Monmouth Medical Center v. Thompson

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

---------

Argued March 23, 2001 Decided July 27, 2001

No. 00-5109

Monmouth Medical Center,

Appellant

v.

Tommy G. Thompson, Secretary,

Department of Health and Human Services,

Appellee

Consolidated with

00-5110

Appeals from the United States District Court

for the District of Columbia

(No. 98cv01228)

(No. 98cv01229)

Robert L. Roth argued the cause and filed the briefs for

appellants.

Gerard Keating, Attorney, U.S. Department of Health &

Human Services, argued the cause for appellee. With him on

the brief were David W. Ogden, Assistant Attorney General,

Anthony J. Steinmeyer, Attorney, Wilma A. Lewis, U.S.

Attorney at the time the brief was filed, Harriet S. Rabb,

General Counsel, U.S. Department of Health & Human Ser-

vices, and Henry R. Goldberg, Deputy Associate General

Counsel.

Before: Edwards, Williams and Sentelle, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: Plaintiff-appellants Monmouth

Medical Center and Staten Island University Hospital are

acute-care facilities that receive payments under Medicare

Part A for services to Medicare beneficiaries. Since 1983, the

Secretary of Health and Human Services has made payments

to cover hospital operating costs for inpatient care under the

Prospective Payment System ("PPS"), which reimburses ac-

cording to a uniform national rate schedule. See 42 U.S.C.

s 1395ww(d). The two hospitals, because they serve a dis-

proportionate share of low-income Medicare recipients, are

eligible for "disproportionate share hospital" ("DSH") adjust-

ments to their PPS payments. See 42 U.S.C.

s 1395ww(d)(5)(F). Monmouth and Staten Island sought the

aid of the district court in an attempt to have their fiscal year

("FY") 1993 and FY 1994 DSH payments recalculated, assert-

ing jurisdiction under 42 U.S.C. s 1395oo(a)(1)(a), 28 U.S.C.

s 1331, and 28 U.S.C. s 1361. The district court decided that

the hospitals failed to follow the statutorily mandated proce-

dure for appealing their payments, that 42 U.S.C. s 1395ii

precluded other review, and that, accordingly, it lacked sub-

ject matter jurisdiction. We reverse.

* * *

The Secretary of HHS has delegated authority to adminis-

ter the Medicare Act to the Health Care Financing Adminis-

tration ("HCFA").1 Determinations of payment amounts are

in turn often delegated to fiscal intermediaries, generally

__________

1 HCFA was recently renamed and became the Centers for

Medicare & Medicaid Services. We will continue to use the desig-

nation HCFA in this opinion to maintain consistency with the

record below.

private insurers that manage the payments for the Secretary.

See 42 U.S.C. s 1395h. Estimated payments are made peri-

odically and an annual accounting is done by the intermediary

in the form of a Notice of Provider Reimbursement ("NPR")

based on a cost report submitted by the provider after the

close of each fiscal year.

The Medicare Act has detailed instructions on the proce-

dures for seeking review of payment determinations. Under

42 U.S.C. s 1395oo(a)(1)(A) a dissatisfied provider may ap-

peal two types of "final determinations" to the Provider

Reimbursement Review Board ("Board"). Clause (i) covers a

fiscal intermediary's final reimbursement decision, commonly

the NPR, and clause (ii) covers a final determination of the

Secretary regarding payments under 42 U.S.C. ss 1395ww(b)

or (d), including the DSH payments. Appeals are to be filed

within 180 days of notice of the final determination. Id.

s 1395oo(a)(3). In either case, the decision of the Board is

then reviewable by filing in district court within 60 days of

notice of the decision, or by the Secretary's own motion. Id.

s 1395oo(f). Section 1395ii generally forecloses other ave-

nues of review by incorporating the review-limiting provision

of the Social Security Act, 42 U.S.C. s 405(h):

The findings and decision of the [Secretary of HHS]

after a hearing shall be binding upon all individuals who

were parties to such hearing. No findings of fact or

decision of the [Secretary of HHS] shall be reviewed by

any person, tribunal, or governmental agency except as

herein provided. No action against the United States,

the [Secretary of HHS], or any officer or employee

thereof shall be brought under section 1331 or 1346 of

title 28 to recover on any claim arising under this sub-

chapter.

42 U.S.C. s 405(h).

The Secretary's regulations provide three additional chan-

nels of administrative review. Under 42 CFR s 405.1841(b),

a late-filed request for Board review may be considered by

the Board, provided that good cause is shown and the request

is filed no more than three years after the NPR. The

regulations also provide two possibilities for the reopening of

a determination, again with a three-year limit. 42 CFR

s 405.1885(a) provides for reopening, at the discretion of the

decisionmaker, on the motion of the provider. Subsection (b)

of that same regulation, which ultimately controls here, man-

dates reopening in one special circumstance. It directs that

the decision

shall be reopened and revised by the intermediary if ...

the [HCFA] notifies the intermediary that such determi-

nation or decision is inconsistent with the applicable law,

regulations, or general instructions issued by the

[HCFA].

42 CFR s 405.1885(b) (emphasis added).

Under the statute authorizing DSH adjustments, eligibility

for and calculation of the payment require the summing of

two fractions. The numerator of one of these fractions calls

for the number of inpatient days of patients who "were

eligible for medical assistance under a State plan [i.e., Medic-

aid]." 42 U.S.C. s 1395ww(d)(5)(F)(vi)(II) (emphasis added).

The Secretary promulgated a regulation on how to make the

calculation and has repeatedly amended it. See 42 CFR

s 412.106 (1993) (version in force when original DSH calcula-

tions were made). At the same time, the Secretary published

an interpretation of that rule in the Federal Register as part

of the notice and comment rulemaking implementing the PPS.

See 51 Fed. Reg. 16,772, 16,777 (May 6, 1986); 51 Fed. Reg.

31,454, 31,460 (September 3, 1986). Reading "who were

eligible" as " 'who (for such days) were eligible' " the Secre-

tary declared that "Medicaid covered days will include only

those days for which benefits are payable." 51 Fed. Reg. at

16,777/2-3 (emphasis added). This interpretation had the

effect of reducing payments by limiting adjustments for pa-

tients who were "eligible" for Medicaid benefits under the

natural reading of the word, but who, because of a particular

state's program, were not receiving such benefits on a given

day.

Neither hospital timely availed itself of the right to appeal

the NPRs in question. But other providers did. The Secre-

tary's interpretation fared poorly, being struck down in four

of our sister circuits. See Cabell Huntington Hosp. v. Shala-

la, 101 F.3d 984 (4th Cir. 1996); Legacy Emanuel Hosp. &

Health Ctr. v. Shalala, 97 F.3d 1261 (9th Cir. 1996); Deacon-

ess Health Serv. Corp. v. Shalala, 83 F.3d 1041 (8th Cir.

1996); Jewish Hosp., Inc. v. Secretary of Health and Human

Services, 19 F.3d 270 (6th Cir. 1994). In light of these

decisions, the Administrator of HCFA issued a ruling that

rescinded the Secretary's challenged interpretation nation-

wide. See Health Care Financing Administration Ruling

97-2 (February 27, 1997) ("HCFAR 97-2"). The ruling es-

tablished a new interpretation more favorable to hospitals,

providing that Medicaid-eligible days would be counted

"whether or not the hospital received payment for those

inpatient hospital services." Id. The new interpretation was

to be effective in the month of its publication and applied to

all as yet unsettled cost reports and all cases in which

"jurisdictionally proper" appeals were still pending. See id.

The ruling explicitly foreclosed retrospective application:

"We will not reopen settled cost reports based on this issue."

Id. Like all such rulings, HCFAR 97-2 was issued without

notice or opportunity for comment.

The hospitals nonetheless sought recalculation of their

DSH payments, filing with their intermediaries for reopening

well within the three years required by s 405.1885. Their

respective intermediaries denied the requests, citing HCFAR

97-2. Both hospitals also sought Board review in attempts to

satisfy the jurisdictional requirements of 42 U.S.C. s 1395oo.

They filed their appeals within 180 days of the publication of

HCFAR 97-2, but the intermediaries objected that the trig-

ger event was each hospital's NPR, not HCFAR 97-2. In

response, the hospitals invoked s 405.1841(b), which allows

extension of the time limit for "good cause." They argued

that the delay was unavoidable because they could not have

anticipated HCFAR 97-2's refusal to grant reopening. In

separate letters to the providers, the Board stated that "your

rationale for late filing does not constitute good cause" and

that it lacked jurisdiction to hear the appeals. Both hospitals

sought review in the district court. We review the district

court's jurisdictional determination de novo. See Moore v.

Valder, 65 F.3d 189, 196 (D.C. Cir. 1995). Although we

eventually conclude that we have jurisdiction under 42 U.S.C.

s 1361, we must first examine all other possible avenues of

relief to ensure that the hospitals have fully exhausted those

which were available.

* * *

The hospitals first invoke the jurisdiction of the district

court under 42 U.S.C. s 1395oo(f) to review the Board's

denial of their appeals. Having acknowledged that their

appeals were untimely with respect to the NPRs, they frame

the appeals here as challenges to the reopening prohibition in

HCFAR 97-2. At issue is whether the Board could properly

consider such an attack. As noted above, clause (i) of

s 1395oo(a)(1)(A), the prerequisite for district court jurisdic-

tion under s 1395oo(f), gives the Board jurisdiction to review

final reimbursement determinations by intermediaries. But

it appears that neither of the hospitals attacked its intermedi-

ary's non-reopening decision in its appeal to the Board, and

an HCFA Ruling is not the action of an intermediary. Staten

Island did not even request reopening until three months

after it sought Board review. And Monmouth, while it tried

for reopening before making its appeal to the board, made

absolutely no mention of its intermediary or its reopening

request in its appeal to the Board.

Clause (ii), which applies to final determinations of the

Secretary regarding a provider's PPS calculations, brings

jurisdiction no nearer. In Washington Hosp. Center v. Bow-

en, 795 F.2d 139 (D.C. Cir. 1986), we determined that a pre-

NPR challenge could be brought where the Secretary had

firmly established "the only variable factor in the final deter-

mination as to the amount of payment under s 1395ww(d)."

Id. at 147. There the Secretary had determined the individu-

al hospitals' "target amount," the erstwhile variable factor,

thereby fixing their payment amounts under the PPS. Even

after concluding, as we do below, that HCFAR 97-2 triggered

mandatory reopening under s 405.1885(b), we fail to see how

an attempt by the Secretary to establish a general policy

against reopening in any way resembles a final determination

"as to the amount of payment," the only kind of determina-

tion for which clause (ii) creates a right of appeal to the

Board. The hospitals argue that the blanket application of

the ruling is irrelevant, because it directly affects their claims

specifically. That may be true, but the ruling does not itself

either establish or alter their "disproportionate patient per-

centage" or the amount of payment they receive under PPS.

Our conclusion that the hospitals' appeals to the Board fit

neither clause (i) nor clause (ii) is at least consistent with, if

not required by, the Supreme Court's recent opinion in Your

Home Visiting Nurse Services, Inc. v. Shalala, 525 U.S. 449

(1999). In that case, the Court reviewed a discretionary

decision under s 405.1885(a) not to reopen a clause (i) deter-

mination, finding that such a refusal did not itself qualify as a

clause (i) determination. It relied on Califano v. Sanders,

430 U.S. 99 (1977), in which it held that judicial review is not

available for the Secretary's decision not to reopen a claim for

benefits under the Social Security Act. Sanders, the Court

pointed out, relied in turn on two factors: "that the opportu-

nity to reopen a benefit adjudication was afforded only by

regulation and not by the Social Security Act itself; and that

judicial review of a reopening denial would frustrate the

statutory purpose of imposing a 60-day limit on judicial

review of the Secretary's final decision." Your Home, 525

U.S. at 454. The Your Home Court also concluded that the

absence of Board review would not deprive petitioners there

of a suitable opportunity for " 'retroactive corrective adjust-

ment[ ]' " because they had an initial opportunity to appeal

their NPRs, plus a chance to secure discretionary reopening

by the intermediary. Id. (citing 42 U.S.C.

s 1395x(v)(1)(A)(ii)).

One might argue that where a provider is seeking reopen-

ing under s 405.1885(b), the Sanders concern about the finali-

ty of decision is lessened, inasmuch as such cases will be

relatively few in number; they arise only if the HCFA

informs intermediaries that a prior decision or set of decisions

is inconsistent with applicable law. But it would still remain

unclear how this distinction would change the character of the

reopening decision itself from "not a final determination" to

"final determination." And of course it should make no

difference if the analysis arises out of clause (i) or clause (ii).

In any event, we reserve our own final determination on this

issue for a case in which it is more clearly presented; here

HCFAR 97-2 can in no way be mistaken for a final determi-

nation for the purposes of judicial review under ss 1395oo(a)

& (f).

The hospitals nonetheless argue that our opinion in Wash-

ington Hospital Center and the HCFA's application of it in

National Medical Enterprises Malpractice PPS Group Ap-

peal, Case No. 87-5050G, HCFA Adm. Dec. (Oct. 5, 1988),

together compel the interpretation that clause (ii) creates a

right to Board review 180 days after the "issuance, modifica-

tion, or invalidation of a HCFAR." App. Open. Br. at 48.

They do no such thing. Washington Hospital Center held

invalid HCFAR 84-1, which had barred appeal of PPS deter-

minations until after an NPR was issued. Providers in

National Medical Enterprises sought Board review for their

payments in the wake of that case, but submitted their appeal

more than 180 days from the issuance of our decision. The

Administrator's decision did indeed suggest that a more

timely appeal would have been successful, but that conclusion

was dependent on the peculiar operation of HCFAR 84-1,

which had previously operated as a bar on properly filed

appeals of right. See National Medical Enterprises at 3. In

the absence of HCFAR 97-2 the hospitals would not have had

recourse to the Board, as they have already acknowledged.

The hospitals next seek jurisdiction under 28 U.S.C. s 1331

for review of the reopening preclusion in HCFAR 97-2. Such

review could not be more plainly off limits under 42 U.S.C.

s 405(h), which explicitly withholds s 1331 jurisdiction for

"any claim arising under this title." The Supreme Court has

consistently interpreted this phrase broadly, such that juris-

diction is barred when " 'both the standing and the substan-

tive basis for the presentation' of the claims" is the Medicare

Act. Heckler v. Ringer, 466 U.S. 602, 615 (1984) (quoting

Weinberger v. Salfi, 422 U.S. 749, 760-61 (1975)). Thus, in

Ringer, the Court declared that plaintiffs seeking to overturn

an HCFA ruling that would limit their recovery for a particu-

lar type of surgery could do so only in the context of the

statutorily authorized process for review. This applied with

equal force to the plaintiff who had not yet undergone the

surgery and therefore had, as yet, no claim for reimburse-

ment. See id. at 620. That the plaintiffs there were not

seeking a specific monetary award was irrelevant. The ulti-

mate goal for those plaintiffs, as for the hospitals here, was

the recovery of additional sums under the Medicare Act. See

id. at 615-16.

The hospitals make a plausible argument that jurisdiction

may be had under the limited exception to s 405(h) carved

out by Bowen v. Michigan Academy of Family Physicians,

476 U.S. 667 (1986), as interpreted by Shalala v. Illinois

Council on Long Term Care, Inc., 529 U.S. 1 (2000). In

Michigan Academy the Court, concluding that Congress had

incorporated s 405(h) mutatis mutandis into the Medicare

Act, allowed a challenge to certain Medicare procedural regu-

lations, reading s 405(h) as limiting review of determinations

but not of "the Secretary's instructions and regulations." 476

U.S. at 680. Illinois Council, however, clarified "Michigan

Academy as holding that s 1395ii does not apply s 405(h)

where application of s 405(h) would not simply channel re-

view through the agency, but would mean no review at all."

529 U.S. at 19. The hospitals here argue that, because they

no longer have jurisdictionally valid claims before the Board

and because HCFAR 97-2 would not in any event apply to

them if they did, they will never have the opportunity to

challenge that ruling. That seems like a plausible outcome.

But despite the intermediaries' reliance on HCFAR 97-2, the

ruling is separate from their denials of reopening, and under

the Secretary's regulations, only the intermediaries have the

jurisdiction to reopen. 42 C.F.R s 405.1885(c). Jurisdiction

to review the ruling would do nothing to provide jurisdiction

over the intermediaries' denials, which would stand un-

changed and no longer susceptible to automatic reopening,

given the expiration of the three-year period for reopenings

under s 405.1885(b).

The hospitals lastly seek mandamus jurisdiction under 28

U.S.C. s 1361 and relief ordering the intermediaries to re-

open their determinations. The Supreme Court has on sever-

al occasions expressly reserved the question of whether

s 1361 jurisdiction is precluded by s 405(h). See Your

Home, 525 U.S. at 456-57 n.3; Ringer, 466 U.S. at 616-17.

But this court has previously determined that s 1361 jurisdic-

tion is not barred, see Ganem v. Heckler, 746 F.2d 844, 850-

52 (D.C. Cir. 1984), joining the virtual unanimity of circuit

courts. See, e.g., Burnett v. Bowen, 830 F.2d 731, 737-38

(7th Cir. 1987); Belles v. Schweiker, 720 F.2d 509, 511-13 (8th

Cir. 1983). Of course, to maintain an action under s 1361, a

plaintiff must both exhaust available remedies and show a

clear non-discretionary duty. Ringer, 466 U.S. at 616-17.

Neither party questions our ability to provide relief in the

absence of the intermediaries as parties to this lawsuit, but

we note that their non-joinder does not undermine our juris-

diction. The intermediaries are agents of the Secretary

charged with the relevant duties under the Medicare Act and

its regulations, and, as such, they may properly be bound by a

writ of mandamus against the Secretary. See United States

ex rel. Rahman v. Oncology Associates, 198 F.3d 502, 511

(4th Cir. 1999); Fed. R. Civ. P. 65(d).

The hospitals argue that 42 CFR s 405.1885(b) was trig-

gered by HCFAR 97-2 and that the intermediaries therefore

had a non-discretionary duty to reopen their determinations.

The Secretary responds that the choice of whether or not to

advise providers that a regulation is "inconsistent with the

applicable law" is committed to the non-reviewable discretion

of the Secretary. But the issue is not whether we may

review the choice to advise or not advise as to consistency

with applicable law; it is whether the Secretary, acting

through the HCFA Administrator, in effect announced a

finding of inconsistency (even while purporting to veto re-

opening).

To be sure, HCFAR 97-2 studiously avoided using the

magic words "inconsistent with the applicable law," and in-

stead called the earlier interpretation "contrary to the appli-

cable law in four judicial circuits." HCFAR 97-2. The

Secretary argues that HCFAR 97-2 merely "acquiesced pro-

spectively," in the interests of national uniformity, without

actually admitting its illegality. But HCFAR 97-2 also pur-

ports to change an existing interpretation, and under the law

of this circuit altering an interpretive rule (interpreting an

agency regulation) requires notice and opportunity for com-

ment unless, of course, the original interpretation was invalid

and therefore a nullity (as discussed below).

The Medicare Act places notice and comment requirements

on the Secretary's substantive rulemaking similar to those

created by the APA. See 42 U.S.C. s 1395hh(b); 5 U.S.C.

s 553(b). We have not had an opportunity to decide whether

the Medicare Act requirement of notice and comment for

"changes [of] a substantive legal standard" creates a more

stringent obligation than the APA or whether it somehow

changes the dividing line between legislative and interpretive

rules.2 But it seems fair to infer that, as the Medicare Act

was drafted after the APA, s 1385hh(c)'s reference to "inter-

pretive rules" without any further definition adopted an ex-

emption at least similar in scope to that of the APA. See

Warder v. Shalala, 149 F.3d 73, 79 n.4 (1st Cir. 1998). We

see no reason to explore the possibility of a distinction here,

as HCFAR 97-2 appears to have none of the indicia that

would lead us to think it a legislative rule under the APA.

See, generally, American Mining Congress v. Mine Safety &

Health Admin., 995 F.2d 1106, 1108-12 (D.C. Cir. 1993). In

the absence of HCFAR 97-2 or its predecessor interpreta-

tion, there would still be an "adequate legislative basis for ...

agency action." Id. at 1112. The definition of eligible inpa-

tient days is merely an "elucidation of rights and duties

created by Congress" and the Secretary's legislative rule.

__________

2 Although no explicit exception to those requirements is made for

"interpretive rules," an exception is implicit in the provision for

periodic publication for such rules, see 42 U.S.C. s 1395hh(c), and

courts generally have assumed the exception. See Health Ins.

Ass'n of America, Inc. v. Shalala, 23 F.3d 412, 422-23 (D.C. Cir.

1994).

Health Ins. Ass'n of America, Inc. v. Shalala, 23 F.3d 412,

423 (citing American Mining Congress, 995 F.2d at 1109-10).

But characterization as an interpretive rule does not relieve

the Secretary of notice and comment requirements when a

valid interpretation exists. In Paralyzed Veterans of Amer-

ica v. D.C. Arena L.P., 117 F.3d 579, 586 (D.C. Cir. 1997), we

concluded that: "Once an agency gives its regulation an

interpretation, it can only change that interpretation as it

would formally modify the regulation itself: through the

process of notice and comment rulemaking." See also Alaska

Professional Hunters Ass'n v. Federal Aviation Administra-

tion, 177 F.3d 1030, 1033-34 (D.C. Cir. 1999); Shell Offshore

Inc. v. Babbitt, 238 F.3d 622, 629 (5th Cir. 2001). Here, a

valid rule interpreting a regulation was clearly in play, and it

was modified by HCFAR 97-2.

The new interpretation established by HCFAR 97-2 would

therefore be unlawful absent notice and comment rulemaking,

unless the original interpretation was itself invalid. See

Dixon v. United States, 381 U.S. 68, 74 (1965) ("A regulation

which ... operates to create a rule out of harmony with the

statute, is a mere nullity.") (internal citations omitted). As a

general rule, it is for the courts to determine whether or not a

regulation is invalid. But as four circuits had already done

so, it certainly can't have been improper for the Secretary to

concede the invalidity nationally. See Independent Petrole-

um Ass'n of America v. Babbitt, 92 F.3d 1248, 1260 n.3 (D.C.

Cir. 1996).

Concluding that the Secretary did in fact give notice of the

interpretation's inconsistency with applicable law, we also find

that s 405.1885(b) imposed a clear duty on intermediaries to

reopen DSH payment determinations for the hospitals. The

portion of HCFAR 97-2 that conflicts with that duty is simply

a nullity. In addition, we think it insignificant that, because

of the Secretary's own three year limitation, reopening would

not be available if sought today. Although mandamamus is

classified as a legal remedy, its issuance is largely controlled

by equitable principles. See Duncan Townsite Co. v. Lane,

245 U.S. 308, 312 (1917). Since both hospitals were within

the three-year mark when they made their requests for

reopening, they are entitled to the reopening that was due

them at that time. Cf. Burnett v. Bowen, 830 F.2d 731, 736-

41 & n.7 (7th Cir. 1987).

The Secretary argues that the hospitals have failed to

exhaust their remedies, because they failed to file proper

appeals of their NPRs under s 1395oo(a). But that fact is

hardly relevant here. The question is whether they have

done all they can to vindicate their right to reopening. We

have already shown above how all other avenues of relief are

either foreclosed or futile.

Finally, the Secretary half-heartedly suggests that the

hospitals may have waived mandamus jurisdiction by failing

to specify s 1361 as one of the bases for jurisdiction until

their response to the Secretary's motion to dismiss. But the

Secretary does not contend (apart from the arguments reject-

ed above) that the hospitals failed to allege sufficient facts to

support their mandamus claim, the essential test for legal

sufficiency. See Richardson v. U.S., 193 F.3d 545, 549 (D.C.

Cir. 1999). Nor does the Secretary argue that the govern-

ment was in any way prejudiced by the trustees' failure to list

s 1361 in their complaints. The government has at best

identified a procedural failing that would easily have been

remedied by a request to amend the complaints that in no

way affects our authority to consider issuance of a writ. See

Caribbean Broadcasting System, Ltd. v. Cable & Wireless

P.L.C., 148 F.3d 1080, 1083-84 (D.C. Cir. 1998); Fed R. Civ.

P. 15(a). Indeed courts can treat certain requests for manda-

tory injunctions as petitions for a writ of mandamus, see, e.g.,

National Wildlife Federation v. U.S., 626 F.2d 917, 918 n.1

(D.C. Cir. 1980), and habeas petitions as ones for mandamus,

see, e.g., United States ex rel. Schonbrun v. Commanding

Officer, 403 F.2d 371, 374 (2d Cir. 1968); Long v. Parker, 390

F.2d 816, 818-819 (3d Cir. 1968).

Accordingly, the judgment of the district court is reversed

and the case remanded for further proceedings consistent

with this opinion.

So ordered.