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Lewis v. Secretary of Health and Human Services

United States District Court, D. Massachusetts

March 30, 2019

Carol Lewis, Plaintiff,
v.
Secretary of Health and Human Services, Defendant.

          MEMORANDUM & ORDER

          Nathaniel M. Gorton United States District Judge.

         This case arises out of a dispute over attorneys' fees and costs incurred pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”) following this Court's order allowing the motion for summary judgment of Carol Lewis (“Lewis” or “plaintiff”).

         I. Background

         Carol Lewis suffers from Type I diabetes and hypoglycemia and hyperglycemic unawareness. As a result, her doctor prescribed a continuous glucose monitor (“CGM”). In March, 2013, Lewis submitted five CGM device claims to the National Health Insurance Corporation (“the NHIC”) for a total of $2, 482. Those claims were denied and plaintiff appealed to the Medicare Appeals Council (“MAC”) in March, 2014. The MAC also denied her claims, finding that because the CGM was “precautionary” and did not “serve a medical purpose”, it was not covered under the Durable Medical Equipment (“DME”) Medicare benefit.

         After the MAC denial, plaintiff filed parallel appeals relating to her CGM claim for Medicare coverage. In October, 2015, she brought suit against the Secretary of Health and Human Services (“the Secretary” or “defendant”) in federal court and this Court dismissed her claim as moot in August, 2017. Upon reconsideration, however, this Court allowed plaintiff's motion for summary judgment in April, 2018, on the grounds that the Secretary's denial of CGM coverage constituted legal error and was not supported by substantial evidence.

         At the same time, plaintiff appealed the MAC decision to the Departmental Appeals Board, Civil Remedies Division (“CRD”), in December, 2015. In April, 2016, the CRD reversed the MAC decision on the grounds that NHIC's reliance on two informal determinations, the Local Coverage Determination (“LCD”) and the Local Coverage Article (“LCA”), was unreasonable (“the LCD challenge”). That decision was then vacated by the Departmental Appeals Board, Appellate Division, one year later.

         Pending before the Court is plaintiff's motion for attorneys' fees and costs incurred during this litigation.

         II. Analysis

         Lewis has filed three motions: a motion for costs, a motion for fees and a motion to strike. The motion to strike relates to the Secretary's sur-reply. The Court will address the motion to strike before moving on to the underlying analysis of the fees and costs claimed.

         A. Plaintiff's motion to strike defendant's sur-reply

         Plaintiff moves to strike the Secretary's sur-reply on the grounds that counsel 1) did not meet and confer in good faith to the narrow issues in this litigation and 2) failed to identify new arguments by plaintiff in his sur-reply.[1] The Secretary responds that 1) Local Rule 7.1 does not require a conference with respect to the substance of every memorandum and 2) plaintiff has provided no authority for her motion to strike.

         The Court agrees with plaintiff that the Secretary had ample opportunity to contest fees because they were disclosed in great detail, including the fees related to the LCD challenge. In fact, it does not appear that any of the Secretary's sur-reply responses arises out of “new” information discovered since plaintiff's reply. Nevertheless, notwithstanding the tenuous grounds on which defendant submits her sur-reply, motions to strike pursuant to Fed.R.Civ.P. 12(f) are limited to pleadings identified in Fed.R.Civ.P. 7(a). Because this sur-reply does not qualify as a pleading under Rule 12(f), plaintiff's motion to strike will be denied and the Court will consider it with respect to the underlying motion for fees. Plaintiff will not be entitled to fees relating to the motion to strike.

         B. EAJA Fees

         In the United States, each party is generally required to bear its own attorneys' fees. Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep't of Health & Human Res., 532 U.S. 598, 602 (2001). The Equal Access to Justice Act (“the EAJA”), 28 U.S.C. § 2412, is an exception to that rule in that it provides for attorneys' fees and expenses under §§ 2412(b) and (d). In allowing for the reimbursement of fees, the EAJA serves two broad functions: 1) to ensure that individuals are not deterred from challenging unjustified government action and 2) to deter “unreasonable exercise of Government authority”. Ardestani v. I.N.S., 502 U.S. 129, 138 (1991).

         1. Section 2412(d)

         Plaintiff seeks to recover fees and expenses pursuant to Section 2412(d), which provides that

a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the ...

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