UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) M ERCY GENERAL HOSPITAL , et al. , ) ) Plaintiff s, ) ) v. ) Civil Action No. 21-1397 ( RBW ) ) XAVI E R BEC E RRA , in his offic ial ) c apacity as Secretary of the Department of ) Health and Human Serv ices , ) ) ) Defendant . ) )
MEMORANDUM OPINION
T he pl aintiff s, seventy

- five acute care hospitals located in California , b ring this civil action against the defendant, Xavier Bec e rra, in his official capacity as the Secretary (t he

“ Secretary ”) of the United States Department of Health and Human Services (t he “ Department ”), challenging (1) the Secretary ’s Provider R eimbursement Review Board ’s April 15, 2021 D enial of Request for E xpedited J udicial R eview pursuant to Title XVII I of the Social Security Act , 42 U.S.C. § 1395oo (f)(1) , s ee First Amended Complaint (“ Am . Compl.”) ¶¶ 1–3, 166–83, ECF
No . 7, and (2) the lawfu lness of regulat or y rule 42 C.F.R. § 413.89(e)(2) (iii) ( the “2020 f inal rule”) , see id. ¶¶ 190–203, pursuant to the A dministrati ve Procedure Act , 5 U.S.C. § 706(2)(A),

see id. ¶¶ 185, 205. Currently pending before the Court is the Def endant’ s Motion to Dismiss (“De f. ’s Mot.” or the “ Secretary ’ s motion to dis miss ”), ECF No. 25. Upon careful consideration2 of the parties’ subm issions, 1 the Court concludes for th e following reasons that it must grant the Secretary ’s motion to dismiss.
I. BACKGROUND The Court previously d escribed much of the background relevant to this case in an opinion reso lving the plaintiff s’ initial claim seeking judicial review of a decision by the Secretary in a prior case , see Mercy Gen. Hosp. v. Azar, 344 F. Supp. 3d 321, 326–33 (D.D.C. 2018) (“ Mercy I ”), and in an opinion re solving a subsequent motion that sought reconsideration of the Court’ s prior ruling , see Mercy Gen. Hosp. v. Azar, 410 F. Supp. 3d 63, 68–70 (D.D.C. 2019) (“ Mercy I I”), and therefore will not reiterate that information again here

. The C o urt will, however, briefly discuss the stat utory, regulatory, and factual bac kgro und of th is case as rel a te d
to t he issues the Court must now conside r in resol ving the Secretary ’s motion to dismiss

. A. Statutory and Regulatory Background
1. The Medicare Progra m The Medicare program, established in 1965 as Title XVIII of th e Social Securi ty Act, 42 U.S.C. §§ 1395–1395lll (2012) (the “ Medicare Act ”) , “is a federally funded medical insurance program for the elderly and disabled,” Fischer v. United States , 529 U.S. 667, 671 (2000) (internal citation omitted)

. Part A of the Medicare Act provi des in surance cov erage to eligible beneficiaries for the cost of inpatient hospital care, home health care, and hospice

s ervices, see 42 U.S.C. § 1395c, and Part B provides supp lemental coverage for outpatient hospital care and other types of ca re not cove red b y Part A, se e id. § 1395k. As the Court previously explained, see Mercy I, 344 F. Supp. 3d at 328 , if Medicare patients fail to p ay the

1 In addition to the filings already identifi e d, the Court con sidered the followi ng submissions in rendering it s decision: (1) the defend an t’ s Memorandum of P oints and Authorities in S u ppor t of De fendant ’ s Mot ion to Dismiss (“ Def. ’ s Mem. ” ), ECF No. 25

- 1; (2) the Plaintiffs ’ Opposition to Motion to Di smiss (“ Pl s. ’ Opp ’n ”) , ECF No. 26 ; an d (3 ) the D efendant ’ s Reply to Plainti ffs’ O pposition t o Defendant ’ s Motion to Di smi ss ( “ Def. ’s Rep ly ”) , EC F No. 2 9.3 deductible and coinsurance payments that they owe to providers, the providers m ay seek reimbursemen t from the Cent ers for Medicare & Medicaid Services (“CMS”) for these unpaid amounts, which are known as “bad debts,” see 42 C.F.R. § 413.89(e). CM S administers the Medicare program on behalf of the Secretary, see Ark. Dep ’ t of Health & Hum . Servs. v. Ahl bo rn , 547 U.S. 268, 275 (2006), “through contracts with [M]edicare adminis tr ative contractors,” 42 U.S.C. §§ 1395h(a), 1395u(a), which are known as “fiscal intermediar [ ies ,] ” 42 U.S.C. § 1395kk-1( e) (2) (B)

. The fiscal intermediaries det ermine the amount of reimbursement for bad debts providers will receive

. See 42 U.S.C. § 1395kk- 1(a)(4)

. A provider who “is dissa ti sfied with a final determination of . . . its fiscal intermediary [,]” 42 U.S.C. § 1395oo(a)(1)(A)(i), “may obtain a hearing . . . by [the] Provider Reimbursement Review Board [ (the “Boar d”)][,]” id. § 1395oo(a). T hat provider “ may file a request for a determination by the Board of its authority to decide [a] question of law or regulations relevant to the m atters in controversy [.]” Id. § 1395oo( f)(1)

. Th e Board “sh all render s uch determinati on in writing withi n thirty days ” and “ the determination shall be considered a final decision and not subject to review by the Secretary.” Id. If “the Board determines

. . . th at it is without a uthority to deci de the question,” the provider may “obtain judicial review of a ny action of the fiscal intermedi ary which involves a question of law or regulations relevant to the matte rs in controversy [. ]” Id

. If the Board fails to ren der a de termination as to whether it has authority to decide the question presented withi n thirty days, “the provider may bring a civil action (within six ty days of the end of such period ) with respect to the matter in con troversy contained in such request for a hearing.” Id. Mor eover , provi der s

“ shal l ha ve the ri ght to obtain judi cial review of a ny final decision of the Board [.] ” Id.4 Additionally, t he Department has established a process by which a provider enti tled to judicial review under 42 U.S.C. § 1395oo(f)(1) ma y obtain “ expedited judicial review .” See 42 C.F.R. § 405.1842. T he Board

mu st grant [a request for expedited judicial review] for a legal question relevant to a specific matter at issue in a Board appeal if the Board determines the following conditions are satisfied: ( i) The Boa rd has jurisdiction to conduct a hearing on the spec ific matter at i ssue . . . [but] [ 2 ] ( ii) The Board lacks the authority to decide a specific legal question relevant to the specific matter at issue because the legal q uestion is a challenge e ither to the c onst itution ality of a provision of a sta tute, or to the substantive or procedural valid ity of a regulation or CMS Ruling. [ 3 ] Id. § 405.1842(f)(1). However, the Boar d must deny a request for expedited judicial revie w if any of the following apply: ( i) The Board determines tha t it does not ha ve jurisd iction to conduct a hearing on the specific matte r at issue

. . . [,] (ii) The Board determines it has the a uthority to decide a specific legal question relevant to t he speci fic matter at is su e because the legal questio n is neither a challenge to t he constitutionality of a provision of a statute, nor a chall enge to the substantive or procedural validity of a reg ulatio n or CMS Ruling [, or] (iii) The Board does not h ave sufficie nt information t o de termine whether the criteria specified in paragraph (f )(1)(i) or (f)(1)(ii) of this secti o n are met. Id. § 405.1842(f)(2). The Depar tment has also clarified that a “Boa rd decision is final ” only when it is “one of the Board decision s specified in § 405.1875 (a)(2)(i) through (a)(2)(iii) ” or i s “ deemed to be final by the [CMS] Administrator under § 405.1875(a)(2)(iv) [,] ” and it is “not reverse d, affirmed,

2 The Bo ard has jurisdiction o ver a claim w hen a provider “ is dissatisfie d with a final determ ination ” of the ir fisca l interm ediary or the Secretary ; “ the amount in controversy is $ 10,000 or mor e[ ;] ” and the “ provider files a request fo r a hear in g within 180 days after notice of the [ ] final deter mination [.] ” 42 U.S.C. § 1395oo (a).

3 T he Board “ must comply with all the provisions of Title XVIII of the [Medicare] Act and regul ations issued ther eu nder, as well as CMS Rulings iss ued under t he authority of th e [CMS] Administrator [ ,] ” 42 C.F.R

. § 405.1867 , and t herefore, does not have the authority t o determine the vali dity of such law s and regulations as the y apply to mat ters o ver which they have ju ri sdict ion , see 42 C.F.R. § 40 5. 1842 (f)(1)(i i).5 modified, or remanded by the [CMS] Administrator [.] ” Id. § 405.1877(a )(3 ). The Board d ecisions specified in 42 C .F.R. § 405.1875(a )(2) are: (i) A Board hearing decision . . . [,] ( ii ) A Board dismissal decis ion . . . [,] (iii) A Board [expedite d jud icial review] decision , but only the question of whether there is Board jurisdiction over a specific matter at is sue in t he d ecision; the [CMS] Administrator may not rev iew the Board ’ s determination in a decision of its auth orit y to decide a legal question relev ant to the m atter at issue . . . [, o r] (iv) Any other Board dec ision or action d eemed to be final by the [CMS] Admi nistrator

. 42 C.F.R. § 405.1875(a)(2). Any B oard decision that is final is “sub ject to judicial review under [42 U.S.C. § 1395oo (f) .]” Id. § 405.187 7(a)(3 ).
2. The 2020 Final Rule In September 2020, t he Secreta ry issued new regulations governing Medicare bad debt s, which apply re troactively

. Se e 42 C.F.R. § 413.89. To receive reimb ur sement under these new regulations for a Medicare bad debt assoc iated with indigent dual eligible Medic are beneficiaries , 4 a provider “ [m ]ust submi t a bill to its Medicaid /Title XIX agency ” and “ [m] ust submi t the Medicaid remittance advice received from the St ate to its Medicare contractor .” Id. § 413.89 (e)(2)( iii). However, a provider may submit alternativ e do cumentation when “through no fault of the provider, a provider does not receive a Medicaid remittance advice because the State d oes not permit a Me dica re p rovider’s Medicaid enrollment for the purposes of processing a beneficiary’s claim, or because the State does not generate a Me dic aid remit tance advice[.]” Id

.

4 D ual eligi b le Medicare beneficiaries are patients that “are elig i ble for both Medicare and Medic aid.” Gro ssmont Hosp. Corp. v. Burw ell , 797 F.3d 1079, 1 081 (D.C. Cir. 201 5). As the Court previously explai ned, “[ a] t issue in t his case are the plaint if fs ’ clai ms for Medicare reim bursem ent of unpaid deductible and coins u rance amounts asso ciated with dual eligib le patients, incurred bet ween the fiscal years ending in October 1995 and December 2004. ” Mercy I , 34 4 F. Supp . 3d at 3 31.6 B. Factual Background The plaintiffs a re acute care hospitals located in California that provide services to patients entitled to benefits under both the Med icare and Medicaid programs. See Am

. Co mpl. ¶¶ 4–81. Th e pl ain tiffs previously brought suit, “involv[ing] largely the same [seventy- five] [p] lain tiff providers[,] ” Def. ’ s Mem. at 6, in this Court seeking review of the Secretary ’ s decision denying the ir c laims for reimbursement for t he Medicare bad debts of d ual eligible pat ients
i ncurred between the years 1995 and 2004. See M ercy I, 344 F. Supp. 3d at 331. Specifically,
t he plaintiffs challenged the Secretary ’ s “ mu st

- bill ” policy that required provi ders t o bill the State and seek remittance advice before th ey could receive any re imbursement through Medicare

. 5 See id. The Court , in its decision on Septem ber 29, 2018, partially granted t he p laintiffs ’ motion for summa ry judgment, conclud[ing ] that the [ CM S] Administrator ’s finding that the Secretary ’ s remit tance advice req uireme nt predated the Moratorium [was] not supported by substan tial evidence, an d thus, based on the administrative record before the Secretary, ap plication of suc h a requirement t o the p laintiffs ’ claims violated the Moratorium. A ccordingly, the [CMS] Administ rator erred when he concluded that the remittance advice requirement did not violate the Moratorium. Therefore, the Court [coul d not] affirm th e S ecretary ’ s denial o f the plaintif fs’ claims on the basis that the plaintiffs failed to provide re mittance adv ices to support their claims. Moreo ver, because the [CMS] Adminis trator did not find that th e plaintiffs failed to bill the stat e for all of the c laim s at issue, the Court [could n ot] aff irm the [CMS] Ad ministrator ’ s decision denying all of the plaintiffs ’ claims on the alternative ground th at the plaintiffs failed to satisfy any billing requirement.

5 At issue in Mercy I was whether the Sec re tary ’ s policies we re in plac e prior to August 1 , 1987 , and therefore did not violate the so- called Bad Debt Moratorium

. See M ercy I, 344 F. Supp. 3 d at 3 29. In 19 87 , Congress passed the B ad Debt Moratorium legislation that provide d: “[ i]n makin g payments to hospitals under [th e Medicare program] , the Secretary

. . . sha ll no t make any change in the policy in ef fect on August 1, 1987, with respect to payment under [the Medi car e program] [.] ” Omni bus Budget Reconciliation Act (OBRA) o f 1987, Pub. L. No. 100

– 203, § 4008(c), 10 1 St at. 1330, 1330

– 55 (codifi ed a t 42 U.S.C. § 1395f note). The effec t of the legislation was to “ ‘freeze’ the Secretary ’ s M edicare bad debt reimburseme nt po licies.” Mo un tain States Health All. v. Burwell , 128 F

. Supp. 3d 195 , 200 (D.D.C. 2015). The Mo ratorium remained in pl ace until 2012, s ee Middle Cl ass Tax Relief and Job Creation Act of 2012 , Pub. L. No. 112

– 96, tit. III, § 32 01(d), 126 Stat. 156, 192

– 93 (codifie d a t 42 U.S.C. § 139 5f note) , therefore coverin g th e perio d from 1995 to 2004 that was at issue

. Se e Mercy I, 344 F. Supp. 3d at 3 3 1.7 Id. at 354. T he p laintiffs th en moved for recon sideration , and in Mercy I I, the Court remanded
t he case t o th e De partment “ for the [CMS] Administ rator to provide further explanation of the

rea sons for finding that the plaintiffs’ documentation was not contemporaneou s a s required by [t he Provider Reimbu rsement Manual, Part I I] § 1102.3L” an d “ for further explanati on of the [CMS] Administrator ’s conclusion that the [E lectronic D ata S ystems ( “ EDS ”) Corporation]
R eports fail to satisfy the contemporaneous documentation requ irement. ” 6 410 F. Supp. 3d at 83. Th e CM S Administrator subsequen tly remanded the matter to t he Board

. See Am. Compl. ¶ 156. In a Notice o f Reopening, dated February 16, 2021, the Board requested th at t h e parties brief the Board on “[w]hether or not t he [plaintiffs] billed the stat e for the claims at issue [,] ” “[w] h et her or not the [plaintif fs ’] documentation wa s ‘contemporaneous [,] ’ ” a nd wh ether or not the alternative documents previously supplied by the p laintiffs “ fail[ed] to satisfy the ‘contemporaneous’ documentation requiremen t. ” Am. Compl., Exhibit ( “Ex.”) B (N otice of Reopening (Feb . 16, 2021)) at 16 , ECF No 7-4. Add iti onally, t he B oard requested that the parties bri ef “ the extent to which the [2020 final rule] is relevant and should be taken into consideration by the Board when adjudicating thes e cases
. ” Id.
On March 18, 2021, the plaintiffs requested exp ed ited judicial review pursuant to 42 U.S .C. § 1395oo(f)(1). See Am. Compl. ¶¶ 169–70. The plaintiffs asserted that “the Boa rd has jurisdiction over their appeal but lacks the authority to decide the lega l question of th eir

6 The plainti ffs had contracted with the EDS Corporation, a contract or used to process crosso ver claims, “to p roduce report s to submit . . . [ to the inte rmediary ] as [ ] alternative do cument ation to the State remitta n ce advices (the ‘ EDS reports ’).” M ercy I , 34 4 F. Supp. 3d a t 331 (int ernal q uo tation marks omitted) (alterations in original)

. The CMS Administrator had deter mi ne d t hat the EDS Reports were not valid docu ments , and re ject ed “ the [ pl aintiffs] ’ con tentions t hat the EDS reports qua li f[ied] as remittan ce adv ices

. . . [beca use ] the EDS reports [we]re not cont emporaneously generated State docume nts[ ]

. . . [and] were n ot validat ed, certified[,] or adopted as S tate documents.” Id

. at 332 (internal q uo tation marks o mitted) (alte ration s in origina l)

.8 challenge to the [2020 final ru le ]. ” Id. ¶ 170. On April 15 , 2021, w ithin th irty days o f the
p laintiffs ’ request for expedited judicial review, the Board denied the pla intiff s’ request , stating that “ the Board has not yet received the informa tion needed to decide the factual and le gal issues and c omplete the record as req uired by the D istrict Court’s remand

. ” Am. Compl. , Ex. C ( Denial of Request fo r Expedited Ju di cial Revie w ( April 15 , 2021) ( “Denial Letter ”)) at 7, ECF No. 7-5. The Board specifically no ted , in terms of the in for mati on i t still needed, that it “h as n ot yet begun co nsidering the parties[’] comments regard ing the releva nce of the [2020 final rule ] . . . which may or may not eliminate the need for [expedi ted judicial rev iew] when the requisi te factual findings are ma de [,] and t he issues are reviewed in their t otality. ” Id.
C. Procedural History On June 14, 2021, th e plaintiffs filed this action seekin g judicial review of the Board ’s decision denying the plaintiffs’ reques t for expedited judi cial review

. See Am. Compl. a t 1. On December 17, 2021 , the Secretary fil ed his motion to dis mi ss pursuant to Federal Rule of Civil Procedure 12(b)(1) . S ee Def. ’s Mot. at 1. The plaintiffs subsequently filed their opposition on January 18, 2022, see Pls. ’ Opp ’n at 1, and the Secretar y filed his reply on March 1, 2022, see Def. ’ s Reply at 1. Furthermore, on October 10, 2022, the plaintiff s filed a notice regarding supplemental authority , namely case s “ which were decide d subsequent to the motion to dismiss briefing in this case and are relevant to the r ipeness issue. ” Notice of Supplemental Authority in Support of Plaintiff’s Opposition to Defend ant ’ s Motion to Dismiss ( “P ls. ’ Notice ”) at 1, ECF
No. 31. 7

7 Because the Court ultimately decides th e issues presented in the Sec retary ’ s motion to dismiss on grounds other than r ip eness, see infra S ections III.A

– B, it d oes not reach the issue of ripen ess , see infra n. 8. Therefore, the plaintiffs ’ notice of supplemental authority, which only bears on the ripeness issue raised in the defendant ’ s motion to dismiss , see generally Pls .’ Notice, does not factor into the Court ’ s analysis.9 II. S TANDARD O F REVIEW “Federal [district] courts are courts of limited jurisdi ction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Thus, the Court is obliga ted to di smi s s a claim if it “lac k[ s]

. . . subject

- matter jurisdicti on.” Fed. R. Civ. P. 12(b)(1). “A motion f or dismissal under [Federal Rule of Civ il Procedure] 12(b) (1) ‘presents a threshold challenge to the [C]ourt ’s jurisdiction.’” Morrow v. Un ite d S ta tes , 723 F. Supp. 2d 71, 75 (D. D.C. 2010) (quoting Haase v.
Sess ions, 835 F.2d 902, 906 (D.C. Cir. 1987) ). Because “[i]t is to be presumed that a cause lies outside [a federal court ’ s] limited jurisdiction,” Kokkonen, 511 U.S. at 377 , the plaintif f b e ar s th e bu rden o f establishi ng b y a preponderance of the evidence that the Court has subject- matter juri sdiction , see Lujan v. Defs. of Wildlife, 504 U .S. 555, 561 (1992). In assessing a Rule 12(b)(1) motion, the Court must “assume the truth of all material
f actual a llegations in the comp lai nt an d ‘con strue the complain t li berally, granting [the] plaintiff th e benefit of all inferences that can be deri ve d from the facts alleg ed.’” Am. Nat ’ l I ns. Co. v. Fed. Deposit Ins. Corp., 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 200 5)). However, “the [p]laintiff ’ s f a ctu al allegations in the complaint . . . wil l bear close r scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failur e to state a clai m .” Grand Lodge of the Fr a te rnal O rd

. of P olice v. Ash crof t, 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001) (internal quotation marks omitted). Moreover, the Court
“n eed not limit its elf to the all egations of the complaint,” id . at 14; rather, the “[C]our t may

co ns ider s uch materials outside th e p l ea dings as it de ems appropri ate to resolve the question [ of] wh eth er it has jurisdiction [over] the case ,” Scol aro v. D.C. Bd. of Elections & Ethics , 104 F. Supp. 2d 18, 22 (D.D.C. 2000); see Jerome Stevens Phar ms., Inc. v. FDA, 402 F.3d 1249, 125310 (D .C. Ci r. 2005) (“[ T] he district cour t may consider materials o utside th e pleadings in deciding whether to gra nt a motion to dismiss for lack of jurisdiction [.]” ).

III. ANALYSIS
The Secretary argues that this case should be dismis sed on jurisdictional grounds for the following reasons : ( 1) 42 U.S.C. § 1395o o(f)(1) of the Medicare Act does not confer subjectmatter jurisdiction because the “ [p]laintiff s have not received a final decision of the Secretary on any of their claims in th is acti on[,]” Def.’s M em. at 11; and (2) there is no j urisdiction under the federal mandamus statute “ because the Secretary does not owe [t he p] laint iffs a clear, nondiscretionary duty [,] ” id. at 2 , and the “appeals process provide s a n alternative means of securing relie f [,] ” id. 8 In response, the plaintiffs argue that : (1) the Board , through it s D enial
L etter, did not adequately issue a d et ermination of i ts authority to decide the relevant qu est ions, thus giving the p laintiff s the right to bring this acti on under § 1395oo(f), see Pl s. ’ Opp ’ n at 1 –2 (“I t is well

- establi shed that courts have ju ri sdi ction to review [e xp ed ited judicial revie w] det erminations, which are final age ncy action.”); and (2) the Court has federal man damus jurisdiction pursuant to 28 U.S.C. § 1361 be cause the Secretary “is not fulf illin g the Court’s directive on remand but r ather ha s refused to provide additional explanation pursuant to th e Court’s remand order[,]” id. at 2 1. The Court w ill proceed wi th it s analysis by fir st deter minin g

8 The defendant also argues that the plaintiff s’ claims should be dismissed due to lack of ripeness given that the plaintiffs ’ “ claims on remand from this Court are still pending before the [Board ]. ” D ef .’ s Mem. at 2. However, because the Co urt concludes on other grounds th at it does not have subject matter jurisdiction o ver the plaintiff s’ claims , see infra Section s III.A

– B, it need not reach the issue of ripe ness. See Ruhrgas AG v. Marathon Oil C o. , 5 26 U.S. 574, 58 5 (1999) ( “It is hardly novel fo r a fede ral court to c hoo se among th reshold grounds for denying aud ience to a case on the merits .”); Pa s sut v. Cardona , 540 F. Supp. 3d 27, 35 n.6 (D.D.C. 2021) (Walton , J.) ( concluding that, because it lack ed subject matter jurisdiction ba se d upon on e of the defendant s’ Rule 12 (b ) (1) arguments, that the Court “ need not address the defendants ’ other [Rule 12( b)(1) ] argument[] ” ).11 whe ther it has subject

- matter jurisdicti on pursuant to 42 U.S.C. § 1395oo(f) and , i f no t, whether exercising man damus jurisdiction is appropriate.
A. W hether t he Court has S ubject
- Matter Jurisdiction P ursuant to 42 U.S.C. § 1395oo(f)
T he plai ntiffs argue that t he Court has subject

- matter j urisdiction pursu ant to 42 U.S.C. § 1395oo(f) for two re as ons: ( 1) th e Board failed to iss u e a “dete rmination [ ] of its authority to decide th e question of law or regulations rel eva nt to the mat ters in controversy,” 42 U.S.C. § 1395oo(f), and the refore the “ Board’s [th ir ty]-day period to issue such determinati on ha s expired [,] ” Pls. ’ Opp’n at 13, and (2) “i t is quit e well

- establi shed that [expedited judicial review] determination s ar e final, appealable decisi ons [,] ” id. at 17. T he Co urt w ill pr oceed by first addressing whether the Boa rd failed to m ake a determ ination of its authority to decide the question of l aw or regulation, before addressing whether the Board ’ s r ejectio n of expedited j udicial r eview con stitute s a “fina l d ecision ” under 42 U.S.C. § 1395oo(f).
1. Whe ther the Board Failed to Ma k e a Determinatio n of its Authority to Decide the Que stion of Law or Regulation The Court firs t addresses the p lainti ffs ’ argument that th e Board “did not make the

re qu isite determination within thirty days” as r equired by the st atute

. Id. at 12. At iss u e specifically is whether the Board made a suffi c ient determination of whether it had jurisdiction or authority over the plaintiffs ’ question of law or regulation in its De nial Letter

. Id. at 1 3–14. In its lett er, the Board den ied the request for exp edit ed judicial rev ie w bec ause it “ha [d] not y et

rec eived the information needed to decide the factual and l egal issues and complete the record as required by t he [this] Court’s remand[,] ” and “ha[d] not yet begun considering the par ties [’] comments regard ing the relevance o f t he [2020 f inal rule] [, ]” which “may or may not eliminate the need for [expedited judicial review ] when the requisite factual findings are made a nd the issues are reviewed in their total ity. ” Am. Compl., Ex. C ( Denia l Letter ) at 7. T he Secretary12 assert s t hat “the Board relied on the absence of sufficient documentation criterion under § 405.18 42(f)(2 )(iii) ” as t he basis for re jecting the request for expedited judi cial review. Def. ’s Repl y at 6. 9 The plaintiffs , on the other han d, c laim that , because the letter does not “ident ify wh at in for mation it believes it lacks but needs in order to determi ne whether it has jur isdiction or authority [,] ” the let ter “plainly does not” meet the criteria for rejection set out in 42 C.F.R. § 405 .1842(f)(2)(iii) . Pl s. ’ Op p’n at 14. Before th e Court can address whether the Denial Letter entitled the plaintiffs to expedited judicial review under 42 C.F.R. § 405.1842(f)(2) , the Co urt must first address “whether Congress has directly spoken to the precise question at issue [, ]” Chevron, U.S.A., Inc. v. Nat. R es. Def. Council, Inc., 467 U.S. 837, 842–43 (1984), i.e. , whether the Board failed to make a final determination of its authority to decide the question of law or regulation under these circumstances . “I f the intent of C ongress is clear, that is the end of t he matter ; for the [C]ou rt , as wel l as the agency, must give effec t to the unambiguously expressed intent of Congress.” Id

. When “th e p lain language of [a] st atute is clea r, [ ] court [s] generally w ill not in q uire fu rther into its meaning [.] ” Qi -Zhuo v. Meissner, 70 F.3d 136, 140 (D.C. Cir. 1995 ). To determine whether
a st atute is ambig uous, the Court must “look to t he structure and language of the statute as a whol e. ” Nat ’l R.R. Passenger Corp. v. Bos. & Maine Corp., 503 U.S. 407, 417 (1992). The statute here , see 42 U.S.C. § 1395oo(f) (1) , provides in relevant part that a “provider may file a re quest for a dete rminat ion by the Board of i ts aut hor ity to decide the question of law

9 The plaintiffs, citing to Methodist Hospitals of Memphis v. S ullivan , 799 F. S up p. 1210 (D.D.C. 1992), claim that this Court “already has rejected a nea rly identical argument by the Secretary.” P ls.’ Opp’n at 1. Indeed, in that case, the Court held th at the Board “di d not determine that it had authority to decide the validity of t he Secretary’s reaudit regulation” when i t denied expedited judicial revie w because of factual issues that had not yet been decided. 799 F. Supp. at 1215. Therefo re, the Court held that the Bo ard “failed to make a timely determination of whether it had o r did not have jurisdiction over the merits of the dispute as required by 42 U.S.C. § 1395oo(f)(1).” Id. at 1216. Howe ver, this Court finds tha t Methodist Hospit als of Memphis is distinguishable from this case , as the regula tion challenged in Methodist H os pitals of Memphis had already been app l ied to th e plaintiffs ’ case , unli ke the yet to be applied 2020 fi nal r ule in th is ca se.13 or regulations relevant to the matters i n controversy [,] ” id., that the Bo ard “ shall render such determination in writing within thirty days [,]” id., and if it fails to do so, “the provider may bring

a civil action ,” id . The Boa rd “must make a determination of whether it has ju ris diction to decide the issue presented [,] ” the issuance of which is “mandatory, not discretionary[;]” and “ if it do es not make such a determinatio n, 42 U.S.C. § 1395oo (f)(1) permits the pro vider to seek direct ju dicial review .” Methodist Hosps. of Memph is v. Sulli van , 799 F. Supp. 1210, 1215–16 (D.D.C. 1992), rev ’d on ot her grounds sub nom., Adm ’ rs of Tul ane Educ. Fund v. Shalala, 987
F. 2d 790 (D.C. Cir. 1993) ; see also Clarian Hea lth W., LLC v. Har gan , 878 F.3d 346, 354 (D.C. Cir. 2017) (“ Either the Boar d granted expedited review over the question presented, or it failed to decide [the plaintiff ’ s] reques t for expedited judicial re view of the question within thirty days. In either event, [th e plaint iff ] had a ri ght to seek review in the District Court [.] ”).
R eg a rding the “ structure

. . . of the statute as a whol e [,] ” Nat ’l R.R. Passenger Corp., 503
U.S. at 417, the impact of 42 U.S.C. § 1395oo(f)(1) is to prevent providers from hav ing to pursue

“ a time -consuming and irrelevant admin istrative revie w merely to h ave the right to bring suit in a U.S. District Court. ” H.R. Rep. No. 96–1167, at 394 (1980), 1980 U.S.C.C.A.N. 5526, 5757.
H ere , th at re view would not be irrel evant , because th e issue would be come moot if the Board determine s the 2 020 fina l rule does no t ap ply, and there would therefore be no need for the Court to intervene. As to the “ lan gu age of the statute as a whol e [,] ” Nat ’l R.R. Passenger Corp., 503
U.S. at 417, t he term “ relevant ” has different m eanings in different cont ex ts. S ee , e.g., Fo od Lion, Inc. v. United Food & Com. Workers Int’ l Un ion, AFL- CIO

- CLC , 103 F.3d 1007, 1012 (D .C. Cir. 1997) (“Generally speaking, ‘ relevance ’ for discovery purposes is broadly construed.” ); Jewish War Veterans of the U.S. of Am., Inc. v. G ates , 506 F. Supp. 2d 30, 42 (D.D.C. 2007) (“ The term ‘ relevant ’ [ ] h as a different meaning —and a broader scop e—un der14 Fed. R. Civ. P. 26(b) than it does under Rule 401 of the Federal Ru les of Evidence. ” ); Kisor v. McDonough, 995 F.3d 1316, 1326–25 (Fed. C ir. 2021), cert . d enied , 142 S. Ct. 756, (2022) (r ejecting the plainti ff ’s argument that “ the term ‘ relevant ’ should be construed broadly [,] ” in favor of requiring that “ relevant ” recor ds must directly “ pertain to ” the matter at issue ). The
Cour t th eref or e find s th e ph rase “ relevant to ” to be sufficien tly ambiguous so as to open 42 U.S.C. § 1395oo(f) (1) to interp re ta tion. See Nat ’l R.R. Passenger Corp., 503 U.S. at 4 08 (“ The existence of alternative [ ] definitions for [a ter m] indicates that the statu t e is open to int er pretation.”).
P ri o r cases addressing whether the Board failed to make a timely determination have done so in the context of cha llenges to laws and regulations that had already been concretely applied to the plaintiffs in th ose cases prior to the adm inistrative review

. See Methodist Hosp s. of Memphis, 799 F. Supp. at 1212 (involving a challenge to a re imbu rsement regu lation that had already been applied to the plaintiffs ’ case , in that e ach p laintif f ha d seen their rei mbursement
amounts re duced a fter a reaudit appl ying the new regulations at issue ); Clarian Health , 878 F.3d
at 349–352 (involving a challenge to a 2010 policy governing a reconciliation process , under which the plainti ff was required to pay $2.4 million). Here , the plaint iffs sought expedited ju dicial review “ to decide the legal question” of “the validity of the [2020 f inal r ul e] ’ s

r equ irement that a provider must bill the state eve n i f it has documentation alternative to t he remittance advice[.] ” Am. Compl., Ex . A (Request for Expedi ted Judicial Review f or Mercy General Hospital et al . ( Mar . 18, 2021) (“ Request for R e view ”)) at 2. And , the relevance of the 2020 fi nal rule to the Court’s remand to the Board is st ill very much an open question, see Am. Comp l. , Ex. B ( N otice of Re opening ) at 16 , and the Boa rd notes in its Denial Letter that it has “not yet begun cons id er ing the parties[’] comments regarding the relevance of the [2020 final15 rule][.] ” Am. Compl., Ex. C ( Denia l Letter ) at 7. T he statute, see 42 U.S.C. § 1395oo(f) (1) , explic itly s tates that a provid er may reques t a determination of authority from th e Board “to decide the question of law or regulation s relevan t to the matters in controversy,” id. (emphasis added ). The statute i s therefore ambiguous as to t he determi nation of whether the 2020 final rule is relevant to the Court’ s remand to the Board in this case. When a statute is ambiguous and Congress’s intent is unc lear , the Court must “ defer t o the agency ’ s in terpretation as long as it i s ‘based on a permissible construction of the statut e.’ ” Bluew ater Network v. E PA , 372 F.3d 404, 410 (D.C. Cir. 2004) (quoting Chevron, 467 U.S. at
842–43 ). However, “ [t]he [C] ourt need not conclud e that the agency construction was the only one it permiss ibly could have adopted to uphold the construction, or even t he reading the [C] ourt

wou ld have reached if the question initially h ad arisen in a judi cial proceeding.” Chevron, 467
U.S. at 843 n.11. Regarding the legislative record , Congress’s stated intent in estab lishing exped ited judicial review w as to create a sy stem tha t did not “ del ay the resolution of controversies for exten ded p eriods of time a nd [ ] require providers to pursue a t ime -consuming and irreleva nt administrative review merely to have the right t o b ring suit in a U.S. District
Cou rt .” S ee H.R. Rep. No. 96–1167, at 394 (1980), 1980 U.S.C.C.A.N. 5526, 5757. Thus, th e Board must acknowledge, through a determination of its authority, when it “ lack [s ] the jurisdiction to decide whether the regulation [i s] invalid.” Metho dist Hosps. of Memph is , 799 F. Supp. at 1216. The review in question here cannot be considered “ irrelevant ,” as the question of wh ether the 2020 fin al rule even a pplies w ill possibly determine whether there is a question of law or regul ation that even needs t o be addressed b y the Court. Therefore, a Board hearing is not an event that Congress sought to avoid by granting expedited judicial review under ce rtain circ umst ances . S ee H.R. Re p. No. 96–1167, at 394.16 In its D enial Letter , the Board references regulati on s, see Am. Compl., Ex. C ( Denial Letter) at 6–7, which state t ha t th e Board “must deny [expedited judici al revie w] [,] ” 42 C.F.R. § 405.1842(f)(2), when the Board “does not have suff icient information to determ ine whether ” it ha s jurisdiction or authority, id . Here, the missing inform ation is directly relevant to th e cha lleng ed regulation, information which “ may or may not eliminate t he need for [expedited judicial review] when the requ isite factual findings ar e made and the is sues are reviewed in their
tot ality .” Am. Compl., Ex. C ( Denial Letter) at 7

. Because the sta tute only re quire s the Board to make a full determination of its authority on a que stion “ relevant to the matters i n co ntroversy[,]” 42 U.S.C. § 1395oo(f) (1 ), it is perm issible that the Board deny expedited judicial rev iew until such time as it can be determine d wheth er th e que stion is even relevant . Accordingly, the Co urt concludes that the Boar d ’s Denial Letter wa s adequate , and th e lack of a determ ination of the Board ’s authority to answer the question of law or r egulati ons does not, under these unique ci rcumsta nces , grant this Court subject- matter jurisdiction under 42 U.S.C. § 1395oo(f) (1)

. Therefore, the Cour t wi ll proceed to its anal ysis r egarding whe th er the reje ction of exped ited jud icial review cons titute s a r eviewa ble final decision.
2. W hether the Boar d’ s Rejectio n of Expedited Judicial Review Con stitutes a “ Final Decision ” In his motion, the Secretary a rg ues that the plain tiffs “h ave not received a final decisi on of the Secretary on any of their claims in this action [,] ” Def. ’ s M em . at 11, because the administrativ e appeals have not been exhausted and a ccordingly “ the Board’s denial of expedited judicial revie w [ ] is only an i nterlocu tory ruling[,]” id. at 12. The plaintiffs respond that “ it is quite wel l- established that [expedited jud icial review] determinatio ns are final, appealable d ecisions.” Pls. ’ Opp’n at 17. The plaintiffs also note that “‘ [a] Board [expedited judicial review] dec ision ’” is included “ [a] mong th e final Boar d decisions listed in [42 C.F.R.]17 § 405.18 75(a)(2) .” Id. at 18 ( citing 42 C.F.R. § 405.1875 (a)(2) (iii) ). Further, the plaintiffs claim that within the meaning of the statute, the list of “ final and reviewable de cision s must inclu de the fa ilur e of the Boa rd to make the requisite no-authority decision within thirty days.” Id

. at 18

– 19. The Secretary counters that “ the Board’s denial of the plaintiffs’ request for expedited judicial review of the 2020 final rule i s clea rly no t a final decis ion; rath er, the Board’s d enial was an interlocutory ruling . . . before the potent ial applicability of the 2020 final rule could be ascertained. ” Def.’s Reply at 1. The Secretary further argues that the “r egu lati on provides fo r review of ‘ [a] B oard [exp edit ed jud icial review] decision, but only the question of whethe r there is Board jurisdiction o ver a specific matter at issue in the decision.’” Id. at 4 (alteration s in ori gina l) (emp hasis omitted) (quoting 42 C. F.R. § 405.1875 (a)(2) (iii) ). Be cause in this case “ the Board did not rule t hat it lacke d jurisdiction [,] ” the Secretary ar g ues that “the Board’s den ial of

ex pedited judicial review is not a final decision,” and thus the Court lacks “ subject matter jurisdi ctio n under 42 U.S.C. § 1395oo(f )(1). ” Id. a t 4 –5. 10
Befo re determining whethe r 42 C.F.R. § 405.1875(a)(2) applies, the Court must first consider whe ther 42 U.S.C. § 1395oo(f)(1) addres ses the matte r. See Chevron, 467 U.S. at 842.
T he statute plainly states th at “ [p] roviders sh all have the right to obtain judic ial review of any

10 In response to the Secretary ’ s argument that “42 U.S.C. § 1395oo(f)(1 ), is inapplic a ble because [the p] lainti ffs have failed to exhaust administrative app eals remedie s on their claims in this actio n[ ,] ” Def.’s M em . at 2 , t he plaintiffs count e r that in Bethesda Hospital Ass oci ation v. Bowen , the Supreme Court rejected a similar argument raised by the Secretary. 485 U.S . 399, 404 ( 1988). The re, the Supreme Court noted t hat the “p etitioners stand on different g ro und than do providers who bypass a clearly prescri b ed exhaustion requirement[,]” id. at 404

– 05, referencing “an exhaustion requirement that, sensibly, would co m pel providers to pr ese nt those claims to the intermediar y that the intermediary actually had the power to a ddress [,] ” Banner Hear t Hosp. v. Burwel l , 201 F. Supp. 3d 131, 141 (D.D.C. 2016). Thus, the plaintiffs contend there can be no exhaust ion requiremen t when “neith er the Bo ard nor the intermediary has the au thorit y to address challenges to t he va lidity of a regulation.” Id. Wh en there is a leg a l question relevant to the matter at hand that is beyond t he Board’s authority, “[i]t is this deter mination of th e Board, or altern at ively the Board’s failure to act, tha t triggers the right of judicial r e view.” Bethesda , 485 U.S. at 406

– 07. However, b ecaus e the Court ultimately finds that it may not exercise subject

- matter jurisdiction over th is case pursu ant to 42 U.S.C. § 1395oo( f)(1) because there has bee n no relevant final decision issued , it need no t reach the issue of whether the plaintiffs are requ ired to exhaust administrativ e appeals before seeking ju dicial r eview

.18 fin al decision of the Board [.] ” 42 U.S.C. § 1395oo(f)( 1)

. Wh i le the statute does p ro vide a list of

w hat is or is not a final decision, it also state s that providers “ may file a request for a d eterminati on by the Board of its authority to decide the question of law or regulations re levant to the matters in c o ntrovers y” and that “ the determination shall be considered a final decision and not subject to review by the Secretary.” Id. (emph asis add ed). Th e plain reading of the
statute indi cate s that “Congress intended for provider s to have access to judicial rev ie w an y tim e that the [Board] makes a no auth ority determi nation, so long as the provider timely commences a civil proceeding.” Affi nity H ealthcare Se rvs., Inc. v. Sebelius, 74 6 F. Supp. 2d 106, 115 (D.D.C. 2010) ; see also Autumn Journey Hospice, Inc. v. Se beli us, 753 F. Supp. 2d 135 , 141 (D.D.C. 2010) (“Congress intended to establish [ ] a framework under which providers have reco urse to im mediate judic ial review whenever the [Board ] makes a no authority determination.” ) (internal quotation ma rks omitt ed) ; Allina Health Serv s. v. Burwell , 141 F. Su pp. 3d 17, 21 (D.D.C. 2015) (“ [T] he statute is clear that the Board ’s author it y deter mina tion i s a fi nal decision and therefore

s ubject to jud icial review. ”). However, as no ted above, s ee supra Section I II. A.1 , 42 U.S.C. § 1395 oo(f)(1) expressly applies to “question [s ] of law or regulations relevant to the matters in controversy[.]” 42 U.S.C. § 1395 oo(f)(1) ( emphas is added). When co urt s have previously held that an exp edited judicial review determinat ion i s a fina l decision , it has typicall y been in the context of a c hallenge to a law or regulation that was plainly relevant to the matter at hand because i t h ad been concre tely applied to t he plai ntiffs in some manner prior to the ad ministrative review process

. See , e.g., Autumn Journey Hospice, 753 F. Supp. 2d at 138 (involving a challenge to the legitimacy of a Medicare hospice c are reimbursement cap that had been applied to the plaint if fs ); Allina H eal th
Serv s. , 141 F. Supp. 3d at 19 (involving a challenge to calculatio n methods used to determin e the19 plai ntiff s’ payment determinations under Medicare); Affinity Healthcare Serv s. , 46 F. Supp. 2d
at 109 (involving a group of pla intif fs chal lenging the regulat ions that had resulted in the Department issuing repayment demands). Here, however, the relevanc e o f the 2020 final rule is still in question , as the rule has not yet be en applied to the plaintiffs . See Pl s. ’ Opp ’n at 22 (acknowledging that the “new bad debt regulations have not yet been appl ied to the [plaintiffs ’ ]

c laims at issue ”) ; s ee also Am. Compl., Ex. C (Denial Letter) at 7 (“ [T] he Board has not yet begun considering the parties comments regarding the r elevance of the [2020 final rule] , an interven ing event, which may or may not eliminat e the need for expedited judicial review when the requisite factual findings are made and the issues are reviewed in their totality [.]”). It therefore can not be said th a t the dete rmination m ade by the Board was one of “ its authority to decide the question of law or regulations relevant to the mat ters in controversy[,]” s ee 42 U.S.C. § 1395oo(f)(1) (emphasis added), as the relevan ce of the 2020 final rule is still und eter m ined

. The refore, th e fi nal decision requirement fou nd in the statute does not unambiguously apply in th is case

. Fur ther, as prev iously discus sed, the Congressional record does not provide guid ance in cases where the question of law or regulation is not cle ar ly re levant to th e facts of the case

. Se e supra Section III.A.1. Because the stat ute and Congressional intent a re am biguous, Chevron deference to the agency ’ s regulations is warranted

. See Bluewater Network , 372 F.3d at 410. Under the relevant regulat ory provision, “ [a] Board decision is f inal an d sub ject t o jud icia l review . . . only if t he decision ” meets certain listed criteria. 42 C.F.R. § 405.1877(a)(3) (emphasis added)

. Relevant to this case, the provision inco rporates by reference an enum erate d
set of reviewable Board decisions fou nd in § 405.187 5(a)(2 ) th at qualify as final decisi ons. See id. That list includes “ [a] Board [expedited judicial revie w] decision, but only the question of whether there is Board j urisdiction over a specific matter at issue in th e decision [.] ”20 Id. § 405.1875( a)(2 )( iii) ( emphas is added). Specifically , “ the [CMS] Administrator may not review the Boa rd ’s determination in a dec isio n of its authority to decide a legal question relevant to the matter at issue .” Id. He re, “whether th ere is Board jurisdiction over [this] s pecific matter[,] ” id., is no t in qu esti on, see Am. Compl., Ex. A (R equest for Revie w) at 2 ; rather , the question of “its authority to decide a legal question relevant to the matter[,] ” 42 C.F.R. § 405.18 77(a)( 2)(iii) (em phasis added) , is at issue, see Am. Compl., Ex. A ( Request for Review )
at 2–3. Th is latter determination is excluded from the lis t of final decision s and b ecause a decision is only f inal if it meets the crite r ia set by § 405.18 77(a)(3 ), and a determination of authority to decide a legal qu estion does not sati sfy those criteria, the decision i n this case does not constitute a final decision.
Because the de n ial of ex p edited judicial review in this c ase was n ot a “ final dec ision” based on e ithe r the meaning of the s tatute or appl icable regulatory provisions, it is best categorize d, as th e Secretary urges, as an “interlocutory ” d ecision

. See Def .’s Reply at 1. T he legitimacy of expedited jud icial review cannot be fully judged “b efore t he pote nt ial applicability of the 2020 final rule [ca n] be ascertained. ” Id. Thus, while unde r normal circumstances the re
may be no exhaustion requirement to obtain expedited judic ial review of a challenge to a law or
reg ula tion , s ee B ethesda Hosp

. Ass’n v. Bow en , 485 U.S. 399, 404–05 (1988) (holding that the re is no exhaustion requirement when an y further admini strative p roceeding wou ld be “ futile ”) ; Banner Heart Hosp. v. Burwell, 201 F. Supp. 3d 131, 141 (D.D.C. 2016) (holding there is no exh austion requir ement when “neither the Board nor the intermediary has the authority to address challeng es to the validity of a regulation”) , when the regulation has not even been applied to the case in question, i t would not be “ futile ,” see Bethesda 485 U. S. at 4 04, to a wait21 the Board ’ s d e termin ati on as to whether the challenged regulation is releva nt to the ma tter at issue

. Acco rdingly, the Court concludes that it may not exercise subje ct

- matter jurisdiction over this case pursuant to 42 U.S.C. § 1395oo (f)

. The C ourt must th e refore tu rn to the question of whether it h as jurisdiction pursuan t to the federal mandamus statute.
B. Whe ther the Court has S ubject
- Matter Jurisdicti on Pursuant to the Mandamus Statute The plaintiffs alternatively seek to have th e Court exercise mandamu s jurisdic tion,
pu rs u ant to 28 U.S.C. § 1361, see Am. Compl. ¶ 2, based on the theory that “ th e Sec retary is not fulf i lling the Court’s directive on remand but rather has refused to pro vide additiona l explanation pursuant to the Court’s remand order [,] ” Pl s. ’ Opp ’n a t 2 1. Th e plaintiffs contend that, by
requ esting that the parties subm it briefing as to certain questions on remand, “ [t] he [CMS] Administ rator has failed to take the actions re quired by this Court and instead is forcing the parties to go through addition al expens e and delay in this alre ady long-d elayed case. ” Id. at 22. The S ecretary counters that “ [n] one of the thr ee requirements for man damus jurisdiction are

sa tisfied. ” Def .’s Reply at 8. Accor ding to the Secretary, rather th an “ seeking e nfo rcemen t of this Cou rt’s manda te, the plai ntiffs are effe ctive ly asking that it be disregarded.” Id.
Acc ordingly, the Secretary argues that “ the r emand process is not yet complete and t here is no

reaso n to cut the process short. ” Id. at 9. The remedy of manda mu s “is a d ra stic one, to be invoked only in extra ordin ary circumstances.” Allied Chem . Corp. v. D aif lon, Inc., 449 U.S. 33, 34 (1980) ; see also Gulfstream Aerospace Corp. v. Maya camas Corp. , 485 U.S. 271, 289 (1988) (“ [T]he writ of mandamus is an extr aordi nar y re me dy, to be reserved for extraordina ry si tuati ons.”). Thus, mandamus is available only if “(1) the plaintiff has a clear right to relief; (2) the defendant has a22 clear duty to act; and (3) there is no oth er adequate remedy available to the plai ntiff.” In r e Medicare Reimbursement Litig ., 414 F.3d 7, 10 ( D.C. Cir. 2005) (quoting Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002)). Moreover, mandamus is available “only where the duty to be performed is ministerial and the obligatio n to act peremptory , and cl ea rly defined

. The law must not only authori ze the deman ded act ion, but require it; the duty must be clear a nd indisputable.” Lozada Colon v. U.S. Dep’ t of State , 170 F.3d 191, 191 (D. C. Cir. 1999) (internal
quo tation marks and cit ation omitted).
T h e Cou rt m ust first ad d ress whethe r the plaintiffs have a clear right to rel ief. The plain tiffs con te nd that on remand, “ [a] party always has recourse to the court to seek enforcement of its mandate. ” Pl s. ’ Opp ’n at 2 0 (quoting Office of Consumers’ Couns. S tat e of Ohio v. F ERC , 826 F.2d 1136, 1140 (D.C. Cir. 1987)). It i s true that this Court has th e po wer “ to correct any misconception of its mandate by a [n]

. . . ad ministrative a gency subject to its authority.” Office of Cons umers ’ C oun s. , 826 F.2d at 11 40 ; see also F CC v. Pottsville B road . Co., 309 U.S. 134, 145 (1940) (“On review the court may [ ] correct errors of law and on remand the [Department] is bound to act upon the correction.” ); Atlantic City Elec. Co. v. FERC , 329 F.3d 856, 858–57 ( D. C. Cir. 2003) ( vacatin g ad ministr ative a ction entire ly inconsi stent with an initial Court order) ; N. Sta tes Power Co. v. U.S. Dep’t of Energy, 128 F.3d 754, 759 (D.C. Cir. 1997) (gra ntin g a writ of mandamus to compel a federal agency to comply with a prior mandate )

. The question b efore the Court, then, is whether the Secretary ha s failed to comply with the orders of this Court on remand

. In Mercy II, this Court concluded th at it
must . . . remand this case to the agency for the [CMS] Ad ministra tor to provide fur th e r explanation of th e re asons for finding th at the plaintiff s’ documentation was not contemporane ous . . . Moreover, this case is also r emanded for further explanation of the [CMS] Administr ator ’ s conclusion that t he EDS Reports fail to satisfy the contemp ora neous documentation r eq uire ment.23 410 F. Supp. 3d at 83. The [CMS] Administrator has since remanded the Court’ s questions to the Board . S ee Am . Compl. ¶ 151. Subsequen tly, the parties were notified th at: The Board hereby require s t he Parties to brief the following consis ten t [with] the C ourt’s de cision:
• W hether or not the Provide rs billed the state for the claims at issue;
• Whethe r or not the Providers’ documentation was “contemporaneous”

. . . ; and
• Whether or not the EDS Repor ts fail to satisfy t he “contempo raneous” do cumentat ion r eq uirement.
Am. Compl., Ex. B ( Noti ce of Reop ening ) a t 1 7. The Board further requested t hat “ the [p] a rti es’ briefs [ ] address the extent to which the [202 0] [f] i nal [r] ule is relevant and should be taken into consid eration b y the Board when a djudicatin g t hese cases. ” Id. In so far as the Board has simply requested briefing from the parties on the questions posed to the CMS Administrator on remand, it has not exceeded or failed to comply with the mandate of this Court. Accord ingly, the plai ntiffs do not hav e a clear ri ght to relief and issuing a writ of mandamus is therefore no t
ap propriate. 11
The plaintiffs hav ing failed to estab lish that th e y have a clear right to relief suffic ient to justify the extraordin ary gran t of m andamu s, the Court concludes that it may not exe rc ise sub ject

- matt er jurisdiction over this action pursuant to the federal mandamus statute. 12

11 Because all requirements must be e stablished t o warrant a w rit of mandamus, see In re Medi care R eimb ursement Litig

. , 414 F .3d at 10 , and the Court concludes that the plaintiffs have failed to establish the first of these requiremen ts, it need not consider whether the remaining two have been sat isfied.

12 It i s wo rth noting that in M ercy II , the C our t “decline[ d] to exer cise its discretion to retain jurisdiction over this case” give n that “the plaintiffs [did] not allege[] th at the Secretary engaged in a ny [ ] un reasonable delay o r noncompliance.” 410 F. Supp. 3d at 82. The Court no ted that “the pla intiffs’ cl aims have now been pending for over ten years” and as suc h urged the Secr etary “to resolve this matter as expeditious ly as possible.” Id. at 83. T he rema nd order was issued on October 17, 2019, which now was over three years ago . Whi le the Court does not fi nd that the Secretary has failed to comply with the rema nd orde r at this time, the Court continues to urge the Sec retary to expeditiously resolve this matter

. The plaintiffs ’ compliance with th e Board ’ s requests will hopefully assist in accomplishing that objective.24 IV. CONC LUSI ON For the f oregoing reasons, the Cour t concludes that it must grant the Se cret ary’s motio n
to dismi ss
. SO ORDERED this 17th d ay of November , 2022

. 13

REGGIE B . WALTON United States Dist rict Ju dge

13 The Cou rt will contemporaneously issue an Order co nsistent with thi s M emorandum Opin io n.