NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 16-1641

____________

CHRIST THE KING MANOR, INC., BALDOCK ASSOCIATES, d/b/a Baldock Health Center;

BONHAM NURSING CENTER; BRIARLEAF NURSING AND CONVALESCENT 

CENTER, INC.; BROOKMONT HEALTH CARE CENTER, LLC; CATHEDRAL VILLAGE; 

CPSR ASSOCIATES, LLC, d/b/a Mon Valley Care Center; ELLEN MEMORIAL HEALTH 

CARE CENTER-HONESDALE, INC.; GREENLEAF NURSING AND CONVALESCENT 

CENTER, INC.; HUMBERT LANE ASSOCIATES, d/b/a Humbert Lane Nursing and 

Rehabilitation Center; KINKORA PYTHIAN HOME CORPORATION; KUTZTOWN 

MANOR, INC.; PICKERING MANOR HOME; RHEEMS NURSING AND 

REHABILITATION, LLC; SIEMON NURSING HOME, INC., d/b/a/Siemon’s Lakeview 

Manor Estate; CARBON-SCHUYKILL COMMUNITY HOSPITAL, INC. d/b/a St. Luke’s 

Miners Memorial Geriatric Center; SOUTHWESTERN GROUP, LTD, d/b/a Southwestern 

Nursing Center; SUSQUEHANNA VALLEY NURSING AND REHABILITATION CENTER, 

LLC; WINDSOR, INC., d/b/a Snyder Memorial Health Care Center; 890 WEATHERWOOD 

LANE OPERATING COMPANY, LLC, d/b/a The Rehabilitation and Nursing Center at Greater 

Pittsburgh; 4114 SCHAPER AVENUE OPERATING COMPANY, LLC, d/b/a Presque Isle 

Rehabilitation & Nursing Center

v.

SECRETARY UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; 

ADMINISTRATOR OF THE CENTERS FOR MEDICARE & MEDICAID SERVICES; 

FRANCIS MCCULLOUGH, in his official capacity as Associate Regional AdministratorRegion II Division of Medicaid and Children’s Health Operations of the Centers for Medicare 

and Medicaid Services (CMS)

Christ the King Manor, Inc., 

Baldock Associates, d/b/a Baldock Health Health Care Center,

Briarleaf Nursing and Convalescent Center, Inc.,

CPSR Associates, LLC, d/b/a Mon Valley Care Center;

Ellen Memorial Health Care Center-Honesdale, Inc.,

Greenleaf Nursing and Convalescent Center, Inc.,

Humbert Lane Associates, d/b/a Humbert Lane

Nursing and Rehabilitation Center,

Kinkora Pythian Home Corporation, Kutztown Manor, Inc.,

Pickering Manor Home, Rheems Nursing and Rehabilitation, LLC,
2

Siemon Nursing Home, Inc., d/b/a Siemon’s Lakeview Manor,

Carbon-Schuylkill Community Hospital, Inc., d/b/a St. Luke’s

Miners’s Memorial Geriatric Center, Susquehanna Valley

Nursing and Rehabilitation Center, LLC, 890 Weatherwood

Lane Operating Company, LLC, d/b/a Rehabilitation

and Nursing Center in Greater Pittsburgh, 4114 Schaper

Avenue Operating Company, LLC, d/b/a Presque Isle Rehabilitation

& Nursing Center,

Appellants

____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania 

(D.C. No. 1-14-cv-01809)

District Judge: Honorable John E. Jones, III

____________

Argued November 2, 2016

Before: HARDIMAN and SCIRICA, Circuit Judges,

and ROSENTHAL,* District Judge.

(Filed: December 12, 2016)

Daniel K. Natirboff [Argued]

Glenn A. Parno

Capozzi Adler

1200 Camp Hill Bypass

Suite 205

Camp Hill, PA 17011

Counsel for Plaintiffs-Appellants

Alisa B. Klein

Jeffrey E. Sandberg [Argued]

United States Department of Justice

Civil Division

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Counsel for Defendants-Appellees

 

* The Honorable Lee H. Rosenthal, Chief United States District Judge for the 

Southern District of Texas, sitting by designation.
3

____________

OPINION**

____________

ROSENTHAL, District Judge.

In 2008, the Department of Health and Human Services approved an amendment

to Pennsylvania’s Medicaid plan for reimbursing private nursing homes for patient care 

provided in 2008 and 2009. The amendment reduced the payments from what they 

otherwise would have been. The nursing homes sued, challenging the amendment’s 

approval and seeking an order requiring adherence to the prior year’s plan-reimbursement 

formula. The District Court affirmed the Secretary’s approval of the 2008 plan 

amendment. This is the second of two appeals resulting from that plan amendment.

The first appeal required the panel to decide a substantive challenge to the 

amendment. The panel found that the agency’s approval was arbitrary and capricious 

because the Secretary had failed to explain it adequately. The plan had been in effect for 

a year when the panel reversed and remanded to the District Court. After the panel 

remand, the agency reopened proceedings, reconsidered its determination, and in 2014 

again approved the 2008 plan amendment. The nursing homes went back to the District 

Court, which approved the agency’s redetermination. This second appeal followed, 

raising two issues, one procedural and one substantive. 

The procedural issue requires us to decide the effect of the order from our Court 

reversing the District Court’s judgment approving the agency’s 2008 action and 

 

** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.
4

remanding to the District Court with instructions to enter “a declaratory judgment for 

Plaintiffs, all in accordance with the opinion of this Court.” The nursing homes contend 

that this Order and the District Court final judgment that followed precluded any further 

agency action. The substantive issue requires us to decide whether, if the agency could 

reconsider its earlier determination, that reconsideration had to be limited to the 

predictive data relied on in the initial approval, or whether the agency could also consider

the data collected from actual experience with the amended plan from 2008 to 2009, the 

year it had been in effect. 

We find the agency’s reopening and reconsideration consistent with the first 

panel’s mandate reversing and remanding to the District Court with instructions to issue a 

judgment “in accordance with” the panel’s opinion. We find the agency’s reliance on the 

actual-experience data accumulated after the original determination consistent with the 

case law and with common sense. Finding no error, we will affirm the judgment of the 

District Court.

I.

Medicaid and Medicare are “cooperative federal-state program[s] under which the 

federal government furnishes funding to states for the purpose of providing medical 

assistance to eligible low-income persons.” Pennsylvania Pharmacists Ass’n v. 

Houstoun, 283 F.3d 531, 533 (3d Cir. 2002) (en banc). To qualify for federal funding, a 

participating state must submit a plan for medical assistance and any proposed plan 

amendment to the Secretary of Health and Human Services, through the Centers for 

Medicare and Medicaid Services (“CMS”). 42 U.S.C. § 1396a(a); 42 C.F.R. § 430.10. 
5

That plan must detail the state’s program and show its compliance with the Medicaid Act. 

42 U.S.C. § 1396a(a); 42 C.F.R. § 430.10; see Christ the King Manor, Inc. v. Sec’y U.S. 

Dep’t of Health & Human Servs. (“Christ the King I”), 730 F.3d 291, 297 (3d. Cir. 2013). 

The Medicaid Act sets out procedures and criteria for rates to pay participating 

providers. 42 U.S.C. § 1396a(a)(30)(A). Section 30(A) requires a state to “assure that 

payments to providers produce four outcomes: (1) ‘efficiency,’ (2) ‘economy,’ 

(3) ‘quality of care,’ and (4) adequate access to providers by Medicaid beneficiaries.” 

Pennsylvania Pharmacists Ass’n, 283 F.3d at 537 (quoting 42 U.S.C. § 1396a(a)(30)(A)). 

CMS is required to review state plans and proposed plan amendments to ensure 

compliance with § 30(A). Christ the King I, 730 F.3d at 297. 

Pennsylvania uses a “case-mix rate” to determine how much Medicaid will

reimburse private nursing homes for the covered care they provide. Id. at 298. The casemix rate uses a formula to generate per-diem reimbursements for each nursing home. Id. 

In June 2005, Pennsylvania’s Department of Public Welfare determined that 

reimbursement rates had increased too much and too fast, and that absent corrective

action, there would not be enough money to reimburse nursing homes for the costs they 

incurred. Id. To slow the rate increases, the Department proposed an annually 

determined “budget adjustment factor,” abbreviated as BAF. Id. The BAF is a fraction 

by which the case-mix rate is multiplied to determine the net-reimbursement rate. Id. 

Although the Department portrayed the BAF as an interim measure to be applied in the 

2005 to 2006 fiscal year, the BAF became a fixture in Pennsylvania’s reimbursement 
6

formula. Id. The BAF was recalculated each year based on the Pennsylvania 

legislature’s budget-allocation decisions.1 Id. at 298–99. 

In 2008, Pennsylvania submitted the proposed plan amendment designated as 

SPA 08-007 to CMS for approval. That amendment would adjust the BAF for fiscal year 

2008 to 2009 to make the case-mix payment rate 9.109% lower than it would have been 

using the existing plan. Id. at 301. CMS approved the proposed amendment in 

December 2008. The new rates were retroactively applied to July 2008, the beginning of 

the 2008 to 2009 fiscal year. Id. at 302. Fifty-three private nursing homes sued, alleging 

that CMS had approved the amendment without considering its effect on the quality of 

care, as § 30(A) required. Id. The nursing homes asked the District Court to order

Pennsylvania to reimburse them using the case-mix rate without the BAF decrease. Id. 

The District Court entered summary judgment for the government defendants, 

finding that CMS had reasonably determined that the plan amendment complied with 

§ 30(A). Id. at 303. The nursing homes appealed. In Christ the King I, the panel 

reversed because the Secretary had failed to “articulate a satisfactory explanation” for her

determination that the revised payment method would not adversely impact the quality of 

care. Id. at 314. The panel remanded to the District Court “with instructions to enter a 

declaratory judgment in favor of Plaintiffs on their claim that HHS’s approval of [the 

amendment] was arbitrary and capricious under the APA.” Id. at 321. The panel’s 

 

1 The case-mix rate was reduced by the percentage defined in that year’s BAF; the 

2005 to 2006 rates were reduced by 4.878%, the 2006 to 2007 rates by 6.245%, and the 

2007 to 2008 rates by 6.806%. Christ the King I, 730 F.3d at 299. 
7

mandate added that the District Court was to enter “a declaratory judgment for Plaintiffs, 

all in accordance with the opinion of this Court.” 

The panel noted that it did not “imply that the payments Pennsylvania made to 

providers during the 2008–09 fiscal year were in fact inconsistent with any of Section 

30(A)’s requirements.” Id. at 314. The panel also noted that it did “not mean that 

Plaintiffs will necessarily be entitled to a rate recalculation” or that “they should have 

been paid in accordance with the previously approved state plan,” which had not used the 

budget-adjustment factor. Id. at 314 n.25. The panel made clear that “[w]hen, as here, 

‘the record before the agency does not support the agency action,’ the agency may be 

afforded an opportunity ‘for additional investigation or explanation,’ upon which the 

agency could lawfully base its action.” Id. (quoting Fla. Power & Light Co. v. Lorion, 

470 U.S. 729, 744 (1985)). 

Back at the District Court, the parties disagreed about how the Court should word

its judgment. The nursing homes proposed language expressly barring CMS from any 

further review of the disapproved amendment. The government proposed language 

expressly remanding the case to CMS for further consideration. The District Court 

rejected both proposals. In December 2013, the District Court entered a judgment that 

quoted the mandate from Christ the King I. The judgment read as follows:

Pursuant to the mandate of the United States Court of Appeals for the Third 

Circuit issued on September 19, 2013, it is hereby ordered that: 

Judgment is entered in favor of Plaintiffs on their claim that the Department 

of Health and Human Service’s approval of SPA 08-007 was arbitrary and 

capricious. 
8

In May 2014, CMS informed Pennsylvania that the agency would reopen the 

record and reconsider whether the amended repayment rates that had been in effect from 

July 2008 through June 2009 were consistent with the Medicaid Act. CMS invited 

Pennsylvania to submit evidence on the impact the rates had on the quality of care. In 

August 2014, Pennsylvania submitted a letter explaining why the amended rates were 

consistent with “efficiency, economy, quality of care and access to care.” The letter 

included supporting data that showed the actual experience under the revised rates during 

the year they were in effect before the panel decision issued. That data obviously did not 

exist when CMS initially approved the plan amendment in December 2008. In December 

2014, the Secretary, through CMS, issued a revised determination with a detailed 

explanation concluding that the amendment’s payment method was consistent with the 

quality-of-care requirement. 

While CMS was reconsidering the amended rates, 21 of the original 53 nursing 

homes went back to the District Court to ask for an injunction preventing CMS from 

reconsidering the plan amendment. When the Secretary issued the revised determination 

approving the amendment, the 21 nursing homes moved to set it aside as contrary to 

Christ the King I. The nursing homes did not reprise their earlier substantive challenge to 

the merits of the approval. Instead, they argued that Christ the King I precluded CMS 

from reconsidering the plan amendment at all. 

The District Court rejected the nursing homes’ arguments. It concluded that 

Christ the King I had “explicitly license[d]” a “remand for further agency proceedings” 

and that its own prior judgment was “best understood” as implicitly remanding to CMS 
9

for further proceedings. Christ the King Manor, Inc. v. Burwell, 163 F. Supp. 3d. 123, 

131–32 (M.D. Pa. 2016). 

The nursing homes raised another argument before the District Court. They 

contended that the agency’s redetermination was inconsistent with § 30(A) because it

relied on the data measuring the actual impact of the revised rates on the quality of care 

in nursing homes during 2008 and 2009, instead of limiting what it considered to the

predictive data available in 2008, when the agency first reviewed the proposed plan 

amendment. The nursing homes argued that to the extent the record allowed remand and 

reconsideration, CMS was limited to using the predictive data available when it first

approved the revised reimbursement rates. The District Court rejected this argument and 

found that the statute allowed using the later quality-of-care data from the year of actual 

experience under the reduced payment rates. Id. at 133–35.

II.

This Court “appl[ies] de novo review to a district court’s grant of summary

judgment in a case brought under the APA, and in turn appl[ies] the applicable

standard of review to the underlying agency decision.” Pennsylvania Dep’t of Pub.

Welfare v. Sebelius, 674 F.3d 139, 146 (3d Cir. 2012) (internal quotation marks omitted).

“The underlying agency decision is reviewed under the APA, which requires courts to set 

aside an agency decision that is ‘arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law,’ or that was conducted ‘without observance of procedure 

required by law.’” Id. (quoting 5 U.S.C. § 706(2)(A) & (D)). “The scope of review 

under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its 
10

judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm 

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). This Court exercises plenary review over 

the District Court’s interpretation of the prior panel mandate. Kilbarr Corp. v. Business 

Sys. Inc., 990 F.2d 83, 87–88 (3d Cir. 1993). 

III.

The nursing homes argue that Christ the King I did not authorize the District Court 

to allow the agency to reopen the proceedings, reconsider the proposed amendment, and 

issue a redetermination. In Christ the King I, the panel found that the agency’s decision 

was arbitrary and capricious. The panel mandate remanded the case to the District Court 

“for entry of a declaratory judgment for Plaintiffs, all in accordance with the opinion of 

this Court.” The panel’s opinion and mandate did not address further agency action after 

the remand to the District Court. The District Court’s final judgment tracked the

mandate’s language. 

When an appellate court “direct[s] the district court to act in accordance with [its] 

opinion . . . the opinion becomes part of the mandate and must be considered together 

with it.” In re Chambers Dev. Co., Inc., 148 F.3d 214, 224 (3d Cir. 1998) (internal 

quotation marks omitted). The District Court followed this rule in holding that its final 

judgment was “best understood as an implicit remand” to the agency for further 

consideration. Christ the King Manor, Inc., 163 F. Supp. 3d. at 132. 

We agree that the panel’s opinion and mandate in Christ the King I authorized the 

District Court to allow the agency to reopen proceedings and issue a redetermination. 
11

The panel held that the Secretary’s finding was arbitrary and capricious, but the panel 

opinion stated that the holding did not:

mean that Plaintiffs will necessarily be entitled to a rate recalculation, and 

we in no way suggest that they should have been paid in accordance with 

the previously approved state plan, which did not involve the use of any 

BAF for the 2008–09 fiscal year. When, as here, “the record before the 

agency does not support the agency action,” the agency may be afforded an 

opportunity “for additional investigation or explanation,” upon which the 

agency could lawfully base its action. Fla. Power & Light Co., 470 U.S. at 

744, 105 S.Ct. 1598. Cf. 42 U.S.C. § 1316(a)(4) (providing that, when a 

court of appeals reviews a state’s appeal of an agency decision regarding a 

state plan, the court “may remand the case to the Secretary to take further 

evidence, and [she] may thereupon make new or modified findings of fact 

and may modify [her] previous action”).

Christ the King I, 730 F.3d at 314 n.25. As the District Court noted, “if the panel did not 

intend for there to be a remand for further agency proceedings, this footnote would be but

a gratuitous tease to HHS.” Christ the King Manor, Inc., 163 F. Supp. 3d at 131. 

Other language from the panel opinion in Christ the King I also supports the 

District Court’s ruling allowing further agency proceedings. The opinion stated, “[t]his 

appeal provides an opportunity for [the plaintiffs] to obtain some measure of relief, since, 

if the agency’s action was arbitrary or capricious under the APA, we must set that action 

aside and require the agency to conform its action to federal law.” Christ the King I, 730 

F.3d at 304 n.18. The opinion also cited Florida Power & Light Co. v. Lorion, which 

sets out the well-settled principle that “[i]f the record before the agency does not support 

the agency action, . . . the proper course, except in rare circumstances, is to remand to the 

agency for additional investigation or explanation.” Id. (quoting 470 U.S. at 744). 
12

Established administrative law principles provide further support for allowing the 

agency to reopen, reconsider, and redetermine the validity of the 2008 plan amendment. 

See E.E.O.C. v. Kronos Inc., 694 F.3d 351, 361–62 (3d Cir. 2012), as amended (Nov. 15, 

2012) (“When an appellate court does not issue specific instructions on how to proceed, 

the question as to what further proceedings can be had consistent with the opinion of the 

appellate court must be determined from the nature of the case and the pertinent statutory 

provisions.”) (internal quotation marks omitted). Under the APA, a court may find an 

agency’s action arbitrary and capricious, but the court is “not generally empowered to 

conduct a de novo inquiry into the matter being reviewed and to reach its own 

conclusions based on such an inquiry.” I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 

(2002) (quoting Fla. Power & Light Co., 470 U.S. at 744). And nothing in Christ the 

King I indicates that this case was the “rare circumstance” precluding further agency 

action contemplated by Florida Power & Light. 470 U.S. at 744; see Yusupov v. Att’y 

Gen. of U.S., 650 F.3d 968, 993 (3d Cir. 2011) (finding a “rare circumstance” that did not 

support agency remand when it had twice considered the record and there were no 

additional facts or evidence that could be developed). Absent a rare circumstance, the 

ordinary and proper course is for an appellate court’s remand to the district court to allow 

the agency to conduct additional investigation or provide additional explanation. The 

District Court did not err by allowing CMS to reopen the deliberations and issue a 

redetermination.2

 

2 We need not address the nursing homes’ remaining arguments that reopening the 

approval process was an unlawful exercise of the Secretary’s statutory or constitutional 
13

IV.

Because we hold that the agency’s further consideration was proper, we consider 

whether the Secretary could reasonably rely on actual-experience data rather than only on 

the predictive data used when the plan amendment was first approved in 2008. As a 

threshold matter, the parties dispute whether this issue is properly before this Court. The 

nursing homes first raised the issue in their summary judgment briefing before the 

District Court, which found that the delay in raising the issue neither waived it nor caused

the agency unfair prejudice. Christ the King Manor, Inc., 163 F. Supp. 3d. at 133 n.8. 

We agree. And in light of our disposition on the merits, the waiver argument is moot. 

See United States v. Brown, 547 F. App’x 150, 152 n.2 (3d Cir. 2013) (“In light of our 

disposition of the appeal on the merits, we need not decide the applicability of the waiver 

provision.”). 

As stated above, we review the agency’s decision under an arbitrary and 

capricious standard. Under this standard, we “may not set aside an agency rule that is 

rational, based on consideration of the relevant factors and within the scope of the 

authority delegated to the agency by the statute.” Motor Vehicle Mfrs. Ass’n of U.S., Inc., 

436 at 42. We note that § 30(A) does not forbid considering the actual-experience data in 

reopened proceedings, even if that data did not exist during the initial examination and 

approval. Id. at 43 (“[A]n agency rule would be arbitrary and capricious if the agency 

has relied on factors which Congress has not intended it to consider.”). Other provisions 

 

authority or that the Secretary was required to appeal the District Court’s final judgment 

following the first appeal in order to reopen the record and reconsider whether to approve

the amendment. 
14

of the Medicaid Act reinforce the Secretary’s decision to use the actual-experience data

from 2008 to 2009 in the 2014 reexamination and redetermination. Under 42 U.S.C. 

§ 1396n(f)(2), the Secretary may ask the State for “any additional information which is 

needed in order to make a final determination with respect to the request.” The Secretary 

did so here. After this Court held that the Secretary’s 2008 approval of the plan 

amendment was insufficiently explained and therefore arbitrary and capricious, the 

Secretary reopened the investigation and requested additional information from 

Pennsylvania. The State submitted hundreds of pages of supporting documents,

including data showing that the reduced payments had not negatively impacted the 

quality of care the nursing homes provided during the year the reduced rates had been in 

effect. Nothing in § 1396n(f)(2) prohibits asking for or using that information. The 

statute instead states that the Secretary may request “any additional information which is 

needed” to approve or deny a proposed plan amendment. 

The nursing homes conceded at oral argument that if the data showing the actual 

effect of the amended plan reimbursement rates had shown a detrimental effect on the 

quality of care due to the decrease in payments compared to what the amounts would 

have been under the prior year’s reimbursement rates, their argument would be reversed. 

The nursing homes would then flip sides to argue that the Secretary must consider the 

recent actual-experience data. That says it all, or at least enough. The Secretary had the 

power to seek more information under § 1396n(f)(2). She did not act arbitrarily and 

capriciously by considering that information in the § 30(A) approval process.
15

Common sense also supports the Secretary’s interpretation of § 30(A) to allow the 

agency to consider the actual-experience data in reexamining the proposed plan 

amendment. The Secretary need not blind herself to the more recent and accurate 

available evidence of a challenged payment rate’s actual impact on the quality of care for 

Medicaid beneficiaries. “To find the Secretary’s consideration of more recent data 

impermissible would be a foray into judicial abstraction.” Christ the King Manor, Inc.,

163 F. Supp. 3d. at 137. The data showing the actual impact of the lower payments the 

2008 plan amendment authorized is clearly more recent and more accurate than the 

predictive data available in December 2008, when the agency first examined the 

proposed change.3 It makes little sense for the Secretary to ignore the “answers to the 

test.”

V.

The nursing homes also argue that the Secretary’s 160-day delay in reopening 

approval proceedings after the District Court entered final judgment should result in 

judgment in their favor. See 42 U.S.C. § 1316(a)(1) (“the Secretary . . . shall, not later 

than 90 days after the date the plan is submitted to him, make a determination as to 

whether it conforms to the requirements for approval . . . .”). Nothing in the statute 

indicates that the 90-day timeline controls here, when a plan amendment is reexamined 

 

3 Our holding is limited to the facts and circumstances of this case. We do not 

hold that in the ordinary approval process, the agency can delay deciding a proposed plan 

amendment’s compliance with § 30(A) until the amendment has been in effect for an 

extended period and then consider the actual impact of the proposal. See 42 C.F.R. 

§ 430.20 (noting the earliest effective date that a plan may be become effective after 

review). 
16

after judicial review and rejection. And, as the government notes, even if we found that 

the statutory timeline did apply, under § 1396n(f)(2), a requested plan amendment is

deemed approved if not considered within that timeline. See 42 U.S.C. § 1396n(f)(2) (“A 

request to the Secretary from a State for approval of a proposed State plan or plan 

amendment . . . shall be deemed granted unless the Secretary, within 90 days after the 

date of its submission to the Secretary,” denies the request in writing or requests “any 

additional information which is needed” to make a final determination.). This argument 

does not weigh in favor of reversal.

VI.

We will affirm the judgment of the District Court.