at 1-2. It notes that the suspension "jeopardizes the future market participation of plans" and "creates profound uncertainty for future health plan pricing." Amici Statement at 2. The Amici Statement states that the suspension also brings uncertainty into insurers' "calculation of their medical loss ratio." Amici Statement at 3. While the Court appreciates that AHIP and Blue Cross filed this Statement, the concerns are mooted now, because the risk adjustment program is no longer suspended. Accordingly, none of these concerns add anything to the Court's equitable considerations. The Court notes, however, that, because the Amici Statement came only after HHS suspended the program and does not discuss any harms to insurance companies resulting from vacatur of the prior years, it appears that insurance companies -- at least AHIP and Blue Cross -- do not seem to be concerned by this issue of remedies. The insurance companies did not file the Amici Statement after the Court issued its MOO on February 28, 2018, but only after HHS suspended payments.
In sum, it is difficult for the Court to determine how disruptive vacatur will be. So far -- nearly eight months after the MOO -- vacatur has not been very disruptive. Although HHS could arguably justify budget neutrality and the resulting decision to use the statewide average premium if the Court remanded without vacating the rules, the Court concludes this remedy would be contrary to the APA's mandate. HHS operated with the conclusion that the program had to be budget neutral, and all its reasoned decisionmaking stemmed from this erroneous assumption -- until commenters noted that budget neutrality may not promote the program's goals. This combined with HHS' later justification that it did not have money to operate the program any differently -- which again, was erroneous -- counsels that the Court should vacate the 2014-2018 rules. This situation is not a case where the Court did not have sufficient information to decide whether HHS had acted arbitrarily and capriciously. There is a sufficient record here to conclude HHS acted arbitrarily and capriciously. HHS merely providing additional justification for budget neutrality and the use of the statewide average premium would not fix its error in assuming that the ACA required the risk adjustment program to be budget neutral. HHS must consciously make the decision to conduct the program in a budget-neutral manner and provide sufficient justification for this decision.
*1183Finally, the Court cannot, in an intellectually honest manner, limit vacatur of the rules to the state of New Mexico. The Court does not know how a court vacates a rule only as to one state, one district, or one party. The main Department of Justice lawyer advised that he was not sure if the department had ever asked for relief to be limited to one state before doing so in this case and did not know of anyone else in the United States asking for such relief. See Tr. at 91:14-92:7 (Court, Powers). The rules do not apply only to New Mexico; they apply nationwide and, thus, have nationwide harms. Further, the deficiencies with the rules are not specific to New Mexico but, again, rather inherent in the rules themselves. The Court vacates only the 2014-2018 rules as to the statewide average premium rules,
*1186IT IS ORDERED that: (i) the Defendants' Motion to Alter or Amend Judgment Pursuant to Federal Rule of Civil Procedure 59(e), filed March 28, 2018 (Doc. 57), is denied; (ii) the Plaintiff's Motion to Strike the Declaration of Jeffrey Wu or in the Alternative Grant Plaintiff Leave to Take Discovery, filed April 23, 2018 (Doc. 61), is denied; and (iii) the Motion of America's Health Insurance Plans and Blue Cross Blue Shield Association for Leave to File Statement on New Developments in *1187Support of Rule 59(e) Motion as Amici Curiae, filed July 19, 2018 (Doc. 80), is granted.
HHS is not the only Defendant in this case, but Plaintiff New Mexico Health Connections challenges the agency's actions, so the Court will, for simplicity's sake, refer to HHS only.
The Court refers to HHS' published risk adjustment methodology in general terms even though HHS has five different published risk adjustment methodologies at issue, one for each year from 2014 to 2018, because, while those methodologies differ in detail, they have the same basic structure. See, e.g., 2017 Final Rule, 81 Fed. Reg. at 12,230 (A.R.007774) ("Although we did not propose to change the payment transfer formula from what was finalized in the 2014 Payment Notice ... we believe it is useful to republish the formula in its entirety, since, as noted above, we are recalibrating the HHS risk adjustment model."). Where the differences between HHS' five payment methodologies are important, the Court will be more specific.
ACA established the CO-OP program to provide loans and grants to new nonprofit health-insurance issuers, which fosters competition in the individual health-insurance market. See
In its MOO, the Court summarized and analyzed Health Connections' MSJ arguments. See MOO at 14-22, 312 F.Supp.3d at 1177-82 (setting out those arguments); MOO at 59-82, 312 F.Supp.3d at 1207-18 (analyzing those arguments). The Court now presents only the details that relate to the Motion and the Motion to Strike.
Judge Saylor presided over a similar challenge to HHS' risk adjustment program under the APA that a different nonprofit health-insurance provider brought, holding that HHS "acted within the bounds of its authority" and thus granting HHS' motion for summary judgment.
Ultimately, HHS chose to use the statewide average premium, subject to certain cost-factor adjustments. It did so because it concluded that such an approach would result in balanced transfers, was a "straightforward and predictable benchmark," and would best compensate plans for liability differences due to risk selection, as opposed to other cost factors. Those articulated reasons have a clearly rational connection to HHS's choice. Thus, the record demonstrates that the proposal to use a plan's own premium was actively considered and rejected on rational grounds.
Judge Saylor then tackled the question "whether HHS's decision to attempt to operate the risk-adjustment program in a budget-neutral way was unreasonable or arbitrary," concluding, "[i]t was not."
[A] showing that there are other ways a budget-neutral program might have been achieved is not a showing that what HHS actually did was unreasonable or arbitrary. The risk-adjustment statute may be reasonably read as intending to level the playing field by spreading the risk among insurers, not by having the government subsidize the costs of insuring less-healthy people ....
Minuteman Health also challenged HHS' transfer formula on three other points: (i) for "systemically underestimat[ing] the costs of insuring members who are not diagnosed with a condition associated with an HCC [ (hierarchical condition category) ]"; (ii) for "miss[ing] enrollees who are eligible for HCC classification" by failing to use prescription-drug data, until 2018, and failing to account for partial year enrollees who were undiagnosed, until 2017; and (iii) for making "lower-cost bronze plans economically unviable."
With regards to comments brought requiring HHS to address budget neutrality, this Court agrees with Judge Saylor that there was "no significant comment on the topic that HHS was required to address in 2014."
HHS articulates several reasons why its program management appropriation is not available to fund risk adjustment:
First, as discussed above, [the risk adjustment program] is designed to be implemented by the states. The lump sum is an appropriation to CMS, which has no authority to transfer such funds to state governments. Second, as the underlying budget requests reflect, the Program Management lump sum is for program management expenses , such as administrative costs for various CMS programs such as Medicaid, Medicare, the Children's Health Insurance Program, and the ACA's insurance market reforms -- not for the program payments themselves, which would vastly exceed the amount of the lump sum. Third, the lump sum appropriation for each year was enacted after the applicable Benefit Rule authorizing payments for that year. Thus, the later-enacted lump sum could not have authorized HHS to deviate from the budget-neutral design of the ACA in those Benefit Rules.
Motion at 16 (emphasis in original)(citations and footnotes omitted).
The Court takes judicial notice of the 2017 Risk Adjustment Summary Report's contents, because they "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned," Fed. R. Evid. 201(b), i.e., a federal agency's website, see New Mexico ex rel. Richardson v. Bureau of Land Mgmt.,
Professor Bagley suggests that HHS should have ignored the Court's vacatur order and limit the effects of the Court's MOO just to New Mexico. See Ditzler, supra. The Court appreciates that HHS did not do what Professor Bagley suggests. Instead, HHS did what the United States and any party should do when it loses, in an orderly society, and filed a motion to reconsider the remedy and limit the remedy, not just ignore the order and give it a dishonest reading.
When Professor Bagley calls the Court's analysis in its MOO "weak," he underscores what is wrong with much of legal scholarship, and, indeed, scholarship in general in modern law schools and universities. The academic world should offer something more than an editorial in the newspaper. Scholarship is useful, and to be given respect and deference, when it does the hard work of statistical research or analysis the courts or parties may not be able to do, such as James Q. Wilson used to do. See, e.g., George L. Kelling & James Q. Wilson, Broken Windows: The Police and Neighborhood Safety, Atlantic (March 1982), https://www.theatlantic.com/magazine/archive/1982/03/broken-windows/304465/?single_age=true.
Professor Bagley makes one observation with which the Court agrees and finds helpful. Professor Bagley argues that HHS should not have had to discuss the need of budget neutrality, because that need is so patently obvious. He does not argue that HHS explained the rationale for its budget neutral rule. The Court draws some comfort from his reading of the record, because the Court agrees that HHS did not explain its rationale of its rule.
The Court disagrees with Professor Bagley, however, in that budget neutrality is so obvious that HHS did not have to address it. First, HHS itself does not make the argument that "risk adjustment has to be 'budget neutral' " because of its goal "to adjust risk among insurers," Bagley, supra; rather, HHS argues the statute "designed" the program to be budget neutral and that budget neutrality was mandated by the lack of congressional appropriations, Motion at 12. Second, HHS therefore does not argue that the need for operating the risk adjustment program in a budget-neutral manner was so obvious that it did not need to explain its decision to do so -- HHS' argument is that it did not need to explain this decision because no commenter raised this issue. See Motion at 9-10. Third, even if the need for budget neutrality were obvious, HHS would still need to explain this decision for there is no obviousness exception to an agency's explanation of a rule. See
While Professor Bagley criticizes the rulings of generalists such as federal trial judges, he does not offer any alternatives. He does not suggest whether law professors, a specialist court, or a district judge in another part of the country would be better able to review and understand complex rules. The history of specialist courts, such as the United States Court of Appeals for the Federal Circuit, has not been uniformly good in this country, and the specialty courts have been criticized. See, e.g., Laura G. Pedraza-Fariña, Understanding the Federal Circuit: An Expert Community Approach,
Health Care Service Corporation runs Blue Cross' insurance plans in New Mexico as its licensee. See Company Information, BlueCross BlueShield of New Mexico , https://www.bcbsnm.com/company-info (last visited Oct. 9, 2018)("Blue Cross and Blue Shield of New Mexico, a division of Health Care Service Corporation, a Mutual Legal Reserve Company, an independent licensee of the Blue Cross and Blue Shield Association."); Who We Are: Overview, Health Care Service Corporation , http://www.hcsc.com/who-we-are (last visited Oct. 9, 2018)("Health Care Service Corporation, a Mutual Legal Reserve Company (HCSC), and an Independent Licensee of the Blue Cross and Blue Shield Association, is the largest customer-owned health insurer in the United States and fourth largest overall, operating through our Blue Cross and Blue Shield® Plans in Illinois, Montana, New Mexico, Oklahoma, and Texas.").
CHRISTUS Health is relatively small, New Mexico, Texas, Arkansas, and Louisiana in the United States. See About Us, CHRISTUS Health , https://www.christushealth.org/about (last visited Oct. 9, 2018). It is a "not-for-profit system made up of more than 600 centers, including long-term care facilities, community hospitals, walk-in clinics and health ministries." About Us, supra.
Former rule 59 provided for a ten-day period after entry of judgment to file motions to reconsider. In 2009, the rule was amended, extending the filing period to twenty-eight days:
Experience has proved that in many cases it is not possible to prepare a satisfactory post-judgment motion in 10 days, even under the former rule that excluded intermediate Saturdays, Sundays, and legal holidays. These time periods are particularly sensitive because Appellate Rule 4 integrates the time to appeal with a timely motion under these rules. Rather than introduce the prospect of uncertainty in appeal time by amending Rule 6(b) to permit additional time, the former 10-day periods are expanded to 28 days.
Federal Rules of Civil Procedure, Rule 59, Legal Information Institute, https://www.law.cornell.edu/rules/frcp/rule_59 (Committee Notes on Rules -- 2009 Amendment).
Jones v. United States is an unpublished Tenth Circuit opinion, but the Court can rely on an unpublished Tenth Circuit opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A), 28 U.S.C. ("Unpublished decisions are not precedential, but may be cited for their persuasive value."). The Tenth Circuit has stated: "In this circuit, unpublished orders are not binding precedent, ... and ... citation to unpublished opinions is not favored. However, if an unpublished opinion ... has persuasive value with respect to a material issue in a case and would assist the court in its disposition, we allow a citation to that decision." United States v. Austin,
A loose conflation in terminology in Servants of the Paraclete v. Does, which refers to rule 59(e) motions -- "motion[s] to alter or amend a judgment," Fed. R. Civ. P. 59(e) (emphasis added) -- as "motion[s] to reconsider,"
Much confusion could be avoided by using the term "motion to reconsider" exclusively to refer to the first category, "motion to amend or alter the judgment" exclusively to refer to the second category, and "motion for relief from judgment" exclusively to refer to the third category (and arguable fourth category). These are the terms that the Federal Rules of Civil Procedure -- and other Courts of Appeals -- use to describe (ii) and (iii). The Court agrees with Judge Kelly -- and all he likely meant by using motion to reconsider as an umbrella term is -- that, if a party submits a motion captioned as a "motion to reconsider" after an entry of final judgment, the court should evaluate it under rule 59(e) or 60(b), as appropriate, rather than rejecting it as untimely or inappropriate.
The case itself is unremarkable, uninstructive, does not explicitly outline the now-familiar two-step process of applying Chevron deference, and does not appear to have been intended to become a "big name" case at all. Its author, the Honorable John Paul Stevens, former Associate Justice of the Supreme Court, insists that the case was never intended to create a regime of deference, and, in fact, Justice Stevens became one of Chevron deference's greatest detractors in subsequent years. See generally Charles Evans Hughes, Justice Stevens and the Chevron Puzzle,
There is, additionally, a threshold step -- the so-called step zero -- which asks whether Chevron deference applies to the agency decision at all. See Cass R. Sunstein, Chrevron Step Zero,
HHS does not challenge the Court's determination that the ACA neither requires nor forbids risk adjustment to be operated budget neutrally, see MOO at 60, 312 F.Supp.3d at 1206 ; in fact, HHS' litigation position is that it "has never contended that the text of section 1342 [codified at
HHS cannot use an appeal to appropriations law to justify the structure of its risk adjustment formula vis-à-vis the 2014-2017 benefits years, because the administrative record contains no indication that HHS actually employed this line of reasoning when adopting the risk adjustment formula for those years. See Burlington Truck Lines, Inc. v. United States,
Nevertheless, the Court must grapple with the substance of HHS' appropriations argument for two reasons. First, the 2018 Final Rule contains an oblique reference to HHS' appropriations constraints, which the Court reads as a terse presentation of the Motion's appropriations argument:
A few commenters noted that the budget neutrality of the risk adjustment program leads to inadequate compensation for enrollees' risk and recommended a non-budget neutral risk adjustment program as with Medicare Advantage....
Response: In the absence of additional funding for the HHS-operated risk adjustment program, we continue to calculate risk adjustment transfers in a budget neutral manner and note that Medicare Part D risk adjustment transfers are also calculated in a budget neutral manner.
2018 Final Rule, 81 Fed. Reg. at 94,101 (A.R.009638). See Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc.,
The GAO publishes the GAO Redbook, which is a treatise on federal fiscal law. The GAO advises other agencies, such as HHS, on federal appropriations law. See Appropriations Law, GAO: U.S. Gov't Accountability Off. , https://www.gao.gov/legal/appropriations-law-decisions (last visited Oct. 10, 2018).
HHS is correct that, even though it operates risk adjustment on behalf of the states, anti-commandeering principles prevent the agency from requiring the states to subsidize risk adjustment. See Hodel v. Va. Mining & Reclamation Ass'n, Inc.,
It is not true, however, that HHS' inability to force states to spend money on risk adjustment requires HHS' risk adjustment methodology to be budget neutral. See Reply at 9 (asserting that a non-budget neutral risk adjustment methodology would be unconstitutional, because HHS cannot require states to fund risk adjustment and the ACA tasks HHS with crafting a risk adjustment methodology "that could be used by states to administer their own risk adjustment programs"). The ACA directs HHS to establish "criteria and methods" for risk adjustment,
Public Law 113-235 contains CMS' program management appropriation for the 2015 fiscal year -- during which HHS collected risk adjustment charges and made risk adjustment payments for the 2014 benefits year -- but Congress made program management appropriations for the 2016-2018 fiscal years that are identical in all relevant respects, including the funding amount. See Consolidated Appropriations Act, Pub. L. No. 115-141,
Additionally, the GAO Redbook explicitly rejects the notion that HHS' underlying budget requests restrict the Program Management Appropriation's permissible uses:
How much flexibility does an agency have in spending a lump-sum appropriation? Is it legally bound by its original budget estimate or by expressions of intent in legislative history? How is the agency's legitimate need for administrative flexibility balanced against the constitutional role of the Congress as controller of the public purse?
....
The answer to these questions is one of the most important principles of appropriations law. The rule, simply stated, is this: Restrictions on a lump-sum appropriation contained in the agency's budget request or in legislative history are not legally binding on the department or agency unless they are carried into (specified in) the appropriation act itself, or unless some other statute restricts the agency's spending flexibility. This is an application of the fundamental principle of statutory construction that legislative history is not law and carries no legal significance unless "anchored in the text of the statute." Shannon v. United States ,512 U.S. 573 , 583,114 S.Ct. 2419 ,129 L.Ed.2d 459 (1994). Of course, the agency cannot exceed the total amount of the lump-sum appropriation, and its spending must not violate other applicable statutory restrictions. The rule applies equally whether the legislative history is mere acquiescence in the agency's budget request or an affirmative expression of intent.
GAO Redbook at 6-6 to 6-7 (3d ed. 2006)(footnotes omitted).
On a clean slate, the Court would rely on the plain language, and not consider remand without vacatur. See Park 'N Fly, Inc. v. Dollar Park & Fly, Inc.,
The Wu Decl. makes it seem as though the charges and payments administered for 2014-2016 will stand unless, after undergoing the new rulemaking process, HHS decides to change the rules for those years. See Wu Decl. at ¶ 14, at 4 ("[V]acatur raises questions about the legal status of these already-administered payments and charges while CMS engages in the additional rulemaking necessitated by the Court's decision."). It is thus unclear whether HHS would have to refund all the charges collected and "would be unable to recover those fees under a later-enacted rule," Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n,
"[F]orcing an agency to supply better reasons for doing what it's already done is unlikely to mollify those who brought the initial challenge or to inspire agencies to craft higher-quality rules in the first place." Nicholas Bagley, Remedial Restraint in Administrative Law,
This vacatur is not a grant of a nationwide injunction, so the cases HHS cites to support its request for limiting vacatur to New Mexico are inapplicable. See L.A. Haven Hospice, Inc. v. Sebelius,
Professor Bagley also states that "it's possible that the New Mexico court meant to impose a nationwide injunction," and suggests that the DOJ policy is against nationwide injunctions. Bagley, supra. While Professor Bagley's position is not entirely clear, he seems to suggest that the Court issued a nationwide injunction, or, more likely, that HHS read the Court's MOO and used it to justify suspending risk adjustment payments, which suspension acts like a national injunction and that is inconsistent with DOJ's policy on national injunctions. Professor Bagley does not, however, state whether he is for or against national injunctions.
As an initial matter, the Court has already discussed that it did not issue a national injunction. See infra note 28. Second, even if it can be likened to an injunction order, Congress has expressly granted the power to district courts to vacate agency rules that are arbitrary and capricious, or unlawful. Third, Professor Bagley's questions seem more with what HHS did with the Court's MOO that what the Court did. Fourth, there seems to be some tension between the DOJ's position against nationwide injunctions and its hospitality to Chevron deference. See Assistant Attorney General John C. Cruden Delivers Remarks on the Enduring Nature of the Chevron Doctrine at the D.C. Bar's Administrative Law and Agency Practice Committee's Harold Leventhal Lecture (Nov. 10, 2015), available at https://www.justice.gov/opa/speech/assistant-attorney-general-john-c-cruden-delivers-remarks-enduring-nature-chevron.
Recently, there has been an influx of Professors, Justices, Congresspeople, and academia discussing the propriety of federal district court judges issuing "national injunctions," i.e., "injunctions that apply across the nation, controlling the defendant's behavior with respect to nonparties." Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction,
Whether the nation will allow or not national injunctions is less of a legal issue and more of a policy issue. The critics have not really said that current law -- Congress or some statute -- precludes national injunctions; rather, critics mostly argue that prudential concerns counsel against national injunctions. Congress or the Supreme Court will have to make that call. It would be easy to be aggressive. As a conservative, cautious judge, the Court is inclined not to go any further than the case requires and leave nonparties' law for another day. It is not always clear whether a national injunction has been entered. For example, in this case, there is no national injunction, but vacatur may affect non-parties to this case. On the other hand, even when an injunction limited to the parties, it may effectively impact nonparties. Finally, the national injunctions that seem to draw criticism the most are those against the federal government and not other entities, so it is unclear whether critics are concerned, for example, with national injunctions against corporations in some or all instances.
Critics of federal district court judges issuing national injunctions argue that this practice "encourages forum shopping and that it arrests the development of the law in the federal system." Bray, supra at 419. The grant of an injunction in one circuit, for example, may discourage plaintiffs from bringing similar challenges in different circuits, thus preventing other circuits from developing their views on the issue. See Bray, supra at 461. This reality means that, when the issue reaches the Supreme Court, it is "more likely to hear a case without the benefit of disagreement from the courts of appeals," and its "resolution may be accelerated and relatively fact-free," leading to a bad development of law. Bray, supra at 461-62. Criticism also stems from the fact that, in the multiple-judge federal system, a number of judges may be deciding the same issue in different courts, so conflicting injunction orders may issue. See Bray, supra at 420. According to critics, these conflicting orders creates absurdity in that, to carry out its policies, the United must win every case brought against it seeking to halt a policy, yet a plaintiff need win only once for the policy to be invalidated. See Suzanne Monyak, New House Bill Seeks to Bar Nationwide Injunctions, Law 360 (Sept. 10, 2018, 6:09 PM), https://www.law360.com/articles/1081108/new-house-bill-seeks-to-bar-nationwide-injunctions. Accordingly, the House Judiciary Committee has recently introduced a new bill -- the Injunctive Authority Clarification Act of 2018 -- which, as it is currently written, provides that "[n]o court of the United States ... shall issue an order that purports to restrain the enforcement against a non-party of any statute, regulation, order, or similar authority, unless the non-party is represented by a party acting in a representative capacity pursuant to the Federal Rules of Civil Procedure." Injunctive Authority Clarification Act of 2018, H.R. 6730, 115th Cong. (2018), available at https://www.congress.gov/bill/115th-congress/house-bill/6730/text.
While the Court agrees that national injunctions often are anti-democratic and messy, the Court also is inclined to think that national injunctions have their place in a federal court's arsenal of equitable relief. There is nothing inherently wrong in a federal court issuing a national injunction. The criticisms against the national injunction do not completely move the Court from this stance. First, the Court notes that, as to the issue of forum shopping, prohibiting national injunctions will not solve this issue, and the Court is not convinced that forum shopping is a strong issue here. See Suzette M. Malveaux, Class Actions, Civil Rights, and the National Injunction, 131 Harv. L. Rev. F. 56, 57 (2017) ("Forum shopping is hardly new and, in fact, the American legal system tacitly encourages with its charge that lawyers zealously represent their clients within the bounds of the law." (footnote omitted) ). Zealous litigators are inclined to head to the Ninth Circuit as compared to the Tenth, regardless whether a national injunction is available or not. Second, the national injunction does not create bad development of law. Courts do not issue injunctions lightly. The standard to receive an injunction is high, and litigants have every incentive to zealously argue for their position. There must be some facts presented for a court to determine whether a plaintiff is likely to succeed on the merits of the case. While deciding an issue on such a bare record is not ideal, this is the standard for receiving a preliminary injunction. See Winter v. NDRC,
Critics of the national injunction also note the apparent lack of legal authority for federal courts to issue national injunctions. The argument is that, because equitable remedies must be grounded in traditional equity as it existed in the Court of Chancery in 1789 and because traditional equity had nothing similar to a national injunction, federal courts today lack the ability to issue national injunctions. See Bray, supra at 425. In traditional equity, the Court of Chancery, as it originated from the Crown, would not enjoin the Crown and would normally issue decrees affecting only the parties before it. See Bray, supra at 425-27. Broader relief could be obtained, however, where it resolved the "common claims of cohesive group," which allowed "a successful plaintiff to obtain an injunction protecting all similarly situated persons" and, thus, affecting nonparties. Bray, supra at 427.
The Court also has issues with this ground for prohibiting national injunctions. The federal government is one of checks and balances, and all three branches must work together to promote an organized society. "The legislative department has been committed the duty of making laws, to the executive the duty of executing them, and to the judiciary the duty of interpreting and applying them in cases brought before the courts." Commonwealth of Massachusetts v. Mellon,
Limiting the injunction also does nothing to prevent the broader effects of the void law. In effect, then, while the law is void as to the deciding case, it still stands as to everyone else who has not challenged it. This result means that the law, which should be void for conflicting with the Supreme Law of the land, is still influencing conduct. Thus, the Legislature still has "a practical and real omnipotence," and is still able to "do what is expressly forbidden." Marbury v. Madison, 5 U.S. (1 Cranch) at 178 ). Where a plaintiff has standing to challenge the law -- therefore showing an actual, concrete injury -- and shows that the law is unconstitutional, then to fully provide justice a federal court should have the power to void the statute and uphold the sanctity of the Constitution by striking the statute down, i.e., enjoining its enforcement broadly.
Critics also note a number of doctrinal inconsistencies that the issuance of national injunctions creates. These inconsistencies include: (i) national injunctions render meaningless the legal principle that nonmutual, offensive issue preclusion cannot be used against the federal government; (ii) the use of rule 23(b)(2) class actions are unnecessary if a national injunction provides the same relief to an individual plaintiff; (iii) the inability of nonparties to enforce an injunction order; and (iv) the ability of federal district court judges to "recognize and determine the law" for nonparties through a national injunction, when their decisions cannot and should not bind other district courts or create precedent or clearly established law. Bray, supra at 464-65. Again, these criticisms do not sway the Court's belief that national injunctions have their place in promoting a just society, but they counsel extreme caution in using them.
An injunction has been issued as to a party -- the defendant -- who had a full and fair chance to litigate. Enjoining that defendant's enforcement of an unconstitutional law means that law cannot stand. Should that defendant then attempt to enforce the law against a nonparty, that person would not be able to sue for contempt under the injunction, but would rather have to relitigate the issue. The point of the injunction is to attempt to prevent the defendant from enforcing the law at all, which a federal court could do because the defendant is a party in front of it. Finally, a national does not create binding precedent, and does not create clearly established law for qualified immunity purposes. A national injunction, as with any other injunction, is enforceable via contempt of court only by the court that issued the injunction. It is true that the national injunction is an "imperfect and crude form[ ] of justice," but the Court is inclined to believe that, without it, there are situations in which justice cannot be served. Malveaux, supra at 56.
In the end, there are sound policy reasons for and against national injunctions. Congress and/or the Supreme Court will decide the issue. On balance, the Court agrees with the criticism that they should be used sparingly and carefully, but that there is some room in the nation's democratic society for them. Cases have to get started somehow, and most get started in the district court, which either gets the issues right or wrong in the first instance.
Finally, if Congress or the Supreme Court limits national injunctions, it should not do so in a way that displays some form of elitism. The critics seem uncomfortable with national injunctions in Hawaii, California, or New Mexico, but less so if they come out of S.D.N.Y. or the District of Columbia. Again, that limitation would not be a national principle, but only would reflect a distaste for everyone and everything that is not on the East Coast.
Reference
- Full Case Name
- NEW MEXICO HEALTH CONNECTIONS, a New Mexico Non-Profit Corporation v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare and Medicaid Services Sylvia Mathews Burwell, Secretary of the United States Department of Health and Human Services, in her official capacity and Andrew M. Slavitt, Acting Administrator for the Centers for Medicare and Medicaid Services, in his official capacity
- Cited By
- 9 cases
- Status
- Published