Bradley v. Sebelius Update

Medicare Set-Aside Blog on November 1, 2011
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Ever wonder why after a monumental decision such as Bradley that nothing ever really came of it?  As you may have guessed, DHHS apparently did not appeal the decision. Of course why would they? As it stands, one lonely circuit is sitting out there with a sole opinion contrary to the rest of the country and the Secretary of Heath and Human Services – hardly persuasive, as the 9th circuit quickly demonstrated with issuing an opinion against apportionment a mere month after Bradley. CMS continues to demand more than its equitable share of settlement proceeds and the battle continues. To appeal would give the Supreme Court an opportunity to render a definitive opinion and potentially take CMS’ super lien away from it once and for all as the 11th Circuit’s opinion is clearly the equitable outcome. Our judicial system cannot sustain the burden proposed by CMS in order to pay anything less than that which is routinely demanded in secondary payer situations. This is the most likely reason why we continue to wait for a decision out of the 6th Circuit Appellate Court in Hadden. Who wants to render a decision that may very well have to sustain Supreme Court scrutiny? Does it really take 383 days and counting to render an opinion after oral arguments?

Back to the update, on remand to the district court, judgment was entered in accordance with the appellate opinion and the plaintiffs filed a motion for attorney’s fees and costs pursuant to § 2412 of the EAJA, permitting the court discretion to award fees where the government acted “in bad faith, vexatiously, wantonly, or for oppressive reasons.” District court denied the motion on the basis that the Secretary did not act in bad faith and the plaintiffs appealed. The COA affirmed the decision, finding that despite their finding to the contrary, the Secretary did nothing more than assert a recovery right in accordance with the department’s long standing policies.

CARVONDELLA BRADLEY,  et. al., Plaintiffs-Appellants, versus SECRETARY, U.S.
2011 U.S. App. LEXIS 22015
October 28, 2011, Decided