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 No. CV 08-2309-PHX-ROS (D.Ariz.), filed December 18, 2008. Appeal filed March 6, 2012 (No. 12-15478, 9th Cir.).

Issue: Whether the Secretary's exclusion of coverage for dental care in extraordinary circumstances where the care is necessary to treat a medical condition violates the Medicare statute and policy provisions, and the Equal Protection Clause.

Relief Sought: Declaratory judgment that the policy is invalid, and a preliminary and permanent injunction against the application of the policy to an individual beneficiary.

Updated: July 9, 2014

Status: The district judge denied plaintiff Fournier's request for a preliminary injunction on the ground that he was not entitled to waiver of exhaustion.  Amended complaints allowing two other named plaintiffs to participate were permitted to be filed, with the court expressly recognizing that the venue requirement of 42 U.S.C. § 405(g) did not preclude non-residents of the district from participating as long as one plaintiff was from that district. 677 F.Supp.2d 1172. The court has allowed the plaintiff to engage in limited discovery. As requested by the court, the parties have fully briefed two discrete issues involving the merits and class certification, and are awaiting the court's action on those issues before the case proceeds further. After the tragic death of Chief Judge Roll in the Tucson shootings, Judge Silver, who was the judge on this case, became the Chief Judge.  She then reassigned the case to Senior Judge Carroll, but it was reassigned back to Chief Judge Silver in October.

On February 14, 2012, the court ruled adversely to the plaintiffs. 839 F. Supp. 2d 1077.  Mr. Fournier's claim was dismissed as moot, since he had received a favorable administrative law judge decision during the course of the litigation. For the claims of the other two beneficiaries, the court did not rule on the issue which they had raised in their complaint and for which the district judge had required briefing (whether coverage of non-routine dental care is permitted under the statute), but instead simply held that there was substantial evidence to support the Secretary's decisions below on their individual claims.  The judge also held that the putative class members could not satisfy the requirements for waiver of exhaustion.

Plaintiffs Berg and DiCecco appealed, and the appeal was briefed during the summer and fall of 2012.  On plaintiffs’ request, the court agreed to expedite oral argument, and the appeal was argued on March 5, 2013.  Because the government’s attorney introduced a Supreme Court decision in the oral argument that had not been briefed in the case, the court ordered supplemental briefing, which was completed on March 21, 2013. 

On May 31, 2013, the Court of Appeals affirmed the decision below.  718 F.3d 1110.   It held that the statutory scheme was ambiguous and therefore considered whether "Chevron deference" should be applied to the Secretary’s policy.  Although the court recognized that manual provisions lack the force of law and therefore are not usually deferred to, it held that application of the provisions through the “process of adjudication” (i.e., the Medicare Appeals Council) gave them the force of law and entitled them to Chevron deference.  Plaintiffs filed a petition for rehearing or rehearing en banc disputing the court’s “process of adjudication” analysis and pointing out that decisions of the Medicare Appeals Council also lacked the force of law.  After the Secretary filed a court-ordered response and plaintiffs filed a reply, the court denied the petition for rehearing or for rehearing en banc on October 22, 2013.

On January 16, 2014, plaintiffs filed a petition for certiorari in the case that is styled in the Supreme Court as Berg v. Sebelius, No. 13-859. The petition was limited to the issue of whether the Court of Appeals properly applied Chevron deference. The government waived its right to file a response.  AARP, the National Health Law Program, and the National Senior Citizens Law Center filed an amicus brief supporting the petition. On March 3, 2014, the Supreme Court denied the petition for certiorari.  — S.Ct. —, 2014 WL 234967.

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