1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

AMERICAN HOSPITAL ASSOCIATION, 

et al.,

Plaintiffs,

v. Civil Action No. 14-851 (JEB)

SYLVIA M. BURWELL, in her official 

capacity as SECRETARY OF HEALTH 

AND HUMAN SERVICES,

 Defendant.

MEMORANDUM OPINION

The best medicine can sometimes be hard to swallow. More than two years ago, a set of 

Medicare service providers asked the Court to issue a writ of mandamus to compel the Secretary 

of Health and Human Services to process their long-pending claim-reimbursement appeals in 

accordance with statutory timelines. The Court declined to do so, believing the matter best left 

to the political process. The Court of Appeals disagreed, holding that this Court has jurisdiction 

to grant mandamus relief and remanding the case here for a determination on the merits. In 

response, the Secretary now moves to stay the proceedings until September 30, 2017, to allow 

HHS to move forward on various administrative and legislative efforts designed to tackle the 

backlog of reimbursement appeals. As was true two years ago, the Court is reluctant to 

intervene. But the backlog and delays have only worsened since Plaintiffs first sought the 
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Court’s help, and the Secretary’s proposed solutions are unlikely to turn the tide. The Court

accordingly will deny the Secretary’s Motion for Stay. 

I. Background

The Court offered a primer on Medicare reimbursement in its first Opinion in this case. 

See Am. Hosp. Ass’n v. Burwell (AHA I), 76 F. Supp. 3d 43, 46-48 (D.D.C. 2014), rev’d, Am. 

Hosp. Ass’n v. Burwell (AHA II), 812 F.3d 183 (D.C. Cir. 2016). It now briefly reviews the 

aspects of the administrative-appeals process relevant to the instant Motion.

Health-care providers and suppliers submit an extraordinary number of Medicare fee-forservice claims on behalf of the program’s beneficiaries — 1.2 billion in fiscal year 2014. See

Gov’t Accountability Office, Medicare Fee-for-Service: Opportunities Remain to Improve 

Appeals Process 1 (May 2016), http://www.gao.gov/assets/680/677034.pdf (GAO Report). A 

Medicare Administrative Contractor (MAC) processes each claim for reimbursement and decides 

whether to pay it or deny it as invalid or improper. See 42 U.S.C. § 1395kk-1(a). If the claim is 

denied, the provider may appeal. 

The Medicare Act sets out a sequential four-step administrative-appeal process, each of 

which must be completed within a statutorily provided deadline: (1) redetermination by the 

MAC, which must be completed within 60 days, id. § 1395ff(a)(3)(A), (a)(3)(C)(ii); (2) on-therecord reconsideration by a Qualified Independent Contractor (QIC), which must be completed 

within 60 days, id. §1395ff(c)(3)(C)(i); (3) review, including a hearing, by an administrative law 

judge in HHS’s Office of Medicare Hearings and Appeals (OMHA), which, absent a waiver,

must be completed within 90 days, id. § 1395ff(d)(1)(A); and (4) review by the Medicare 

Appeals Council within the Departmental Appeals Board (DAB), which must render a decision 

or remand to the ALJ within 90 days. Id. § 1395ff(d)(2)(A). If the provider’s claim is worth at 
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least $1,500, the DAB’s decision is subject to judicial review. Id. § 1395ff(b)(1)(E)(i), 

(b)(1)(E)(iii); 42 C.F.R. § 405.1006(c); 80 Fed. Reg. 57,827 (Sept. 25, 2015). When a statutory 

deadline lapses before a decision has been made, moreover, a provider may leapfrog its appeal to 

the next stage through a process referred to as “escalation.” See 42 U.S.C. §§ 

1395ff(c)(3)(C)(ii), (d)(3)(A), (d)(3)(B); 42 C.F.R. §§ 405.1104, 405.1108(d), 405.1132(b). 

Taking the statutory deadlines together, a Medicare-reimbursement claim should proceed 

through all four steps of the administrative-appeal process within one year — “and for years they

did.” AHA I, 76 F. Supp. 3d at 46. Recently, however, a massive accumulation of backlogged 

cases has triggered significant delays, particularly at step three — ALJ review. Between fiscal 

years 2010 and 2014, the number of appeals filed at step three grew 936% — from 41,733 to 

432,534. See GAO Report at 11. By the end of FY2014, 767,422 appeals were pending at step 

three, see Mot., Exh. 1 (Projections Chart) at 26, and 96% of ALJ decisions were issued well 

after the 90-day statutory deadline. See GAO Report at 18. In FY2014, it took OMHA an 

average of 415 days to process a step three appeal; it now takes 935 days. See HHS, Office of 

Medicare Hearings and Appeals (OMHA): Current Workload — Decision Statistics (July 25, 

2016), http://www.hhs.gov/omha/Data/Current%20Workload/index.html. 

Plaintiffs point to the Recovery Audit Program, which was “fully implemented” in 2010, 

AHA II, 812 F.3d at 186, as the “primary culprit in creating and sustaining” the backlog. See

Opp. at 5. Congress required the Secretary to set up the Program to identify under- and 

overpayments and recoup the latter. See 42 U.S.C. § 1395ddd(h)(1). To do so, the Secretary 

contracts with Recovery Audit Contractors (RACs), who are private entities that “audit providerfavorable MAC decisions in ‘post-payment’ review.” AHA I, 76 F. Supp. 3d at 47 (citing 42 

U.SC. § 1395ddd(f)(7)(A)). RACs are paid on a contingent basis — they “receive a cut of any 
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improper payments they recover” — “and can challenge claims going back as far as three years.” 

Id. (citing 42 U.S.C. § 1395ddd(h)(1); Statement of Work for the Medicare Fee-for-Service 

Recovery Audit Program 9-10, https://www.cms.gov/Research-Statistics-Data-andSystems/Monitoring-Programs/recovery-audit-program/downloads/090111racfinsow.pdf). 

Because a RAC’s decision to deny payment of a reimbursement claim is “appealable through the 

same administrative process as initial denials, the RAC program has contributed to a drastic 

increase in the number of administrative appeals.” AHA II, 812 F.3d at 187.

The Secretary agrees that the RAC Program is a contributor to the backlog, but also 

points to other sources: an increase in Medicare beneficiaries; a growing practice among some 

providers to appeal virtually every claim denial through ALJ review; and a significant rise in the 

number of appeals filed by Medicaid state agencies. See Mot., Exh. A (Declaration of Ellen 

Murray), ¶¶ 10-13.

Frustrated by the long delays, Plaintiffs — the American Hospital Association, Baxter 

Regional Medical Center, Covenant Health, and Rutland Regional Medical Center — filed suit 

in May 2014. They asked the Court to grant mandamus relief to compel the Secretary to 

adjudicate their pending administrative appeals in compliance with the statutory deadlines, as 

well as to comply with the statutory deadlines in administering the appeals process for all

hospitals. See ECF No. 1 (Complaint) at 21-22. Plaintiffs then filed a motion for summary 

judgment, see ECF No. 8, and the Secretary moved to dismiss for lack of jurisdiction. See ECF 

No. 12. 

The Court concluded that the jurisdictional and merits inquiries at issue merged and thus

resolved the parties’ motions together. AHA I, 76 F. Supp. 3d at 50. It analyzed six factors to 

determine whether the agency’s delay was “‘so egregious’ as to warrant relief,” id. (quoting 
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Telecomm. Research & Action Ctr. v. FCC, 750 F.2d 70, 79 (D.C. Cir. 1984)), and concluded 

that because of “HHS’s budgetary constraints, its competing priorities, and its incipient efforts to 

resolve the issue,” as well as Congress’s awareness of the problem, mandamus was not 

warranted. Id. at 56. It thus denied Plaintiffs’ motion for summary judgment and granted the 

Secretary’s motion to dismiss for lack of jurisdiction. Id.

Plaintiffs appealed, and the D.C. Circuit reversed and remanded with instructions for 

further proceedings. The Court of Appeals explained that the jurisdictional and merits inquiries

are distinct and should be approached separately. See AHA II, 812 F.3d at 190. It then 

addressed only the former, concluded that “the threshold requirements for mandamus jurisdiction 

are met,” and reversed this Court’s dismissal for lack of jurisdiction. Id. at 192. The Court of 

Appeals further directed this Court, on remand, to “determine whether ‘compelling equitable 

grounds’ now exist to issue a writ of mandamus,” id., and identified factors weighing in favor of 

and against mandamus. See id. at 192-93.

On remand, this Court held a status hearing at which the Secretary submitted that a stay 

of proceedings would be appropriate. The Court requested briefing, and the Secretary has now 

moved to stay this action until September 30, 2017, the close of the next full appropriations 

cycle. 

II. Legal Standard

“Cases may be stayed for any number of reasons. Parallel criminal prosecutions may be 

ongoing; dispositive appellate decisions may be pending; or the parties may otherwise desire 

some respite.” Liff v. Office of the Inspector General for the U.S. Dep’t of Labor, No. 14-1662, 

2016 WL 4506970, at *2 (D.D.C. Aug. 26, 2016). “To accommodate these ups and downs of 

litigation,” id., the Court possesses a “power to stay proceedings [that] is incidental to the power 
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inherent in every court to control the disposition of the causes on its docket with economy of 

time and effort for itself, for counsel, and for litigants. How this can best be done calls for the 

exercise of judgment, which must weigh competing interests and maintain an even balance.” Air 

Line Pilots Ass’n v. Miller, 523 U.S. 866, 879 n.6 (1998) (quoting Landis v. N. Am. Co., 299 

U.S. 248, 254-55 (1936)).

III. Analysis

Whatever this Court originally thought of the merits of this case, it must, of course, 

follow the Court of Appeals’ direction on remand. In its opinion, that court set out several 

considerations weighing for and against mandamus, each of which this Court addresses in the 

subsections that follow. See Parts III.A, B, infra. Weighing those considerations, as well as 

acknowledging the fact that the backlog had worsened since this Court’s 2014 decision, the 

Court of Appeals hypothesized that this Court, on remand, “might find it appropriate to issue a 

writ of mandamus ordering the Secretary to cure the systemic failure to comply with the 

deadlines.” AHA II, 812 F.3d at 193. The Court of Appeals nonetheless cautioned that “if the 

district court determines on remand that Congress and the Secretary are making significant 

progress toward a solution, it might conclude that issuing the writ is premature” and “consider 

such action as ordering the agency to submit status reports.” Id. If, however, “the political 

branches have failed to make meaningful progress within a reasonable period of time — say, the 

close of the next full appropriations cycle, . . . the clarity of the statutory duty likely will require 

issuance of the writ.” Id.

As a threshold matter, it is important to note that the question immediately before this

Court is whether to grant the Secretary’s Motion for Stay, not whether to grant mandamus relief. 

Similar to the issuance of mandamus, however, which requires a balance of the equities, see id.
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at 191, deciding whether a stay is appropriate requires the Court to assess the parties’ asserted 

interests, weigh the equities, and exercise its judgment. See Air Line Pilots Ass’n, 523 U.S. at 

879 n.6. The stay and mandamus inquiries thus are overlapping. The Court, consequently,

structures its analysis of the Secretary’s Motion for Stay around the Court of Appeals’ factors for 

and against mandamus and the critical consideration of whether the legislative and executive

branches are making “significant progress toward a solution.” AHA II, 812 F.3d at 193.

A. Factors Against Mandamus

As the Court of Appeals observed, “Perhaps counseling most heavily against mandamus 

is the writ’s extraordinary and intrusive nature, which risks infringing on the authority and 

discretion of the executive branch.” Id. at 192. Granting the writ in this case would almost 

surely require the Secretary to significantly alter the agency’s priorities and operations, 

particularly as to the RAC Program. The Court is mindful of the agency’s “comparative 

institutional advantage” in this domain and of the practical challenges that would flow from 

denying the stay and granting the writ. In re Barr Labs, Inc., 930 F.2d 72, 74 (D.C. Cir. 1991); 

see also AHA I, 76 F. Supp. 3d at 51, 53-54.

Likewise, the Court must consider “the Secretary’s good faith efforts to reduce the delays 

within the constraints she faces.” AHA II, 812 F.3d at 192. The Secretary repeatedly has 

assured the Court that resolving the ALJ backlog is “a matter of the highest priority,” Mot. at 2; 

Reply at 1, and has suggested the agency submit status reports every six months during the stay 

to enable the Court and Plaintiffs to monitor the political branches’ progress in reducing the

backlog. See Mot. at 10. Importantly, the Secretary appears to have devoted considerable effort

to designing and implementing various administrative initiatives to target the backlog, as 
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documented in the declaration of Ellen Murray, Assistant Secretary for Financial Resources and 

HHS’s Chief Financial Officer. See Mot., Exh. A.

Echoing a point the Court made in its prior Opinion, the Court of Appeals also cited as a 

factor against mandamus “Congress’s awareness of and attention to the situation.” AHA II, 812 

F.3d at 192 (citing 76 F. Supp. 3d at 56). Though still true, the force of Congress’s knowledge 

and ability to act as a reason to deny mandamus diminishes with the passage of time absent 

meaningful legislative action, particularly as the backlog and delays have worsened. 

Finally, the availability of escalation as a remedy counsels against the conclusion that the 

delays are so egregious as to warrant mandamus relief. Id. at 192. As the Court of Appeals 

observed, however, escalation “may offer less than full relief.” Id. ALJ review is an appellant’s 

first opportunity for a full evidentiary hearing, during which the provider may provide oral 

testimony and “engage with ALJs and respond to questions in real time.” AHA I, 76 F. Supp. 3d 

at 48. If a provider escalates past the QIC and ALJ, the DAB almost certainly will decide the 

appeal based only on the MAC record, for “although the DAB may conduct additional 

proceedings,” id. (citing 42 C.F.R. § 405.1108(d)(2)), it will not do so “unless there is an 

extraordinary question of law/policy/fact.” Id. (citation omitted). 

B. Factors for Mandamus

On the other side of the ledger are “several significant factors” favoring mandamus. 

AHA II, 812 F.3d at 193. Notably, the delays have resulted in a “real impact on ‘human health 

and welfare.’” Id. (quoting TRAC, 750 F.2d at 80). The problem, as this Court earlier 

explained, is that “[h]ospitals are deeply out of pocket due to denied claims.” AHA I, 76 F.

Supp. 3d at 52. In fact, Amicus Curiae The Fund for Access to Inpatient Rehabilitation reports 

that the problem has worsened. See Amicus Opp. at 14. Using statistics not available at the time 
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of its previous brief to this Court, Amicus offers a bleaker picture in connection with this 

Motion. In March 2015, 249 rehabilitation hospitals — 21.5% of the rehabilitation hospitals that 

participate in Medicare — together had pending appeals worth $135 million. Id. at 4-5. 

Rehabilitation hospitals, moreover, win 80% of their reimbursement claims on appeal. Id. at 5. 

That figure is even higher — 87% — when the win rate is calculated using the value, rather than 

number, of the claims, id., suggesting the vast majority of that $135 million rightfully belongs 

with the hospitals. But as long as the claims are tied up in the appeals process, they cannot 

access those funds. Because of the consequent financial burden, some providers are “forced . . . 

to reduce costs, eliminate jobs, forgo services, and substantially scale back,” all of which affects 

the quality and quantity of patient care. AHA I, 76 F. Supp. 3d at 52; see also Amicus Opp. at 

13-14, 16-17. These problems likely will worsen in the coming years because, as discussed 

below, the backlog is projected to grow considerably absent legislative intervention. See

Projections Chart. 

In addition, the “substantial discretion” granted to the Secretary by Congress “to 

implement [the Recovery Audit Program] and determine its scope” — including to curtail it as 

necessary to meet the statutory deadlines — favors granting the writ, as “congressionally 

imposed mandates and prohibitions trump discretionary decisions.” AHA II, 812 F.3d at 193

(citing 42 U.S.C. § 1395ddd(h)).

C. Progress Toward a Solution

Considering only the above arguments, given the extraordinary nature of the writ and the 

Court’s reluctance to insert itself into the management of a complicated agency process, the 

Court might be inclined to grant the Secretary’s Motion for Stay. Yet there is one more 

consideration critical to the Court’s ultimate decision: whether the administrative and legislative 
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fixes offered in the Secretary’s briefing constitute progress sufficient to warrant pausing this 

litigation until September 30, 2017. Unfortunately, the Court must conclude that they do not. 

The Secretary discusses two categories of interventions intended to combat the backlog: 

(1) administrative actions with and without impact projections — i.e., estimates of the effect on 

the backlog; and (2) legislation to reform the appeals process and provide the agency with 

additional funding. The Court looks at each.

1. Administrative Fixes

The numerous administrative actions for which the Secretary has impact projections can 

be grouped into four buckets. First, efforts to promote settlements: The Centers for Medicare 

and Medicaid Services (CMS) within HHS, which oversees the first two steps in the appeals 

process — redetermination by the MAC and reconsideration by the QIC — recently settled 

approximately 260,000 inpatient-hospital claims currently awaiting ALJ review. See Murray 

Decl., ¶ 19(a). And staff at OMHA — the office that oversees ALJ review – is working to 

facilitate settlement conferences between CMS and appellants with a threshold number of claims 

and/or amounts at issue pending before OMHA. Id., ¶ 19(e). The Secretary projects that those 

settlement-conference facilitations will reduce the number of appeals currently pending at 

OMHA by 27,000 by the end of FY2020. Id.

Second, changes to the administrative-appeals process: An appellant now may waive its 

right to an oral hearing before an ALJ and instead have its appeal adjudicated on the record by an 

OMHA senior attorney advisor and then reviewed by an ALJ on the papers. Id., ¶ 19(g). 

Appellants with 250 or more claims pending at OMHA may elect to have OMHA adjudicate 

their claims using statistical sampling and extrapolation. Id., ¶ 19(f). OMHA also has received 

permission to reemploy retired ALJs on a temporary and intermittent basis to conduct hearings 
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and issue decisions part-time. Id., ¶ 19(h). Together, those interventions are projected to enable 

OMHA to process an additional 56,000 appeals by the end of FY2020. Id., ¶ 19(f)-(h). The 

Secretary, furthermore, has offered suppliers of diabetic-testing and oxygen equipment in certain 

jurisdictions the opportunity to discuss their claims with the QIC at the reconsideration level, 

submit additional supporting documentation, and receive feedback and information on CMS 

policies and requirements. Id., ¶ 19(d). That initiative is projected to reduce by 13,000 the 

number of appeals that otherwise would have reached OMHA by FY2020. Id., ¶ 19(d)(ii). More 

significantly, based on the information the QIC obtains from those discussions, it will reopen 

certain reconsideration decisions pending at OMHA, which will resolve more than 202,000 

appeals currently pending at OMHA and, by FY2020, reduce the number of appeals that reach 

OMHA by 63,000. Id. 

Third, front-end limitations on provider activity: In certain jurisdictions, providers and 

suppliers now must obtain authorization from a MAC before providing particular items or 

services. Id., ¶ 19(c). Prior authorization is projected to reduce by 269,000 the number of 

appeals that otherwise would have reached OMHA by the end of FY2020. Id. 

Fourth, and finally, changes to the Recovery Audit Program: The Secretary has 

introduced three modifications to RAC contracts. Before referring a claim for recoupment, 

RACs must offer providers the opportunity to discuss the basis of the claim and submit 

additional information to substantiate it; RACs may only conduct a certain number of reviews

under a given topic unless they get approval from CMS for further reviews; and RACs will be 

paid only after their decisions are upheld by a QIC in a reconsideration decision or the timeframe 

to file an appeal at step two expires. Id., ¶ 19(b). Together, the three contract modifications are 
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projected to reduce by 22,000 the number of appeals that reach OMHA by the end of FY2020. 

Id.

In addition to the administrative actions with projected impacts, HHS plans to attack the 

backlog with several actions for which it cannot currently estimate numerical impact, including 

expanding access to electronic case-adjudication processing and web-based appeal-management 

systems; beefing up oversight efforts to increase consistency and reduce erroneous denials; 

training ALJs and staff on Medicare coverage law, policy, and administrative-appeal procedures; 

reorganizing and updating existing field offices and opening new ones; assigning appellants with 

at least 200 appealed reconsiderations to the same ALJ; and improving communication between 

the various actors involved in the appeals process. Id., ¶ 21. HHS has also implemented 

initiatives to reduce the current and projected backlog at the DAB, as some of the actions just 

described will increase the number of appeals it receives. The DAB-focused initiatives involve

hiring paralegals to help process cases, improving case management, and processing appeals 

electronically. Id., ¶ 24. In late June 2016, the Secretary issued a notice of proposed rulemaking 

that, if adopted, would codify many of the proposed administrative fixes in regulation. See

Reply, Exh. A.

Let us pause here. The previous five paragraphs are packed with impressive-sounding 

action items and numbers appending multiple zeros. Summing up, HHS asserts that these

administrative measures now underway for which it can project impact numbers will result in 

50% fewer backlogged OMHA appeals in FY2020 than would exist absent the interventions. 

See Murray Decl., ¶ 20. Sounds like “significant progress toward a solution,” doesn’t it? Alas, 

no. As is often the case, the devil is in the details. 
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Even assuming each one of the Secretary’s administrative fixes for which HHS can 

project impact numbers is implemented according to plan, the OMHA backlog will still grow 

every year between FY2016 and FY2020 — from 757,090 to 1,003,444 appeals. See Projections 

Chart. Admittedly, that is less bad than if the Secretary does nothing. Absent any intervention, 

the OMHA backlog at the end of FY2020 will be over 1,900,000. Id. But “significant progress

toward a solution” cannot simply mean that things get worse more slowly than they would 

otherwise. It has to mean real movement towards statutory compliance. The process must 

improve. By the Secretary’s own numbers, the proffered administrative fixes do not clear that 

bar. 

The scope of the initiatives involving the RAC Program give the Court particular pause. 

At the end of April 2016, there were around 300,000 RAC-related appeals pending ALJ review, 

which constituted a sizable portion — 31% — of all pending OMHA appeals. See id., ¶ 2; 

Projections Chart. Yet the only RAC-related action the Secretary reports to be undertaking or 

planning to undertake consists of three modifications to RAC contracts that will reduce the 

number of appeals that reach OMHA by FY2020 by just 22,000. See Murray Decl., ¶ 19(b). 

Twenty-two thousand is only about 7% of the current RAC-related OMHA backlog; it almost 

surely will be an even smaller percentage of the RAC-related OMHA backlog in FY2020. The 

Secretary’s failure to offer a more robust response to the high volume of appeals generated by 

the RAC Program — a program over which she has “substantial discretion,” AHA II, 812 F.3d at 

193 — is concerning. And that is so even without entertaining the argument from Plaintiffs and 

Amicus that there are reasons to doubt HHS’s estimates regarding the efficacy of its proposed 

modifications to the RAC contracts. See Opp. at 10; Amicus Opp. at 11-12. 
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2. Legislative Fixes

Administrative reforms are not the only arrows the Secretary has in her quiver. She also 

points to the improvements proposed by her sister branch — Congress. According to the 

Secretary, these legislative fixes will happen via two vehicles — the President’s FY2017 Budget 

and the Audit & Appeal Fairness, Integrity, and Reforms in Medicare Act of 2015 (AFIRM Act). 

If passed, they would increase OMHA and DAB appropriations by $1.3 billion over ten years 

and permit HHS to use RAC Program recoveries to supplement annual OMHA and DAB 

appropriations. See Murray Decl., ¶ 22(b). With that additional funding, OMHA would be able 

to dramatically expand ALJ review, on-the-record adjudications, and settlement-conference 

facilitations. Id., ¶ 22(b), (h), (i). 

The Secretary also focuses on the AFIRM Act’s policy reforms, which include letting 

OMHA use less expensive Medicare Magistrates instead of ALJs to adjudicate cases with low 

amounts in controversy; giving the Secretary the authority to require prior authorization for nonemergency items or services; instituting a filing fee for appeals, refundable to those appellants 

who receive a fully favorable determination; permitting the Secretary to adjudicate appeals using 

sample and extrapolation techniques and consolidate related appeals; requiring an adjudicator to 

remand an appealed claim to step one when a party submits new documentary evidence at or 

beyond step two; and allowing OMHA to issue decisions without a hearing if there are no 

material facts in dispute and the ALJ determines that binding authority controls the outcome. Id.,

¶ 22(a), (c)-(g). 

Combining the administrative measures and the legislative fixes would reduce the 

number of pending OMHA cases to 50,000 by FY2020 and totally eliminate the backlog of 

pending OMHA cases older than 90 days by FY2021. See Projections Chart. Plaintiffs scoff at 
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the notion that this Congress should be expected to deliver on the fixes the Secretary says it will, 

and certainly not within the period of time requested for the stay, which includes the upcoming 

elections, a lame-duck congressional session, and the new President’s first eight months in 

office, when he or she will be focused on his or her most critical legislative priorities. See Opp. 

at 12.

The Secretary rejoins that dismissing Congress’ potential to act is premature because the 

Court of Appeals “contemplated that Congress would be afforded some time to respond to [its] 

ruling.” Reply at 15. But it has been seven months since the Court of Appeals issued its 

decision, and Congress has taken no action. The Chairmen of the Senate and House Budget 

Committees have refused to hold hearings on the President’s FY2017 budget. See Amicus Opp.

at 6 (citing Ryan Murphy & William Allison, Joint Announcement from House and Senate 

Budget Committees on OMB Hearing, U.S. House of Representatives Comm. on the Budget 

(Feb. 4, 2016), http://budget.house.gov/news/documentsingle.aspx?DocumentID=394136). 

Finally, as the Secretary acknowledges, Congress did not fund the “robust increase in budget 

authority designated for increased adjudication capacity at OMHA” included in the President’s 

FY2016 budget. See Reply at 16. That Congress refused to do so when it had ample knowledge 

of the backlog supports the conclusion that it is unlikely to approve an increase for FY2017. The 

Secretary gives no reason to believe things will be different this year. In addition, it has been 21 

months since the AFIRM Act was reported by the Senate Finance Committee to the full Senate 

on December 8, 2015. See S. Rep. No. 114-177 (2015). No debate or vote has been scheduled, 

and the Secretary offers no evidence that any legislative action is imminent, that the bill has 

support in the House of Representatives, or that the President would sign it. See Amicus Opp. at 

8. 
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While it is not the Court’s role to comment on the priorities of a co-equal branch of 

government, it must draw the conclusion that Congress is unlikely to play the role of the cavalry 

here, riding to the rescue of the Secretary’s besieged program.

* * *

In sum, the Court cannot conclude that the Secretary’s current proposals will result in 

meaningful progress to reduce the backlog and comply with the statutory deadlines. Although 

the Court remains loath to intervene in the legislative and executive branches’ efforts — or lack 

thereof, as it may be — to respond to the problem, its “ultimate obligation is to enforce the law 

as Congress has written it.” AHA II, 812 F.3d at 193. The balance of interests drives the 

conclusion that there are equitable grounds for mandamus, and the Court will not issue a stay and 

further delay the proceedings. 

The Court, however, does not possess a magic wand that, when waved, will eliminate the 

backlog. Plaintiffs’ suggestion that the Court simply order HHS to resolve each of the pending 

appeals by the statutorily prescribed deadlines is extremely wishful thinking. See Opp. at 2. The 

Court will thus ask the parties to appear for a status conference to discuss how next to proceed. 

IV. Conclusion

For the foregoing reasons, the Court will deny Defendant’s Motion for Stay. A separate 

Order so stating will issue this day. 

/s/ James E. Boasberg

 JAMES E. BOASBERG

 United States District Judge

Date: September 19, 2016