1 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SAINT FRANCIS MEDICAL CENTER, et al.

Plaintiffs,

v. 

Case No. 1:22-cv-1960-RCL

Case No. 1:22-cv-1964-RCL

(consolidated)

XAVIER BECERRA, Secretary, United States 

Department of Health and Human Services, 

 Defendant. 

MEMORANDUM OPINION

Plaintiff-hospitals (“Hospitals”) bring this action challenging their total Medicare inpatient 

hospital operating payments for fiscal years 2019, 2020, and 2021. Before the Court are the 

Hospitals’ Motion for Partial Summary Judgment, ECF No. 15-1, and defendant Secretary of the

United States Department of Health and Human Services’ (“Secretary’s”) Cross-Motion to 

Dismiss for Lack of Jurisdiction, ECF No. 18-1. Upon consideration of the parties’ briefing, the 

record, and the applicable law, this Court will DENY the Hospitals’ motion and GRANT the 

Secretary’s motion. 

I. BACKGROUND

The Hospitals raise predicate fact challenges to Medicare Hospital Inpatient Prospective 

Payment System (“IPPS”) payments for fiscal years 2019, 2020, and 2021. Compl. ¶¶ 1–7, ECF 

No. 1; see generally Kaiser Found. Hosps. v. Sebelius, 708 F.3d 226, 232–33 (D.C. Cir. 2013); 

Saint Francis Med. Center v. Azar, 894 F.3d 290, 291–92 (D.C. Cir. 2018).1

 

1 Case No. 22-cv-1964 was consolidated with Case No. 22-cv-1960 on September 1, 2022. ECF No. 10. The Court 

cites to the Complaint filed in 22-cv-1960. Additionally, because the procedural history of these two suits is 

substantially similar, the Court will describe the case’s procedural background in general terms. This is consistent 

with the practice of both parties. 
2

The Hospitals’ allege that the Secretary calculated payments for these years using 

“invalidly low standardized amounts.” Compl. ¶ 1 (internal quotation marks omitted).

Standardized amounts provide “fundamental methodological building block[s]” for calculating 

IPPS payments. Compl. ¶ 2. Standardized amounts are not recalculated from scratch each fiscal 

year. Compl. ¶ 2. Instead, the Secretary carries forward the previous year’s standardized amounts

after applying certain adjustments. Compl. ¶ 2. The standardized amounts at issue here trace back 

to when the Secretary originally calculated standardized amounts for fiscal year 1984. Compl. ¶ 2. 

The Hospitals allege that the Secretary’s calculations for fiscal year 1984 were impermissibly low

and that this understatement has infected the Secretary’s calculations for all subsequent fiscal 

years, including 2019, 2020, and 2021. Compl. ¶ 2. The Hospitals initiated their predicate fact 

challenges by filing group appeals before the Provider Review Reimbursement Board (the 

“Board”). Compl. ¶ 58. 

On August 10, 2020, the Hospitals requested expedited judicial review (“EJR”) of their 

claims. Compl. ¶ 61. EJR permits parties to bypass the Board hearing process in cases where the 

Board “is without authority” to decide a “question of law or regulations relevant to the matters in 

controversy.” 42 U.S.C. § 1395oo(f)(1). EJR requests are directed to the Board. Id. If the Board

fails to render a determination on EJR within the period required by law—ordinarily, thirty 

days—then the party requesting EJR may bypass the Board entirely and file a civil action in the 

appropriate United States District Court. Id. In their request, the Hospitals argued that they were 

entitled to EJR because the Board had jurisdiction to hear their appeals but lacked authority to 

decide the validity of the Secretary’s regulations concerning IPPS. Compl. ¶¶ 60–61, 63. In 

response, the Board homed in on the issue of jurisdiction and requested “significant supplemental 

briefing” on whether 42 U.S.C. § 1395ww(d)(7) renders the Hospitals’ claims administratively 
3

and judicially unreviewable. Compl. ¶ 62. The parties spent approximately three months briefing

the jurisdictional issue. See Compl. ¶ 62.

The Board denied the Hospitals’ first EJR request with leave to refile on October 27, 2021. 

Compl. ¶ 64. Simultaneously with the denial, the Board requested that the parties respond to 

several questions “addressing both whether EJR is appropriate as well as whether the Board has 

jurisdiction.” Compl. ¶ 64 (internal quotation marks omitted). The Centers for Medicare and 

Medicaid Services Administrator declined to review the Board’s decision denying the first EJR 

request on December 22, 2021. Compl. ¶ 65. The Hospitals responded to the Board’s requests for 

information on February 4, 2022. Saint Francis Administrative Record 290–352; UCMC 

Administrative Record 268–308.

2

On April 8, 2022, the Hospitals requested EJR for the second time. Compl. ¶ 66. In 

response, the Board stated that it would not rule on the second EJR request within thirty days and 

that “the 30-day period for responding to the EJR request is stayed for these group appeals.” 

Compl. ¶ 67 (internal quotation marks omitted). The Board did not issue a determination 

respecting the second EJR request within the thirty-day period after the Hospitals filed their second 

EJR request. Compl. ¶ 73. On July 6, 2022, while the Board’s review of the second EJR request 

was still outstanding, the Hospitals filed the two lawsuits that are presently consolidated before 

this Court. The Hospitals claim that they are entitled to file suit in this Court because the Board

failed to act within the statutorily prescribed period for responding to their second EJR request.

Compl. ¶ 6.

2 The administrative records for these consolidated cases are located in the multi-volume joint appendix available at 

ECF No. 32. 
4

The Hospitals moved for partial summary judgment on October 28, 2022. Pls.’ MSJ, ECF 

No. 15-1.

3 They ask the Court “to confirm that they were entitled to file these [consolidated] 

actions under 42 U.S.C. § 1395oo(f)(1).” Pls.’ MSJ at 10–11. In the alternative, they ask the Court 

to exercise its mandamus powers to compel the Board to decide the jurisdiction issue within ten 

days following remand. Pls.’ MSJ at 11. The Secretary opposed and cross-moved to dismiss. Def.’s 

MTD, ECF Nos. 18-1, 19.

4 The Secretary argues that the Court lacks subject matter jurisdiction to 

hear the merits of the Hospitals’ claims because the Hospitals failed to exhaust their administrative 

remedies. Pls.’ MSJ at 25–47. The Secretary further argues that the Hospitals are not entitled to 

mandamus relief. Pls.’ MSJ at 47–49. The Hospitals opposed the Secretary’s motion to dismiss 

and replied in support of their motion for partial summary judgment. Pls.’ Reply, ECF Nos. 23, 

24.5 The Secretary replied in support of his motion to dismiss. Def.’s Reply, ECF No. 27.

Earlier this year, after the parties completed their motions briefing, the Board dismissed

several substantively identical group appeals for lack of jurisdiction. ECF Nos. 30, 33. The Board

issued a written decision in which it explained that “it lacks substantive 

jurisdiction . . . because . . . 42 U.S.C. § 1395ww(d)(7) prohibits administrative or judicial 

review.” ECF No. 31-1 at 12. The providers in those group appeals have appealed the Board’s 

decision to this Court.6

The parties’ motions are ripe for review.

3 The Court cites to ECF page numbers when referring to the parties’ motions, not the motions’ internal pagination.

4 These filings are identical and will be treated as a single filing.

5 See the previous footnote.

6 That case is No. 23-cv-1594.
5

II. LEGAL STANDARDS

A. Motion to Dismiss

A defendant in a civil action may move to dismiss a complaint under Federal Rule of Civil 

Procedure 12(b)(1) for “lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). A court 

considering such a motion must take all the well-pleaded allegations in the complaint as true and 

draw all reasonable inferences in the plaintiff's favor. Doe v. Wash. Metro. Area Transit Auth., 

453 F. Supp. 3d 354, 361 (D.D.C. 2020); see also Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 

(D.C. Cir. 2011). “However, those factual allegations receive closer scrutiny than they do in 

the Rule 12(b)(6) context,” and the court “may look to documents outside of the complaint in order 

to evaluate whether or not it has jurisdiction to entertain a claim.” Doe, 453 F. Supp. 3d 

at 361 (internal quotation marks and citations omitted). It is the “[p]laintiff [who] bears the burden 

of proving subject matter jurisdiction by a preponderance of the evidence.” Am. Farm Bureau v. 

U.S. Env’t Prot. Agency, 121 F. Supp. 2d 84, 90 (D.D.C. 2000).

B. Medicare Statutory Exhaustion Requirements

“Federal subject matter jurisdiction over claims arising under the Medicare Act is permitted 

only upon the completion of the administrative process outlined in that statute and its 

implementing regulations.” Cape Cod Hosp. v. Leavitt, 565 F. Supp. 2d 137, 139 (D.D.C. 2008) 

(quoting Three Lower Cntys. Cmty. Health Servs. v. U.S. Dep’t of Health & Human 

Servs., 517 F.Supp.2d 431, 435 (D.D.C. 2007)); see also 42 U.S.C. §§ 405(g)–(h), 1395ii. The 

Medicare statute “demands the ‘channeling’ of virtually all legal attacks through the agency.” 

Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 13 (2000). Indeed, this Circuit has 

held that judicial review is barred under 28 U.S.C. § 1331 and “may be had only after the claim 

has been presented to the Secretary and administrative remedies have been exhausted.” Am. 
6

Chiropractic Ass’n v. Leavitt, 431 F.3d 812, 816 (D.C. Cir. 2005); see also Weinberger v. 

Salfi, 422 U.S. 749, 765 (1975) (“Exhaustion is generally required as a matter of preventing 

premature interference with agency processes, so that the agency may function efficiently and so 

that it may have the opportunity to correct its own errors, to afford the parties and the courts the 

benefit of its experience and expertise, and to compile a record which is adequate for judicial 

review.”). “Even if the administrative process is time-consuming, it must be followed as long as it 

is available.” Cape Cod, 565 F. Supp. 2d at 140 (citing Three Lower Counties, 517 F. Supp. 2d 

at 435).

“The Medicare statute and regulations prescribe a specific procedure for filing 

reimbursement claims and for appealing reimbursement decisions with which the provider 

disagrees.” Athens Cmty. Hosp., Inc. v. Schweiker, 686 F.2d 989, 990 (D.C. Cir. 1982). Providers 

who are dissatisfied with a final determination of their fiscal intermediary as to the amount of 

payment generally may appeal the determination to the Board. 42 U.S.C. § 1395oo(a)(1)(A)(ii). 

However, providers may not appeal if they fail to satisfy certain jurisdictional prerequisites or if 

the statute makes the determination at issue administratively and judicially unreviewable. Id. 

§ 1395oo(a)(2)–(3), (b), (g); see also 42 C.F.R. §§ 405.1837, .1840. After the Board finds 

jurisdiction, holds a hearing, and renders a decision, providers may then have access to judicial 

review according to the jurisdictional guidelines established by Congress. 42 U.S.C. § 1395oo(f). 

A decision by the Board becomes final for purposes of seeking judicial review unless “within 60 

days after the provider of services is notified of the Board's decision, [the Secretary] reverses, 

affirms, or modifies the Board's decision.” Id. § 1395oo(f)(1).

Providers may bypass the full Board hearing process and obtain EJR in cases where the 

Board has jurisdiction to hold a hearing but “is without authority” to decide a “question of law or 
7

regulations relevant to the matters in controversy.” Id. However, before providers may obtain EJR, 

the Board must first find that it lacks authority to decide a relevant question. Id. The Board may 

make this determination on its own motion or at the request of a provider. Id. Requests for a 

determination must meet requirements set forth in the Medicare statute and regulations. See 

42 U.S.C. § 1395oo(f); 42 C.F.R. § 405.1842. For instance, the provider must be able to “obtain a 

hearing under subsection (a)” and the request must be “accompanied by such documents and 

materials as the Board shall require for purposes of rendering such determination.” 42 U.S.C. 

§ 1395oo(f)(1). If all applicable requirements are met, then the Board must render a determination 

within thirty days of receiving the request. Id. If the Board fails to render a determination “within 

such period, the provider may bring a civil action . . . with respect to the matter in controversy” 

within sixty days. Id.

III. DISCUSSION

The Court is without subject matter jurisdiction to reach the merits of the Hospitals’ claims

because they failed to exhaust their administrative remedies when they initiated civil actions in 

this Court before the Board determined it had jurisdiction. Additionally, the Court will not exercise 

its mandamus powers to compel a determination because the statute imposes no time constraints 

on the Board’s jurisdictional review. For these reasons, the Hospitals’ claims must be dismissed.

A. The Hospitals Have Not Exhausted Their Administrative Remedies

The Hospitals acknowledge that they short-circuited the Board’s jurisdictional review 

when they filed in this Court but argue that this was proper because the Board was required to 

render a decision on EJR within thirty days after the second request was filed and failed to do so. 

See Pls.’ MSJ at 30. According to the Hospitals, this means the Court is authorized to reach the 
8

merits of their claims under both the statute, 42 U.S.C § 1395oo(f)(1), and the implementing 

regulation, 42 CFR § 405.1842.

Not so. The Court is without jurisdiction to hear these claims because the statute and 

regulation do not require the Board to render a decision on jurisdiction within thirty days of 

receiving a complete EJR request. Indeed, the statute and regulation by their terms do not impose 

any time constraints on the Board’s determination of jurisdiction. See 42 U.S.C § 1395oo(f)(1); 42 

CFR § 405.1842. The Hospitals’ proffered interpretation of the regulation is so wildly 

disconnected from the text as to “warrant[] little attention.” Cape Cod, 565 F. Supp. 2d at 141. 

And, as discussed below, the Court’s interpretation of the regulation is consistent with the text of 

the Medicare Act and is neither arbitrary nor capricious.

The Court will not belabor these points as it already reached substantially the same result

in Cape Cod. Although Cape Cod arose in a slightly different procedural context, the legal 

propositions that it stands for apply with full force here: The thirty day period within which the 

Board must act on an EJR request does not begin to run until the Board accepts jurisdiction, and, 

this scheme is consistent with the plain text of the Medicare Act. See id. at 140–41. The Hospitals 

have not offered persuasive reasons to revisit this holding or find it inapposite. However, even if 

this issue were before the Court for the first time, the Court would reach the same result.

1. The Hospitals May Not Obtain EJR Before the Board Finds It Has Jurisdiction

The Court starts with the text of the implementing regulation. Paragraph (b)(2), which 

appears in a parent-paragraph entitled “General,” provides that:

Under paragraphs (d) and (e) of this section, a provider may request 

a determination of the Board’s authority to decide a legal question, 

but the 30-day period for the Board to make a determination under 

[§ 1395oo(f)(1)] of the Act does not begin to run until the Board 

finds jurisdiction to conduct a hearing on the specific matter at issue 
9

in the EJR request and notifies the provider that the provider’s 

request is complete.

42 CFR § 405.1842(b)(2) (emphasis added).

7 The text is clear. The thirty-day decisional period 

does not begin until the Board finds it has jurisdiction. Id. The Hospitals did not originally dispute 

this in their motion for partial summary judgment. Instead, they argued that the regulation was 

inconsistent with the text of § 1395oo(f)(1). See Pls.’ MSJ at 18–19, 32–33. In the Hospitals’ 

combined opposition and reply, however, they raised for the first time the specious argument that 

the regulation requires the Board to determine jurisdiction within thirty days. Pls.’ Reply at 20–28. 

Their argument fails.

The Hospitals claim that 42 CFR § 405.1842(e)(3) unambiguously establishes that the 

Board must render a decision on jurisdiction and authority within thirty-days of receiving a 

complete EJR request. Pls.’ Reply at 20–22. § 405.1842(e)(3)(i) states that “[u]pon receiving a 

complete provider request, [the Board must] issue an EJR decision in accordance with paragraph 

(f) of this section no later than 30 days after receipt of the complete provider request.” 42 CFR 

§ 405.1842(e)(3)(i). The Hospitals argue that because their request was complete, the Board was 

obligated to render a response within thirty days. Pls.’ Reply at 25–26. 

But the Hospitals’ myopic focus on § 405.1842(e)(3)(i) fatally ignores the rest of 

paragraph (e). § 405.1842(e)(1) provides:

If the Board makes a finding that it has jurisdiction to conduct a 

hearing on a specific matter at issue in accordance with 

§ 405.1840(a) of this part, then (and only then) it must consider 

whether it lacks the authority to decide a legal question relevant to 

the matter at issue. The Board is required to make a determination 

of its authority to decide the legal question . . . by issuing an EJR 

decision no later than 30 days after receiving a complete provider 

request as defined in paragraph (e)(2) of this section.

7 Paragraph (b)(1) provides that “[t]he Board . . . must find that [it] has jurisdiction over the specific matter at issue 

before the Board may determine its authority to decide the legal question.” 42 CFR § 405.1842(b)(1).
10

42 CFR § 405.1842(e)(1) (emphasis added). The first sentence of § 405.1842(e)(1) fixes when the 

thirty-date period for determining authority defined in the second sentence becomes operative, 

specifically, after the Board determines it has jurisdiction. Id. The provisions that 

follow—paragraphs (e)(2) and (e)(3)—simply mirror (e)(1)’s bifurcated structure. See id. 

§ 405.1842(e). At most, § 405.1842(e)(3)(i) provides greater specificity and guidance for 

implementing the second sentence of § 405.1842(e)(1); it does not purport to obviate or alter the 

import of the first sentence. See id. § 405.1842(e)(3)(i). 

To put it simply, § 405.1842(e)(3)(i) cannot reasonably be read in isolation from the first 

sentence of § 405.1842(e)(1), which states that the Board must consider its authority if and only if

the Board has made a finding that it has jurisdiction. See id. § 405.1842(e)(1).8 And it must also 

be read in conjunction with § 405.1842(b)(2), which expressly applies to “paragraph[] . . . (e)” and 

states that “the 30-day period . . . does not begin to run until the Board finds jurisdiction.”

Id. § 405.1842(b)(2). This is the only reasonable interpretation, and the regulation basically says 

as much. See id. § 405.1842(a)(4) (stating under the “Basis and scope” section that “[t]he provider 

has a right to seek EJR . . . if . . . [t]he Board fails to make a determination of its authority to decide 

the legal question no later than 30 days after finding jurisdiction . . . .”) (emphasis added).

For these reasons, the Court finds that 42 CFR § 405.1842 does not invariably require the

Board to render a decision on EJR within thirty days of receiving a complete EJR request. Under 

the regulation, the thirty day clock to render a decision on EJR does not begin to run until the 

Board finds it has jurisdiction. The regulation does not require the Board to determine jurisdiction

within thirty days, let alone any amount of time.

8 The Court is astounded that the Hospitals omitted the text of the first sentence of § 405.1842(e)(1) in their combined 

opposition and reply, especially because they quoted and discussed the second sentence at length. See Pls.’ Reply at 8, 

21, 33. The Hospitals obliquely refer to the first sentence in a glancing footnote. Pls.’ Reply at 23 n.12.
11

2. The Secretary’s Regulation is Consistent with the Medicare Act

The Hospitals can succeed on exhaustion only if the regulation is “arbitrary, capricious, or 

manifestly contrary” to 42 U.S.C. § 1395oo(f)(1). See Sebelius v. Auburn Reg'l Med. Ctr., 

568 U.S. 145, 157 (2013) (quoting Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 

467 U.S. 837, 844 (1984)). “This Court is satisfied that the regulations promulgated by defendant 

do not conflict with the plain language of the Medicare Act” and are not arbitrary or capricious.

Cape Cod, 565 F. Supp. 2d at 141; see also Alexandria Hosp. v. Bowen, 631 F. Supp. 1237, 

1244–45 (W.D. Va. 1986); Total Care, Inc. v. Sullivan, 754 F. Supp. 1097, 1103–04

(W.D.N.C. 1991); S.F. Gen. Hosp. v. Shalala, No. 98-cv-916 (SI), 1999 WL 717830, at *4–5 

(N.D. Cal. Sept 8, 1999); but see Minn. Hosp. Ass’n v. Bowen, 703 F. Supp. 780, 784–85 

(D. Minn. 1988).

Starting with the text. § 1395oo(f)(1) states that a provider who “may obtain a hearing 

under subsection (a) . . . may file a request for a determination by the Board of its authority to 

decide the question of law or regulations relevant to the matters in controversy.” 42 U.S.C. 

§ 1395oo(f)(1) (emphasis added). In other words, only providers who can obtain a hearing before 

the Board can request EJR. See id. The statutory criteria for hearing eligibility are defined at 

§ 1395oo(a). Id. § 1395oo(a). Additionally, certain determinations and decisions are entirely 

unreviewable. Id. § 1395oo(g). The “may obtain a hearing" proviso in § 1395oo(f)(1) provides the 

statutory ground for the jurisdictional requirements implemented in the Secretary’s regulations. 

See id. § 1395oo(f)(1); see also 42 CFR §§ 405.1840, .1842.

The thirty-day clock that the Hospitals allege applies to the Board’s determination of 

jurisdiction arises from the statutory requirement that the Board “shall render such determination 

in writing within thirty days.” 42 U.S.C. § 1395oo(f)(1) (emphasis added). But it is clear from 
12

context that “such determination” specifically refers to a “determination by the Board of its 

authority to decide the question of law or regulations relevant to the matters in controversy.” Id.

(emphasis added). Jurisdiction and authority are not “one and the same.” Cape Cod, 

565 F. Supp. 2d at 141. Thus, while the statute clearly imposes a thirty-day limit on the Board’s 

determination of its authority, the statute does not, by its terms, impose a thirty-day limit on the 

Board’s determination of jurisdiction. See 42 U.S.C. § 1395oo(f)(1). Hence, the Secretary’s 

decision to forgo a limit is not “manifestly contrary to the statute.” See Auburn Reg’l, 568 U.S. at 

157; see also Alexandria Hosp., 631 F. Supp. at 1244 (“[T]he statute itself suggests that an EJR 

request need not be considered before the [Board] determines it has jurisdiction over an appeal.”).

Nor is the implementing regulation arbitrary and capricious. It makes good sense not to 

impose a thirty-day limit on the Board’s determination of its jurisdiction because thirty days will 

not be enough time in all cases. See Alexandria Hosp., 631 F. Supp. at 1245. Contrary to what the 

Hospitals contend, the question of jurisdiction is not strictly preliminary; sometimes, it will be 

difficult and complex. The Secretary avers that this is such a case and the Court has no reason to 

disbelieve that representation. E.g., Def.’s MTD at 30–31. And, as the Hospitals concede, 

“statutory time limits on Board decision-making under § 1395oo are very much the exception, not 

the norm.” Pls.’ Reply at 26. The statute’s clear time limit for determining authority is far too thin 

a reed to sustain an atextual time limit for determining jurisdiction that applies in all cases 

regardless of complexity. And the Court sees no reason to reward the Hospitals’ impatience by 

inventing a new shortcut to judicial review. Doing so would run against the clear thrust of the 

Medicare Act’s jurisdictional provisions, which require exhaustion “[e]ven [when] the 

administrative process is time-consuming.” Cape Cod, 565 F. Supp. 2d at 140.
13

Additionally, the Secretary’s interpretation of the statute is not unreasonable merely 

because the Hospitals were unwilling to wait for a decision. Had the Hospitals continued waiting, 

they likely would have received a determination of jurisdiction earlier this year, as the Board

rendered jurisdictional determinations in several group appeals asserting substantively identical 

claims on April 6, 2023. ECF Nos. 30, 33. These recent decisions illustrate why it is important that 

providers not seek shortcuts where the law does not provide them. The parties and the Board

invested significant resources into developing the jurisdictional questions raised by the Hospitals’

claims. E.g., Def.’s MTD at 46. When the Hospitals ran out of patience, they filed suit in this Court 

(which is not subject to any time constraints) and effectively froze the proceedings before the 

Board, wasting their earlier efforts. See Def.’s MTD at 21. Meanwhile, other providers with 

substantially the same claims have already obtained determinations and appealed those 

determinations to this Court. ECF Nos. 30, 33. Simply put, the Hospitals’ decision to short-circuit 

the Board’s review did not hasten consideration of the merits.

Finally, whatever the Hospitals may think, the Board’s review was not “irrelevant.” Contra 

Def.’s Reply at 28. The Board adopted the position that the jurisdictional question was complicated 

and entangled with the merits. Saint Francis Administrative Record 1416; UCMC Administrative 

Record 3023. The Hospitals may disagree with the Board’s assessment, but they have not shown

that the Board’s position was unreasonable. And it is the Board’s prerogative to decide such 

questions in the first instance. See Cape Cod, 565 F. Supp. 2d at 141; see also Weinberger, 422 

U.S. at 765. Thus, “[t]he Court is satisfied that in order for [the Hospitals] to exhaust their 

administrative remedies, the Board must [first] be afforded an opportunity to consider the 

[jurisdictional issues] before the substantive issues may be properly before this Court.” Cape Cod, 

565 F. Supp. 2d at 141.
14

B. The Hospitals Are Not Entitled to Mandamus Relief

The Hospitals argue in the alternative that they are entitled to mandamus relief. Pls.’ MSJ 

at 42. But the Court has already held that there is no statutory or regulatory requirement that the 

Board render its jurisdictional determinations within a particular time. In other words, the Board

is not subject to a non-discretionary duty such that the Court could order mandamus relief. See In 

re Medicare Reimbursement Litig., 414 F.3d 7, 10 (D.C. Cir. 2005) (requiring “a clear duty to 

act”). Additionally, the Court does not believe that the Board has placed a “perpetual hold” on EJR 

requests. Contra Pls.’ MSJ at 43–44. The Board’s recent group appeals dismissals suggest that 

further jurisdictional determinations will be forthcoming after the Court grants the Secretary’s 

motion to dismiss. See ECF Nos. 30, 33. Under these circumstances, the Court does not find

“compelling equitable grounds” to justify exercising the extraordinary power of mandamus. See 

Nat’l Shooting Sports Found., Inc. v. Jones, 840 F. Supp. 2d 310, 323 (D.D.C. 2012).

Additionally, the Hospitals’ belated “unreasonable delay” claim is deemed waived. The 

Hospitals did not raise unreasonable delay in their Complaint or their motion for partial summary 

judgment. See Compl.; Pls.’ MSJ. Although they argue unreasonable delay in their opposition to 

the Secretary’s motion to dismiss, Pls.’ Reply at 32–37, it appears that they did so only because 

the Secretary pointed out this glaring omission in his motion, Def.’s MTD at 48 n.11. Notably, the

Hospitals’ motion for partial summary judgment fails to discuss or cite the multi-factor test 

detailed in Telecomms. Rsch. & Action Cent. v. FCC (“TRAC”), 750 F.2d 70, 80 (D.C. Cir. 1984), 

despite dedicating at least six pages to TRAC in its combined opposition and reply.9 Pls.’ Reply 

9 There are six TRAC factors: “(1) the time agencies take to make decisions must be governed by a rule of reason; (2) 

where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed 

in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be 

reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the 

court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; 
15 

at 32–37. It is hard to rationalize this omission given TRAC’s centrality to unreasonable delay 

claims. The Court will not permit the Hospitals to amend their Complaint via their briefs in 

opposition to the Secretary’s motion to dismiss. See Statewide Bonding, Inc. v. U.S. Dep’t of 

Homeland Sec., 980 F.3d 109, 117 n.5 (D.C. Cir. 2020). 

Even so, the Hospitals’ unreasonable delay claim would fail for the reasons stated in the 

Secretary’s reply, namely, that the TRAC factors do not support mandamus relief. See Def.’s Reply 

at 27–30. The Board’s jurisdictional determinations are not subject to any non-discretionary 

deadlines, and the nearly two-year delay alleged here is not unreasonable. See, e.g., Mercy Gen. 

Hosp. v. Becerra, 643 F. Supp. 3d 16, 32 n.12 (D.D.C. Nov. 17, 2022) (finding three-year delay 

insufficient to warrant relief). The Hospitals have not shown that further delay affects human 

health and welfare. See Sychev v. Jaddou, No. 20-cv-3484 (CKK), 2022 WL 951378, at *6 

(D.D.C. Mar. 30, 2022). And the Court has already made clear that it believes the Hospitals are at 

least partly responsible for any delay during the pendency of this civil action. Finally, the Hospitals 

do not allege bad faith or malfeasance. Pls.’ Reply at 35 n.24. The Hospitals’ belated unreasonable 

delay claim takes them nowhere.

* * * 

At bottom, this Court’s decision in Cape Cod still rings true: “Though Congress 

implemented the EJR provision to avoid unnecessary delays, those necessary to and inherent in 

the legal process are often unavoidable. The proper procedures must be followed[] and filing 

premature motions in an improper venue does little to mitigate the problem.” Cape Cod, 

565 F. Supp. 2d at 141. And yet, that is precisely what the Hospitals did. Although the Court urges 

(5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court 

need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably 

delayed.” Chowdhury v. Blinken, No. 21-cv-1205 (RCL), 2022 WL 136795, at *2–3 (D.D.C. Jan 14, 2022) (quoting 

TRAC, 750 F.2d at 80).