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Dorothy Merrifield, et al v. United States of America

March 28, 2011


The opinion of the court was delivered by: Hon. Jerome B. Simandle


SIMANDLE, District Judge:


This matter is before the Court on a motion submitted by Plaintiffs Dorothy Merrifield, Marie A. Burke, Adele Oberlander, and Linda French Heiser ("Plaintiffs") to vacate pursuant to Rule 60(b), Fed. R. Civ. P. this Court's March 31, 2008 Order. [Docket Item 37]. 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). The Court found that Plaintiffs Merrifield, Oberlander and Heiser had failed to exhaust their 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. This instant motion marks the second time that Plaintiffs Merrifield and Burke have moved to vacate the March 31, 2008 Order of Dismissal, previously so moving on December 23, 2008 [Docket Item 27], which the Court denied on June 30, 2009 [Docket Item 36]. All four Plaintiffs now argue that Defendants' continuing conduct warrants vacating the order of dismissal and reinstating their Complaint.

Plaintiff Heiser additionally moves, pursuant to Fed. R. Civ. P. 25, to substitute Plaintiff Heiser's surviving next of kin Jean Huston for Plaintiff Heiser, who passed away since the dismissal of this action. This motion will be granted.

For the reasons discussed below, the Court will deny Plaintiffs' motion to vacate. Although the litigation may not be reopened as to the claim of the late Linda French Heiser, the Court will grant the substitution of Jean Huston who will thus succeed to Ms. Heiser's rights with respect to any further litigation herein or appeal.


A. Previous Litigation and Judgment

The facts underlying Plaintiffs' Complaint have been discussed in the Court's previous Opinions of March 31, 2008 and June 30, 2009, and will not be repeated in detail here. Plaintiffs originally filed their putative class action Complaint 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 on March 1, 2007. Plaintiffs alleged that Defendants wrongfully, and in violation of Plaintiffs' constitutional due process rights, demanded reimbursement for medical expenses paid initially by Medicare pursuant to a "secondary payer" provision in the Medicare Act, 42 U.S.C. § 1395y(b)(2)(B).

The Court dismissed Plaintiffs' class Complaint in its entirety, pursuant to Rule 12(b)(1), Fed. R. Civ. P. 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 the claims of Plaintiffs Merrifield, Oberlander, Heiser because they had not exhausted their administrative remedies and the Court declined to waive that § 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. Id. at *4, 17-18. Prior to dismissal, Plaintiffs had not moved to certify a class.

Nine months later, Plaintiffs Merrifield and Burke moved to vacate the order of dismissal.*fn1 Plaintiff Burke argued that her claims should be reinstated because Defendants refused to provide her with judgment interest on the money the ALJ ordered CMS to return. Plaintiff Merrifield argued that the dismissal Order should be vacated because she had not been given an administrative hearing on her dispute. The Court denied Plaintiffs' motion, finding that because Plaintiff Burke was not entitled to judgment interest, her claim remained moot and that, while the delays Plaintiff Merrifield had experienced were troubling, they did not rise to the level of the exceptional circumstances warranting relief under Rule 60(b). Merrifield v. United States, No. 07-987, 2009 WL 1916328 at *3-4 (D.N.J. June 30, 2009). In an effort to prod CMS into more promptly addressing Plaintiff Merrifield's administrative claim, the Court noted that it was relying on CMS' representation and good faith and will hold CMS to this promise [to expedite the review of Merrifield's claim]. If after 120 days following receipt of this formalistic authorization CMS has not acted upon Merrifield's administrative appeal . . . Merrifield may renew her motion to reopen this case under Rule 60.

Id. at *4.

Approximately one year later, after apparently no change in their administrative appeals, Plaintiffs Merrifield and Burke, this time joined by Plaintiffs Oberlander and Heiser, have again moved to vacate the Court's March 31, 2008 Order in the instant motion under Rule 60(b).

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

When Plaintiffs again moved to vacate the Court's Order and reinstate their Complaint on June 10, 2010, they argued that relief under Rule 60(b) was necessary because, despite promises to the contrary, Defendant CMS had taken no action to resolve the complaints of any of the Plaintiffs. The four moving Plaintiffs seek relief under Rule 60(b) for three different reasons. As to Plaintiff Burke, who had exhausted her administrative claims and prevailed before an ALJ, CMS had not yet issued her a draft in settlement of her claim. (Pls.' Mot., Solomon Certification ¶ 7.) Plaintiffs Merrifield and Oberlander, who had not yet exhausted their administrative claims, had still not been granted any response to their requests to administratively resolve their disputes with CMS. (Id. ¶¶ 8-9.) Finally, Plaintiff Heiser, who passed away in 2009 and whose claims are being pursued by her next of kin Jean Huston in this motion, seeks relief under Rule 60(b) on the grounds that further administrative exhaustion is impossible because her administrative appeal was dismissed in 2008 as untimely filed. (Id. ¶ 10.)

Apparently after receiving notice of Plaintiffs' instant motion and prior to filing opposition on July 6, 2010, Defendants acted to resolve the complaints of Plaintiffs Burke, Merrifield and Oberlander. On June 28, 2010, Defendant CMS issued a check to Plaintiff Burke for the full amount she had been found due by the ALJ. (Defs.' Opp. Ex. A.) On July 2, 2010, CMS granted Plaintiff Merrifield a waiver of recovery for her contested Medicare payment. (Defs.' Opp. Exs. E & F.) On July 6, 2010, CMS similarly granted Plaintiff Oberlander ...

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