Gray Panthers Project Fund v. Thompson

304 F. Supp.2d 36 (D.D.C. 2004) ; Clearinghouse Number: 54065

Description

Finding Clear and Convincing Evidence of HHS Secretary’s Bad Faith, Court Awards Medicare Beneficiaries $173,922 in Attorney Fees

Abstract

The district court granted plaintiffs’ motion for attorney fees after finding clear and convincing evidence that defendant secretary of the U.S. Department of Health and Human Services had acted in bad faith. The court said that, “while aware of the unambiguous statutory mandates” of 42 U.S.C. §§ 1395w-24(a)(1) and 1395w-21(d), defendant “nevertheless engaged in conduct that required plaintiffs to undertake otherwise unnecessary litigation to vindicate plain legal rights.” Plaintiffs sued after defendant, in response to industry complaints, extended the statutory deadline for Medicare+Choice organizations to submit information about their coverage and informed industry associations, but not beneficiaries, of the extension. “In equally blatant contravention of statutory authority,” in the court’s words, defendant announced his intention to omit plan comparison data from a mailing to beneficiaries. The court granted plaintiffs’ motion for preliminary injunction. Plaintiffs sought fees under the Equal Access to Justice Act: 28 U.S.C. § 2412(b), which authorizes fees to the extent available under common law, including instances of bad faith, with no statutory ceiling on the hourly rate; and 28 U.S.C. § 2412(d), which authorizes fees when the United States’ position is not substantially justified. Defendant did not dispute that his position was not substantially justified under Section 2412 (d) but contended that he did not act in bad faith and therefore attorney fees at the market rate as permitted under Section 2412(b) were not warranted. The court said that defendant’s “wanton conduct” offered little to counter a finding of bad faith and that he had “no more right to violate the law because he thinks he knows best than any other public official.” The court concluded that defendant’s actions, coupled with his failure to consult with or notify beneficiaries, were “extraordinary circumstances” warranting an award of bad-faith attorney fees.

Additional Information

Attorney Information
Plaintiffs reprsented by Vicki Gottlich, Patricia Nemore, Center for Medicare Advocacy, Inc., 1101 Vermont Ave., N.W., Ste. 1001, Washington, D.C. 20005 (202.216.0028); Gill Deford, Judith Stein, Center for Medicare Advocacy, Inc., P.O. Box 350, Willimantic, CT 06226 (860.456.7790)
Docket Date
2004-02-23 00:00:00+00:00