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Merrifield v. United States

June 30, 2009

DOROTHY MERRIFIELD, ET AL., PLAINTIFF,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge

OPINION

I. INTRODUCTION

This matter is before the Court on a motion submitted by Plaintiffs Dorothy Merrifield ("Merrifield") and Marie A. Burke ("Burke") to vacate this Court's March 31, 2008 order dismissing their claims pursuant to Rule 60(b), Fed. R. Civ. P. [Docket Item 27]. On March 31, 2008, the Court dismissed Plaintiffs' suit, which arose under the Medicare Act, for lack of subject matter jurisdiction. Merrifield v. United States, No. 07-987, 2008 WL 906263 (D.N.J. Mar. 31, 2008). Plaintiff Merrifield, the Court found, had failed to exhaust her administrative remedies and the Court declined to waive that exhaustion requirement. Id. at *14-17. The Court dismissed Plaintiff Burke's claim as moot. Id. at *17-18. Merrifield and Burke now argue that Defendants' conduct following this Court's March 31, 2008 Opinion and Order warrants vacating the order of dismissal and reinstating their Complaint. For the reasons discussed below, the Court will deny Plaintiffs Merrifield and Burke relief from the order of dismissal.

II. BACKGROUND

A. Previous Litigation and Judgment

Plaintiffs Merrifield and Burke were two of five named plaintiffs in a putative class action brought against Defendants, the United States of America, the Department of Health and Human Services ("HHS"), the Centers for Medicare and Medicaid Services ("CMS"), the Secretary of HHS and the Acting Administrator of CMS. Plaintiffs were all New Jersey residents for whom Medicare paid medical expenses after they suffered personal injuries in accidents. Plaintiffs alleged that Defendants wrongfully, and in violation of Plaintiffs' constitutional due process rights, demanded reimbursement for those medical expenses pursuant to a "secondary payer" provision in the Medicare Act, 42 U.S.C. § 1395y(b)(2)(B). Plaintiffs argued that CMS was not entitled to reimbursement under the Medicare as a secondary payer ("MSP") provision because Plaintiffs' medical expenses were not covered by any other source, despite Plaintiffs' lump sum settlement agreements with their alleged tortfeasors. Under New Jersey law, tortfeasors may not be held liable for the costs of any medical expenses Medicare has already paid, N.J. Stat. Ann. § 2A:15-97, and therefore Plaintiffs' settlements did not include any money for medical expenses that had been paid by Medicare.

Defendants moved to dismiss Plaintiffs' class complaint in its entirety, pursuant to Rule 12(b)(1), Fed. R. Civ. P., and the Court granted that motion. After finding no federal question jurisdiction to review Plaintiffs' claims because administrative agency review was available, the Court considered whether jurisdiction existed under 42 U.S.C. § 405(g) for claims that arise under Medicare. The Court dismissed Plaintiff Merrifield's claims (along with the claims of the plaintiffs Oberlander, Heiser, and Kiziukiewicz) because she had not exhausted her administrative remedies and the Court declined to waive that Section 405(g) requirement. Merrifield, 2008 WL 906263, at *14-17. The Court dismissed Plaintiff Burke's claim as moot, for an Administrative Law Judge ("ALJ") had already ordered CMS to refund Burke the amount she had repaid, even though the Court noted that Burke had refused the refund "because, among other reasons, it did not include statutory interest or attorneys' fees." Id. at *4, 17-18.

B. Present Motion to Vacate Judgment Pursuant to Rule 60(b)

Plaintiffs Merrifield and Burke now seek relief from judgment on two different grounds. Plaintiff Burke argues that her claims should be reinstated because Defendants continue to refuse to provide her with judgment interest on the money the ALJ ordered CMS to return. Defendants respond that Burke is not entitled to interest from the United States, absent an express waiver, and further that Burke's arguments are not sufficient grounds for relief from judgment.

Plaintiff Merrifield maintains that the order of dismissal should be vacated because "the Government has done absolutely nothing" to provide a proper administrative remedy. (Garelick Certification ¶ 24.) Defendants respond with evidence that Merrifield has not authorized counsel Paul Garelick to represent her in administrative proceedings, (Wright Decl. ¶¶ 6-12, 19; Defs. Exs. 1-3), and that in July, 2008 CMS informed Mr. Garelick that his attempt to file an appeal on Ms. Merrifield's behalf was dismissed because he had not sought the proper administrative remedy, (Wright Decl. ¶¶ 15-18; Defs. Ex. 7).*fn1

III. DISCUSSION

A. Relief under Rule 60(b)

"The general purpose of Rule 60(b) is to strike a proper balance between the conflicting principles that litigation must be brought to an end and that justice must be done." Coltec Indus., Inc. v. Hobgood, 280 F.3d 262, 271 (3d Cir. 2002) (quoting Boughner v. Sec'y of Health, Educ. & Welfare, 572 F.2d 976, 977 (3d Cir. 1978)). The interest in finality is profound and so "relief under Rule 60(b) is extraordinary and requires a 'showing of exceptional circumstances.'" Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644, 654 (3d Cir. 1998) (quoting Marshall v. Bd. of Educ., 575 F.2d 417, 425-26 (3d Cir. 1978)), abrogation on other grounds recognized by Forbes v. Eagleson, 228 F.3d ...


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