NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 11-2616

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JEWISH HOME OF EASTERN PENNSYLVANIA,

Petitioner

v.

CENTERS FOR MEDICARE & MEDICAID SERVICES;

DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Respondents

_______________

On Petition for Review from the Departmental Appeals Board

of the Department of Health and Human Services

(Docket No. A-11-19, Decision No. 2380)

_______________

Submitted Under Third Circuit LAR 34.1(a)

February 9, 2012

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Before: SLOVITER, VANASKIE, Circuit Judges, 

and POLLAK, District Judge*

(Opinion filed: March 14, 2012)

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OPINION

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 * Honorable Louis H. Pollak, Senior Judge of the United States District Court for the 

Eastern District of Pennsylvania, sitting by designation.
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POLLAK, District Judge.

The Centers for Medicare and Medicaid Services (“CMS”) is the division of the 

Department of Health and Human Services that superintends the operations of the 

Medicare program. Among CMS’s many responsibilities are the setting of standards for 

facilities providing nursing care for Medicare patients and the monitoring of compliance 

with those standards. In Pennsylvania the monitoring function is carried out by personnel 

of regional offices of the Pennsylvania Department of Health, who conduct periodic 

inspections on CMS’s behalf of nursing facilities in the region that care for Medicare 

patients. The results of the inspections are reported to CMS. When the reported results 

lead CMS to conclude that a facility has been significantly non-compliant with prescribed 

standards, CMS is empowered to impose a civil money penalty (“CMP”) on the 

offending facility, the penalty being measured by the severity and duration of noncompliance. 42 U.S.C. § 1395i-3(h)(2)(B)(ii); 42 C.F.R. §§ 488.430 et seq. An entity 

challenging a CMP may appeal to an administrative law judge (“ALJ”) and thence to the 

Appellate Division of the Departmental Appeals Board (“DAB”). 42 C.F.R. § 402.19. 

An adverse DAB ruling is then subject to review by a court of appeals. 42 U.S.C. 

§§ 1320a-7a(e), 1395i-3(h)(2)(B)(ii)(I); 42 C.F.R. § 402.21.

In the case at bar, the Jewish Home for Eastern Pennsylvania (“JHEP”)—a nursing 

facility located in Scranton, Pennsylvania—petitions for review of a DAB decision 

sustaining a CMP in the sum of $42,600. The CMP was calculated at the rate of $600 per 

day of unremedied deficiencies, pursuant to inspections conducted by personnel of the 
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Scranton office of the Pennsylvania Department of Health in November 2007 and 

January 2008. 

In seeking review of the CMP, petitioner JHEP is not contesting CMS’s findings

of deficiencies in nursing care. Instead, invoking Yick Wo v. Hopkins, 118 U.S. 356 

(1886), JHEP asserts that it has been the target of selective enforcement, in that the 

facility has been allegedly singled out for harsher penalties than other comparable nursing 

facilities solely because JHEP, while non-denominational, is associated with Jewish 

culture and values.

In its brief in this court, JHEP notes that this case “involves different (new) fines 

but the same parties and similar facts” as an earlier case, Jewish Home of Eastern PA v. 

Centers for Medicare and Medicaid Services, 413 F. App’x 532 (3d Cir.), cert. denied, 

132 S. Ct. 837 (2011). (To avoid confusion we will refer to the cited case as JHEP I and 

the case at bar as JHEP II.) In JHEP I—the earlier case—JHEP also mounted a selective 

enforcement defense against the imposition by CMS of a CMP based on deficiencies 

found by CMS following a 2005 inspection conducted by personnel of the Scranton 

office of the Pennsylvania Department of Health. 

The correctness of JHEP’s statement in its brief that JHEP I and JHEP II involve 

“similar facts” is shown by comparing central elements of the offers of proof submitted to 

the respective ALJs by JHEP in the two cases:

1. Offer of proof in JHEP I (excerpts): 

Petitioner will meet its burden to show that the citations were 

tainted by racial and/or religious bias with three types of evidence: 

1) expert statistical evidence comparing and contrasting CMS’ 
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Quality Measures (QM) data for all facilities surveyed from the 

Scranton Field Office (SFO) as well as all F-324 citations issued by 

the SFO, 2) eye-witness testimony regarding surveyor religious bias 

and SSA management’s failure to investigate or take meaningful 

action when considering complaints of bias; and 3) a side-by-side 

comparison of CMS 2567 factual narratives and citations under F324 issued by the SFO.

* * * *

Petitioner will introduce the Report of Samuel P. Wilcock, 

Ph.D., an expert in probability and statistics as well as his 

curriculum vitae. This report concludes with a very high degree of 

confidence that a valid statistical study of the F-324 citations issued 

to the JHEPA and other facilities in the SFO reveals that the F-324 

citations were not issued using race/religion neutral criteria.

Petitioner has also analyzed the F-324 citations issued to the 

JHEPA in the surveys at issue in this case and F-324 citations issued 

to other facilities in the SFO. This analysis reveals that the SFO 

assigns a higher scope and severity rating to the JHEPA in cases 

where the facts of each facility’s alleged noncompliance is 

equivalent or identical. This evidence strengthens the conclusion 

that the citations issued in the surveys at issue in this case are tainted 

with bias.

. . . .

Petitioner will offer the testimony of Sara Raposo, the former 

JHEPA Activities Director. Ms. Raposo will testify that a SFO 

survey inspector named “Kieran Bunnel (Ph.)” expressed survey bias 

which was understood by Ms. Raposo to be based on Ms. Bunnel’s 

Christian ideology, faith or view-point. Specifically, Ms. Bunnel 

said words to the effect of: “Well, I’m Christian, and I wouldn’t feel 

comfortable [sharing a non-denominational pastry repast] Kiddush” 

offered by the JHEPA to its residents.

In other words, because Ms. Bunnel was “Christian” she did 

not feel “comfortable” sharing pastries at the facility event which 

was non-denominational, open to all, but which happened to have 

the Hebrew name, Kiddush. Because Ms. Bunnel did not feel 

“comfortable,” she concluded that the pastry event was not one that 

all residents could enjoy. The SFO then cited the facility. Ms. 
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Reposo’s [sic] testimony will clearly establish that at least this SFO 

surveyor used her “Christian” point of view to assess the adequacy 

of the facility’s activities program.

Petitioner will offer the testimony of Mark White, the SSA 

Regional Manager. He is expected to testify by subpoena that he 

received complaints about Ms. Bunnel. These complaints included a 

JHEPA IDR [request for Informal Dispute Resolution] that 

complained that Ms. Bunnel recommended citing the JHEPA based 

on religious criteria. Mr. White is expected to testify that he wrote 

to the JHEPA indicating that he had “thoroughly considered” the 

IDR complaint and found it to be without merit, even though he 

failed to conduct any real investigation. In other words, even though 

the SSA had received other complaints about Ms. Bunnel, Mr. White 

issued a boilerplate response to the JHEPA and did not take the 

complaint seriously.

JHEP I, Petitioner’s Br. at 20-22, 24-25.

2. Offer of proof in JHEP II:

Petitioner’s second affirmative defense is that evidence 

should be excluded under 42 C.F.R. § 498.61 because the citation 

upon which the CMP rests is the result of unlawful 

discrimination. . . .

Petitioner will support this defense with the testimony of 

three primary witnesses. The first is Dr. Samuel Wilcock, Ph.D., an 

expert statistician. Dr. Wilcock will testify that the high level of F324 citations issued to the JHEPA by the Scranton Field Office 

(SFO) is likely to be the result of bias.

The second is Ms. Sara Raposo. Ms. Raposo is the former 

JHEPA Activities Director. Ms. Raposo will testify that “Kieran 

Bunnel (Ph.),” an SSA surveyor that has since been terminated by 

the SSA, expressed a religious bias when she investigated the 

JHEPA activities program and issued a citation for failure to provide 

appropriate activities.1

 1 In the administrative proceedings that led to the present petition, JHEP’s counsel 

acknowledged that JHEP had “no specific evidence of surveyor bias” by any of the 

Scranton inspectors involved in the current case.
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The third is Mr. Mark White, who is expected to testify under 

subpoena. Mr. White is the SSA Regional Manager with 

responsibility for supervising the SFO and with responsibility for 

reviewing and deciding facility requests for Informal Dispute 

Resolution (IDR). Mr. White is expected to testify that he received 

an IDR from the JHEPA raising the issue of religious discrimination 

but that he failed to conduct any meaningful investigation after 

receipt of the IDR. 

In addition, Petitioner has prepared a side-by-side comparison 

of the F-324 citations issued in this case with F-324 citations issued 

to non-Jewish facilities in the SFO. The comparison, which is 

included in this Narrative, clearly shows that the JHEPA is treated 

more harshly than non-Jewish facilities for alleged violations which 

are factually similar if not identical.

Petitioner will also introduce Quality Measures (QM) data, 

and SFO survey data to support the allegation of bias.

JHEP II, Petitioner’s Br. at 6-7.

The panel of this court that considered JHEP I denied JHEP’s petition for review 

on February 11, 2011. 413 F. App’x 532. The panel ruled as follows:

To establish a selective-enforcement claim, JHEP must show (1) that 

it was treated differently from other similarly situated individuals, and (2) 

“that this selective treatment was based on an unjustifiable standard, such 

as race, or religion, or some arbitrary factor, . . . or to prevent the exercise 

of a fundamental right.” Dique v. N.J. State Police, 603 F.3d 181, 184 n. 5 

(3d Cir. 2010) (quotations omitted). Hence, to maintain an equal protection 

claim of this sort, JHEP must provide evidence of intentional or purposeful 

discriminatory purpose, not mere unequal treatment or adverse effect. 

Snowden v. Hughes, 321 U.S. 1, 8, 64 S. Ct. 397, 88 L. Ed. 497 (1944). 

JHEP must show that the “decisionmaker . . . selected or reaffirmed a 

particular course of action at least in part because of, not merely in spite of, 

its adverse effects . . . .” Wayte v. United States, 470 U.S. 598, 610, 105 S.

Ct. 1524, 84 L. Ed. 2d 547 (1985) (quotations omitted).

JHEP relies upon three primary documents to show discriminatory 

effect and discriminatory purpose. First, JHEP submits side-by-side 

comparisons of citations issued to JHEP as compared to other local 

facilities. JHEP also provides a statistical report which concluded that the 
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number of citations issued to JHEP was high in comparison to other 

facilities surveyed from the Scranton Field Office and that this finding was 

likely the result of bias and not likely the result of differences in the quality 

of care, error, or chance. Additionally, JHEP presents the affidavit of an 

employee who claims that the CMS surveyor made a discriminatory 

statement in October 2004, over a year before the surveys in question. 

Specifically, in surveying whether JHEP provided activities on Saturdays 

for residents of all denominations, the surveyor was told that there was a 

Kiddush—a ceremony involving a blessing and food that all individuals 

were invited to regardless of their religious affiliations. According to the 

employee, the surveyor responded that she was Christian and would feel 

uncomfortable attending such an activity.

We hold that JHEP has failed to establish a claim for selective 

enforcement under the Equal Protection Clause. JHEP has not 

demonstrated that CMS issued fines with an intentionally discriminatory 

purpose. We find JHEP’s reliance on the surveyor’s alleged statement to 

be misplaced as it was clearly taken out-of-context, was not 

contemporaneous to the surveys in question, and was not relevant or 

facially discriminatory. Additionally, JHEP has failed to show that it was 

treated differently from other similarly situated facilities. Therefore, we 

conclude that JHEP’s equal protection claim has no merit.

JHEP I, 413 F. App’x at 535-36, cert. denied, 132 S. Ct. 837 (2011).

It thus appears that the issue of whether CMS has been engaged in selective 

enforcement with respect to petitioner JHEP has been decided adversely to the petitioner 

in litigation that has gone to final judgment between the same parties as the parties in the 

case at bar. Under these circumstances, the petitioner is precluded from relitigating the 

selective enforcement issue. See Restatement (Second) of Judgments § 27 (1982) 

(“When an issue of fact or law is actually litigated and determined by a valid and final 

judgment, and the determination is essential to the judgment, the determination is 

conclusive in a subsequent action between the parties, whether on the same or a different 
8

claim.”); accord Taylor v. Sturgell, 553 U.S. 880, 892 (2008); Peloro v. United States,

488 F.3d 163, 174-75 (3d Cir. 2007).

There is one additional, novel argument in JHEP’s briefing to support the present 

petition, namely that due process has been offended because the facility has not been

afforded an evidentiary hearing on its selective enforcement claim.2

For the foregoing reasons, JHEP’s petition for review will be denied.

 But JHEP is not 

entitled to an evidentiary hearing to explore an issue that has already been fully litigated 

to final judgment in prior litigation.

 2 It is to be noted that the panel ruling in JHEP I, quoted at length above, reviewed 

JHEP’s proposed testimony and documentary evidence and found that, given full weight, 

they were unpersuasive on JHEP’s equal protection claim. On September 6, 2011, JHEP 

filed a motion to stay appellate review of the current petition and to assign the matter to a 

district court for an evidentiary hearing. The motion was denied on October 7, 2011.

In amplification of the motion to stay, JHEP alluded to a report by a probability 

expert, Dr. William Fairely (additional to the report by Dr. Wilcock, referred to in 

JHEP’s offer of proof in JHEP I and JHEP II). But the report of Dr. Fairely is not 

annexed to JHEP’s motion to stay, nor is it contained in the appendix, and hence it cannot 

be considered.