Petition for Writ of Certiorari — Hillsborough County Hospital Authority v. Shalala

Supreme Court brief1995

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Supreme Court of the United States

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October Term, 1995

HILLSBOROUGH COUNTY HOSPITAL AUTHORITY, et al.,

Petitioners,

VS.

DONNA E. SHALALA, SECRETARY, DEPARTMENT OF

HEALTH AND HUMAN SERVICES,

Respondent.

Petition for a Writ of Certiorari to the United States Court of

Appeals for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

NANCY A. ROMFH

Counsel of Record

MERSHON, SAWYER, JOHNSTON,

DUNWODY & COLE

Attorneys for Petitioners

Phillips Point - East Tower

777 South Flagler Drive, Suite 900

West Palm Beach, Florida 33401

(407) 659-5990

-ij-

QUESTION PRESENTED FOR REVIEW

Whether the "special circumstances" adjustments mandated

under 42 U.S.C. §1395ww(b)(4)(A) are applicable to the

calculation of the hospital-specific portion of a hospital's

Medicare reimbursement under 42 U.S.C. §1395ww(d)

during the four year transition period under Medicare's

prospective payment system.

-ill-

LIST OF ALL PARTIES TO THE PROCEEDINGS '

Adventist Health System/Sun Belt, Inc. d/b/a Florida

Hospital

Parent Company: None

Subsidiaries/Affiliates: East Pasco Medical Center;

Florida Hospital Altamonte; Florida Hospital

Apopka; Florida Hospital East Orlando; Florida

Hospital Kissimmee; Florida Hospital Lake Placid;

Florida Hospital Waterman; Florida Hospital

Wauchula; Volusia Medical Center

Adventist Health System/Sun Belt, Inc. d/b/a Medical Center

Hospital

Parent Company: None

Subsidiaries/Affiliates: East Pasco Medical Center;

Florida Hospital Altamonte; Florida Hospital

Apopka; Florida Hospital East Orlando; Florida

Hospital Kissimmee; Florida Hospital Lake Placid;

Florida Hospital Waterman; Florida Hospital

Wauchula; Volusia Medical Center

| Rule 29.1 Listing: The parent companies and

subsidiaries/affiliates of the 114 Petitioners, to the extent they have been

ascertained, are listed in conjunction with the List of All Parties to the

Proceedings. We are in the process of obtaining the remainder of the

names of parent companies and subsidiaries/affiliates of the 114

Petitioners. Because of the number of Petitioners, and because most, if

not all of the Petitioners have parent companies and/or subsidiaries, we

were unable to complete this formidable task within the time restraints

for filing this Petition. We will file lists with the required information as

soon as it is obtained and compiled.

-iv-

Adventist Health System/Sun Belt Inc. d/b/a Walker

Memorial Hospital

Parent Company: None

Subsidiaries/Affiliates: East Pasco Medical Center;

Florida Hospital Altamonte; Florida Hospital!

Apopka; Florida Hospital East Orlando; Florida

Hospital Kissimmee; Florida Hospital Lake Placid;

Florida Hospital Waterman; Florida Hospital

Wauchula; Volusia Medical Center

Baptist Hospital, Inc. d/b/a Baptist Hospital

Parent Company: (Information not available)

Subsidiaries/Affiliates (not already listed as Petitioner):

Baptist Hospital of Miami, Inc. d/b/a Baptist Hospital of

Miami

Parent Company: Baptist Health System

Subsidiaries/Affiliates: Mariners Hospital, Tavernier;

SMH Homestead Hospital; South Miami Hospital

Baptist Medical Center d/b/a Baptist Medical Center-

Beaches

Parent Company: Baptist/St. Vincent's Health System

Subsidiaries/Affiliates: Baptist Medical Center

(Jacksonville); Baptist Medical Center-Nassau,

Fernandina Beach; Riverside Hospital (Jacksonville)

(also part of Daughters of Charity); St. Vincent's

Medical Center (Jacksonville) (also part of Daughters

of Charity); Wolfson Children's Hospital

(Jacksonville)

Baptist Regional Health Services, Inc., d/b/a Jay Hospital

Parent Company: Baptist Health Care, Inc.

Subsidiaries/Affiliates: Baptist Hospital (Pensacola);

Gulf Breeze Hospital, Inc.

-\V-

Bartow Memorial Hospital, Inc., d/b/a Bartow Memorial

Hospital

Parent Company: Quorum Health Resources

Subsidiaries/Affiliates: Bascom Palmer Eye Institute;

Bert Fish Medical Center; Brooksville Regional

Hospital; DeSoto Memorial Hospital, Inc.; Glades

General Hospital; Hendry General Hospital; Hialeah

Hospital; Jackson Hospital; Jupiter Medical Center;

Leesburg Regional Medical Center; South Lake

Memorial Hospital, Inc.; Spring Hill Regional

Hospital; University of Miami Hospital/Clinic

Bay Hospital, Inc. d/b/a HCA Gulf Coast Comm.

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not availabie)

Bayfront Medical Center, Inc., d/b/a Bayfront Medical

Center

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Bethesda Memorial Hospital, Inc. d/b/a Bethesda Memorial

Hospital

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Big Sun Healthcare Systems, Inc., d/b/a Monroe Regional

Medical Center

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Board of Commissioners of Halifax Medical Center d/b/a

Halifax Medical Center

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

-Vi-

Boca Raton Community Hospital, Inc. d/b/a Boca Raton

Community Hospital

Parent Company: BRCH Corporation

Subsidiaries/A ffiliates: BRCH Foundation, Inc.; BRCH

Home Health Service, Inc.; BRCH Imaging, Inc.;

BRCH Health Plans, Inc.; BRCH Properties, Inc.

Cape Coral Medical Center, Inc. d/b/a Cape Coral Hospital

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Cedars Medical Center, Inc., d/b/a Cedars Medical Center

Parent Company: Columbia/HCA South Florida Division

Subsidiaries/Affiliates: Aventura Hospital & Medical

Center; Columbia Hospital (West Palm Beach);

Deering Hospital (Miami); Kendall Regional Medical

Center (Miami); Miami Heart Institute, Inc.;

Northwesi Regional Medical Center (Margate); Palm

Beach Regional Hospital (Lake Worth); Palms West

Hospital (Loxahatchee); Pembroke Pines Hospital;

Plantation General Hospital; Pompano Beach

Medical Center; University Hospital - Tamarac;

University Pavillion Hospital (Tamarac); Victoria

Pavillion (Miami); Westside Regional Medical

Center (Plantation)

Central FL Reg. d/b/a Central FL Reg.

Parent Company: Columbia/HCA Central Florida

Division

Subsidiaries/Affiliates: Columbia Park Medical Center

(Orlando); Daytona Medical Center (Daytona Beach);

Lawnwood Pavilion (Ft. Pierce); Lawnwood

Regional Medical Center (Ft. Pierce); Medical

Center/Port St. Lucie; Osceola Regional Hospital

(Kissimmee); Psychiatric Care Center (Winter Park);

Raulerson Hospital (Okeechobee); South Seminole

= eo ree ll

-Vil-

Hospital (Longwood); Winter Park Memorial

Hospital

CHS Management Corporation d/b/a University General

Hospital

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

CHS Management Corporation d/b/a Women's Medical

Center (Lake Seminole)

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

City of Homestead d/b/a James Archer Smith Hospital

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Clearwater Community Hospital Limited Partnership d/b/a

Clearwater Community Hospital

Parent Company: Columbia/HCA Tampa Bay Division

Subsidiaries/Affiliates: Brandon Hospital; Columbia

Hospital of New Port Richey; Columbia Regional

Medical Center at Bayonet Point (Hudson);

Columbia/HCA Oak Hill Community Hospital

(Springhill); Dade City Hospital; Edward White

Hospital (St. Petersburg); L.W. Blake Hospital

(Bradenton); Largo Medical Center; Northside

Hospital (St. Petersburg); South Bay Hospital (Sun

City Center); St. Petersburg General Hospital

Cleveland Clinic Florida Hospital d/b/a North Beach

Hospital

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

-Vill-

Community Hospital of Humana, Inc., d/b/a Humana

Hospital-Cypress

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Community Hospital of the Palm Beaches, Inc. d/b/a

Humana Hospital-Palm Beaches

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

DeSoto Memorial Hospital, Inc. d/b/a DeSoto Memorial

Hospital?

Parent Company: Quorum Health Resources

Subsidiaries/Affiliates: Bartow Memorial Hospita!;

Bascom Palmer Eye Institute; Bert Fish Medical

Center; Brooksville Regional Hospital; Glades

General Hospital; Hendry General Hospital; Hialeah

Hospital; Jackson Hospital; Jupiter Medical Center;

Leesburg Regional Medical Center; South Lake

Memorial Hospital, Inc.; Spring Hill Regional

Hospital; University of Miami Hospital/Clinics

Doctors General Hospital, Ltd., d/b/a Universal Medical

Center

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Doctors Hospital of Sarasota, Ltd. d/b/a Doctors Hospital of

Sarasota

Parent Company: Columbia/HCA S.W. Florida Division

Subsidiaries/Affiliates: East Point Hospital; Englewood

Community Hospital, Inc.; Fawcett Memorial

. Managed by Quorum Health Resources.

-1X-

Hospital; Gulf Coast Hospital; Southwest Florida

Regional Medical Center

Doctors Mercy Hospital, Ltd., d/b/a AMI Medical Center

Orlando (Brookwood Community Hospital)

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Dr. John T. MacDonald Foundation d/b/a Doctor's Hospital

of Coral Gables

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

HCA Health Services of Florida, inc. d/b/a Bayonet Point

Hospital

Parent Company: Columbia/HCA Tampa Bay Division

Subsidiaries/Affiliates: Brandon Hospital; Clearwater

Community Hospital; Columbia Hospital of New

Port Richey; Columbia/HCA Oak Hill Community

Hospital (Springhill); Dade City Hospital; Edward

White Hospital (St. Petersburg); Largo Medical

Center; Northside Hospital (St. Petersburg); South

Bay Hospital (Sun City Center); St. Petersburg

General Hospital

HCA Health Services of Florida, Inc. d/b/a L.W. Blake

Memorial Hospital

Parent Company: Columbia/HCA Tampa Bay Division

Subsidiaries/Affiliates: Brandon Hospital; Clearwater

Community Hospital; Columbia Hospital of New

Port Richey; Columbia Regional Medical Center at

Bayonet Point (Hudson); Columbia/HCA Oak Hill

Community Hospital (Springhill); Dade City

Hospital; Edward White Hospital (St. Petersburg);

Largo Medical Center; Northside Hospital (St.

A lanl An ate OTE an ted i aR at

Petersburg); South Bay Hospital (Sun City Center);

St. Petersburg General Hospital

HCA Health Services of Florida, Inc. d/b/a HCA North

Florida Medical Center

Parent Company: Columbia/HCA North Florida Division

Subsidiaries/Affiliates: Ft. Walton Beach Medical

Center; Gulf Coast Hospital (Panama City); Hamilton

County Memorial Hospital (Jasper); Lake City

Medical Center; Mariane Community Hospital

(Ocala); North Okaloosa Medical Center (Crestview);

Putnam Community Hospital (Palatka); Santa Rosa

Medical Center (Milton); Tallahassee Community

Hospital; Twin Cities Hospital (Niceville); West

Florida Regional Medical Center (Pensacola)

HCA Health Services of Florida, Inc. d/b/a HCA Northwest

Regional Hospital

Parent Company: Columbia/HCA South Florida Division

Subsidiaries/A ffiliates: Aventura Hospital & Medical

Center; Cedars Medical Center; Columbia Hospital

(West Palm Beach); Deering Hospital (Miami);

Kendall Regional Medical Center (Miami); Miami

Heart Institute (Miami Beach); Palm Beach Regional

Hospital (Lake Worth); Palms West Hospital

(Loxahatchee); Pembroke Pines Hospital; Plantation

General Hospital; Pompano Beach Medical Center;

University Hospital - Tamarac; University Pavillion

Hospital (Tamarac); Victoria Pavillion (Miami);

Westside Regional Medical Center (Plantation)

Hillsborough County Hospital Authority d/b/a Tampa

General Hospital

Parent Company: None

Subsidiaries/Affiliates: TGH University Psychiatry

Center; Tampa General Hospital

|

-xi-

Holmes Regional Medical Center, Inc. d/b/a Holmes

Regional Medical Center

Parent Company: None

Subsidiaries/A ffiliates: Palm Bay Community Hospital

Holy Cross Hospital, Inc. d/b/a Holy Cross Hospital

Parent Company: Eastern Mercy Health System

Subsidiaries/A ffiliates: None

Hospital, Inc. d/b/a AMI Beach Gardens Medical Center

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Hospital Board of Directors of Lee County d/b/a/ Lee

Memorial Hospital

Parent Company: None

Subsidiaries/A ffiliates: Lee Memorial/Health Park

Medical Center

Hospital Corp of AME d/b/a HCA Twin Cities Hospital

Parent Company: (Information not available)

Subsidiaries/A ffiliates: (Information not available)

Humana, Inc. d/b/a Humana Hospital-Sebastian

Parent Company: (Information not available)

Subsidiaries/A ffiliates: (Information not available)

Humana, Inc. d/b/a Humana Hospital-South Broward

Parent Company: (Information not available)

Subsidiaries/A ffiliates: (Information not available)

Humana, Inc. d/b/a Humana Hospital-Biscayne

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

-Xii-

Humana of Florida, Inc. d/b/a Humana Hospital-Bennett

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Humana of Florida, Inc. d/b/a Humana Hospital-Daytona

Beach

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Humana of Florida, Inc. d/b/a Humana Hospital-Ft. Walton

Beach

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Humana of Florida, Inc. d/b/a Humana Hospital-Kissimmee

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Humana of Florida, Inc. d/b/a Humana Hospital-Lucerne

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Humana of Florida, Inc. d/b/a Humana Hospital-Orange Park

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Humana of Florida, Inc. d/b/a Humana Hospital-Pasco

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Humana of Florida, Inc. d/b/a Humana Hospital-St.

Petersburg

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

-Xlll-

Humana of Florida, Inc. d/b/a Humana Women's Hospital-

Tampa

Parent Company: (Information not available)

Subsidiaries/A ffiliates: (Information not available)

Humbosco, Inc. d/b/a Humana Hospital-Northside

Parent Company: (Information not available)

Subsidiaries/A ffiliates: (Information not available)

Humhosco, Inc. d/b/a Humana Hospital-Brandon

Parent Company: (Information not available)

Subsidiaries/A ffiliates: (Information not available)

JFK Medical Center, Inc. d/b/a JFK Medical Center

Parent Company: (Information not available)

Subsidiaries/A ffiliates: (Information not available)

Jupiter Hospital, Inc. d/b/a Jupiter Hospital

Parent Company: Quorum Health Resources

Subsidiaries/A ffiliates: Bartow Memorial Hospital;

Bascom Palmer Eye Institute: Bert Fish Medical

Center; Brooksville Regional Hospital; DeSoto

Memorial Hospital, Inc.: Glades General Hospital:

Hendry General Hospital; Hialeah Hospital; Jackson

Hospital; Leesburg Regional Medical Center: South

Lake Memoria! Hospital, Inc.; Spring Hill Regional

Hospital; University of Miami Hospital/Clinics

Kissimmee Memorial Hospital, Inc., d/b/a Kissimmee

Memorial Hospital

Parent Company: (Information not available)

Subsidiaries/A ffiliates: (Information not available)

-XI1V-

Lake Wales Hospital Association, Inc. d/b/a Lake Wales

Hospital Association, Inc.

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Lakeland Regional Medical Center, Inc., d/b/a Lakeland

Regional Medical Center

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Largo Medical Center Hospital, Inc. d/b/a HCA Marion

Community Hospital

Parent Company: Columbia/HCA Tampa Bay Division

Subsidiaries/Affiliates: Brandon Hospital; Clearwater

Community Hospital; Columbia Hospital of New

Port Richey; Columbia Regional Medical Center at

Bayonet Point (Hudson); Columbia/HCA Oak Hill

Community Hospital (Springhill); Dade City

Hospital; Edward White Hospital (St. Petersburg);

L.W. Blake Hospital (Bradenton); Northside Hospital

(St. Petersburg); South Bay Hospital (Sun City

Center); St. Petersburg General Hospital

Leesburg Regional Medical Center, Inc., d/b/a Leesburg

Regional Medical Center, Inc.

Parent Company: Quorum Health Resources

Subsidiaries/Affiliates: Bartow Memorial Hospital;

Bascom Palmer Eye Institute; Bert Fish Medical

Center; Brooksville Regional Hospital; DeSoto

Memorial Hospital, Inc.; Glades General Hospital;

Hendry General Hospital; Hialeah Hospital; Jackson

Hospital; Jupiter Medical Center; South Lake

Memorial Hospital, Inc.; Spring Hill Regional

Hospital; University of Miami Hospital/Clinics

>

;

-XV-

Lifemark Hospitals of Florida, Inc. d/b/a AMI Palmetto

General Hospital

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Lower Florida Keys Health System, Inc. d/b/a Depoo

Hospital

Parent Company: None

Subsidiaries/A ffiliates: Health System Florida Keys and

Depoo

Manatee Hospitals & d/b/a Manatee Memorial Hospital

Parent Company: Universal Health Services, Inc.

Subsidiaries/A ffiliates: THC-Hollywood; Transitional

Hospital of Tampa; Universal Medical Center;

Wellington Regional Medical Center

Memorial Hospital of Tampa, Inc. d/b/a Memorial Hospital

of Tampa

Parent Company: Tenet Healthcare Corporation

Subsidiaries/A ffiliates: Delray Community Hospital:

Hollywood Medical Center; North Ridge Medical

Center; Palm Beach Gardens Medical Center:

Palmetto General Hospital; Palms of Pasadena

Hospital; Pinecrest Rehabilitation Hospital at Delray;

Seven Rivers Community Hospital; Town and

Country Hospital; West Boca Medical Center

Memorial Hospital-Flagler, Inc. d/b/a Memorial Hospital

Parent Company: Memorial Health Systems

Subsidiaries/A ffiliates: Memorial Hospital (Ormond

Beach); Memorial Hospital (West Volusia)

-XVi-

Mercy Hospital, Inc. d/b/a Mercy Hospital

Parent Company: Daughters of Charity

Subsidiaries/Affiliates: Riverside Hospital (Jacksonville);

Sacred Heart Hospital Pensacola; St. Vincent's

Hospital (Jacksonville)

Methodist Hospital, Inc. d/b/a Methodist Medical Center

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Miami Heart Institute, Inc., d/b/a Miami Heart Institute

Parent Company: Columbia/HCA South Florida Division

Subsidiaries/Affiliates: Aventura Hospital & Medical

Center; Cedars Medical Center; Columbia Hospital

(West Palm Beach); Deering Hospital (Miami);

Kendall Regional Medical Center (Miami);

Northwest Regional Medical Center, (Margate); Palm

Beach Regional Hospital (Lake Worth); Palms West

Hospital (Loxahatchee); Pembroke Pines Hospital;

Plantation General Hospital; Pompano Beach

Medical Center; University Hospital - Tamarac;

University Pavillion Hospital (Tamarac); Victoria

Pavillion (Miami); Westside Regional Medical

Center (Plantation)

Morton F. Plant Hospital Association, Inc. d/b/a Morton F.

Plant Hospital

Parent Company: Morton Plant/Mease Health Care

Subsidiaries/A ffiliates: Mease Hospital (Countryside,

Safety Harbor); Mease Hospital (Dunedin)

3 Riverside Hospital and St. Vincent's Hospital are also part of

Baptist/St. Vincent's Health System.

eS se ee Oe ee ee Pe ee eee ee Se See ee ‘a

-XVii-

Mount Sinai Hospital of Greater Miami, Inc., d/b/a Mount

Sinai Medical Center

Parent Company: (Information not available)

Subsidiaries/A ffiliates: (Information not available)

National Medical Enterprises d/b/a Delray Community

Hospital

Parent Company: (Information not available)

Subsidiaries/A ffiliates: (Information not available)

New Port Richey Hospital, Inc. d/b/a HCA New Port Richey

Hospital (Community Hospital of New Port Richey)

Parent Company: (Information not available)

Subsidiaries/A ffiliates: (Information not available)

NME Hospital, Inc. d/b/a Hollywood Medical Center

Parent Company: (Information not available)

Subsidiaries/A ffiliates: (Information not available)

NME Hospital, Inc. d/b/a Palms of Pasadena Hospital

Parent Company: (Information not available)

Subsidiaries/A ffiliates: (Information not availabie)

NME Hospital, Inc. d/b/a Steven Rivers Community

Hospital

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

North Brevard County Hospital District d/b/a Jess Parrish

Medical Center

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

-XVIii-

North Broward Hospital, North Broward Hospital District

d/b/a Broward General Medical Center

Parent Company: None

Subsidiaries/Affiliates: Coral Springs Medical Center;

Imperial Point Medical Center (Ft. Lauderdale)

North Broward Hospital d/b/a Imperial Point Medical Center

Parent Company: North Broward Hospital District

Subsidiaries/Affiliates: Coral Springs Medical Center

North Broward Hospital d/b/a North Broward Medical

Parent Company: North Broward Hospital District

Subsidiaries/Affiliates: Coral Springs Medical Center;

Imperial Point Medical Center (Ft. Lauderdale)

North Miami Medical Center, Ltd., d/b/a ies Regional

Medical Center

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

North Shore Medical! Center, Inc., d/b/a North Shore Medical

Center

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Notami Hospitals of Florida, Inc. d/b/a Lake City Medical

Center

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Orlando Regional Medical Center, Inc. d/b/a Orlando

Regional Medical Center

Parent Company: Orlando Regional Healthcare System

Subsidiaries/Affiliates: Arnold Palmer Hospital for

Children & Woman; Sand Lake Hospital; South

Seminole Hospital; St. Cloud Hospital

-X1X-

Palm Beach Gardens Community Hospital, Inc. d/b/a AMI

Beach Gardens Medical Center

Parent Company: Tenet Healthcare Corporation

Subsidiaries/A ffiliates: Delray Community Hospital:

Hollywood Medical Center; Memorial Hospital of

Tampa; North Ridge Medical Center; Palmetto

General Hospital: Palms of Pasadena Hospital:

Pinecrest Rehabilitation Hospital at Delray; Seven

Rivers Community Hospital; Town & Country

Hospital; West Boca Medical Center

Pan American Hospital d/b/a American Hospital

Parent Company: (Information not available)

Subsidiaries/A ffiliates: (Information not available)

Public Health Trust of Dade County d/b/a Jackson Memorial

Hospital

Parent Company: (Information not available)

Subsidiaries/A ffiliates: (Information not available)

Riverside Hospital, Inc., d/b/a Riverside Hospital

Parent Company: Daughters of Charity

Subsidiaries/A ffiliates: Sacred Heart Hospital of

Pensacola; St. Vincent's Hospital; Mercy Hospital

Saint Anthony's Hospital, Inc. and Saint Anthony's Health

Care Center, d/b/a/ Saint Anthony's Hospital

Parent Company: Allegany Health System

Subsidiaries/A ffiliates: St. Joseph's Hospital: St. Joseph's

Women's Hospital: St. Mary's Hospital

Shands Teaching Hospital & Clinics, Inc. d/b/a Shands

Teaching Hospitals and Clinics

Parent Company: ( Information not available)

Subsidiaries/A ffiliates: (Information not available)

-XX-

South Florida Baptist Hospital, Inc. d/b/a South Florida

Baptist Hospital

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

South Miami Hospital, Inc., d/b/a South Miami Hospital

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Southeast Community Health Services, Inc., d/b/a Doctors’

Memorial Hospital

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Southeast Community Health Services, Inc., d/b/a Gadsden

Memorial Hospital

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Southeastern Medical Center, Hospital Contractors, Ltd.,

d/b/a AMI Town & Country Hospital

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Southwest Florida Regional Medical Center, Inc., d/b/a

Southwest Florida Regional Medical Center (Ft. Myers

Community)

Parent Company: Columbia/HCA S.W. Florida Division

Subsidiaries/Affiliates: Doctors Hospital of Sarasota,

Inc.; East Pointe Hospital; Englewood Community

Hospital; Fawcett Memorial Hospital; Gulf Coast

Hospital;

cee nenreerestaiinieaiiaiaeiaiaeaiieiiiiicmmuaiidiliil

De ee ee he Sy

-XXI-

St. Francis Hospital, Inc., d/b/a St. Francis Hospital

Parent Company: (Information not available)

Subsidiaries/A ffiliates: (Information not available)

St. Joseph Hospital of Port Charlotte, F lorida, Inc., d/b/a St.

Joseph Hospital of Port Charlotte

Parent Company: (Information not available)

Subsidiaries/A ffiliates: (Information not available)

St. Luke's Hospital Association d/b/a St. Luke's Hospital

Parent Company: (Information not available)

Subsidiaries/A ffiliates: (Information not available)

St. Mary's Hospital, Inc., d/b/a St. Mary's Hospital

Parent Company: Allegany Health System (also part of

Intracoastal Health System)

Subsidiaries/Affiliates: St. Anthony's Hospital, Inc.; St.

Joseph's Hospital, Inc.; St. Joseph's Women's

Hospital; Good Samaritan Medical Center

St. Vincent's Medical Center, Inc., d/b/a St. Vincent's

Medical Center

Parent Company: Daughters of Charity

Subsidiaries/A ffiliates: Mercy Hospital; Riverside

Hospital; Sacred Heart Hospital of Pensacola

Tallahassee Medical Center, Inc. d/b/a Tallahassee

Community Hospital

Parent Company: (Information not available)

Subsidiaries/A ffiliates: (Information not available)

Tallahassee Memorial Regional Medical Center, Inc.. d/b/a

Tallahassee Memorial Regional Medical Center

Parent Company: Columbia/HCA North Florida Division

Subsidiaries/Affiliates: Fort Walton Beach Medical

Center; Gulf Coast Hospital; Hamilton County

-XXli-

Memorial Hospital; Lake City Medical Center;

Marion Community Hospital; North Florida Regional

Hospital; North Okaloosa Medical Center; Putnam

Community Hospital; Santa Rosa Medical Center;

Twin Cities Hospital; West Florida Regional Medical

Center

Trustees of Mease Hospital, Inc. d/b/a Mease Hospital

Dunedin

Parent Company: Morton Plant/Mease Health Care

Subsidiaries/A ffiliates: Mease Hospital/Countryside,

Safety Harbor; Mease Hospital/Dunedin

University Medical Center d/b/a University Medical Center

of Jacksonville

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

University of Miami, Inc. d/b/a Anne Bates Leach Eye

Hospital

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Victoria Hospital Partnership d/b/a Victoria Hospital

Parent Company: (Information not available)

Subsidiaries/A:filiates: (Information not available)

Washington County Board of County Commissioners d/b/a

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

Northwest Florida Community Hospital

Parent Company: (Information not available)

Subsidiaries/Affiliates: (Information not available)

-XXIli-

West Orange Memorial Hos

Orange Memorial Hospital

Parent Company: (Information not available)

Subsidiaries/A ffiliates: (Information not available)

pital Tax District d/b/a West

Winter Haven Hospital, Inc., d/b/a Winter Haven Hospital

Parent Company: Mid-F lorida Medical Services

Subsidiaries/A ffiliates: Lake Wales Medical Center. Inc.;

Morrow Memorial Hospital: Regency Medical Center

-XX1V-

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW.............. Sahin il

LIST OF ALL PARTIES TO THE PROCEEDINGS.....111

Fe i i ate ED ccitgninecicetescossneisansinansteosetins deshesaiieiicls ill

Re Oe ee tases dcncocnanndannscvdentvcnngnsiicd XXIV

Tee Or Pee ici visncasee cers cei nacdecdncsaninsacs XXVi

ee a arcs pcce tdiciip since -Stcsdorncaacasiins XXX

Ce I Brereton tien rile inesoncaeisneecndancasnis 2

ST ADs OF FRU SN oscccenccnctcasacsnepsssaanenare 2

STATUTES AND REGULATIONS INVOLVED.......... 3

SFG CE NE Oe Nev iperenyceetincrnapncarsstcncdatncesine 3

Fi. ~ FURIE Ts scsi ccsecv sitive ccsensenesens 3

BD -FEESOGEY CE Ge Bi vv cncnsvscssccccctcscsensencones 4

C. Indigent Health Care Program

PI icsk a ste tctepteesscadineiossaaiieds 7

DD, FPOCTIIS IW onc Siccs peecsctrtncssvisicncs 7

REASONS FOR GRANTING THE WRIT..............000 8

A. To Settle a Controversy Among the

Circuits Over a Significant Legal Issue

of Continuing Importance ..............c: eee

“XXV-

1. Secretary's Interpretation Under the

Chevron AnalySis .0.0.0..c.cccecceeeeee.-....... 10

2. The Error of the Secretary's

Interpretation of Subsection

ia he Ne 10

Pe MD cei hai ei Mao ak 12

4. Sacred Heart and Episcopal................. 13

5. District Court Decisions.................... 14

6. Question of Continuing Importance... 15

B. To Prevent the Propagation of

Mistakes and to Clarify the Appropriate

Standard of Deference to Be Given

Agency Interpretation...........00.0.0.0.......... 16

1. Legislative History «00.00.0000... 17

2. The Secretary's Changing Position...... 18

Se I ton feh ic tatathdaliaeescoraieeside co oe 20

-XXVI-

TABLE OF AUTHORITIES

Page

CASES

Andrus v. Glover Construction Company,

SAG U.S. GOB, GU C1 DODD cnccccnssicsccccntescsnassisonsivn 10

Board of Governors of the Fed. Reserve

Sys. v. Dimension Fin. Corp.,

Sa FOE CEE osiisntiomeininnciamanaa 10

Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc.,

467 U.S. 837 (1984) ...... 10, 12, 13, 14, 15, 16, 19

Community Hosp. of Chandler, Inc. v. Sullivan,

963 F.2d 1206 (9th Cir. 1992) ........... 9, 12, 13. 14

Episcopal Hosp. v. Shalala, 994 F.2d 879

(D.C. Cir. 1993), cert. denied,

No. 93-429, 62 U.S.L.W. 3468

CA. BS, Fre ecco 9, 14, 15, 16, 19

Florida and American Medical Assoc., Inc.

v. Department of Health, Education

and Welfare, 479 F. Supp. 1291

Ce Be ee ices ttaiedoccivaneenieneonatanciaceneametan 1]

General Care Corp. v. Sullivan, No. 92-1326................ 15

Good Samaritan Hosp., et al., v. Shalala,

EES GG BIO CERT OR covdiniecspasten 16, 19

Good Samaritan Hosp. Regional Medicai Center

Siem, PAO. FES Fae eicvccdcccrncersiensccesenaes 16

enema aaa emaamcaeeriemacameaemmmamee aiil

~ pine tS husieeocaiadels

DN a8 dite SEINE tS Fikes cae a tle es

aa

-XXVIli-

Greenville Hosp. Sys. v. Heckler.

642 F. Supp. 15 (D.S.C. 1985).................... 15,19

Hospital Corporation of Tennessee vy.

Sullivan, No. 92-1325 .0.....cccccccsccsccscseescesee- 15

Hillsborough County Hosp. Auth. v. Shalala,

49 F.3d 1516 (11th Cir. 1995)... *.

Hospital Corp. of Tennessee v. Sullivan,

nc cceansns-............ 15

Motor Vehicles Manufacturers Association v.

State Farm Mutual Automobile Insurance

Company, 463 U.S. 29 a 19

Newport Hospital and Clinic, Inc. v. Sullivan,

Medicare and Medicaid Guide (CCH)

938,844 (D.D.C. Sept. 24, a 15

Nyack Hospital v. Sullivan, No. 92-0455... 15

Okeechobee Hospital v. Sullivan, No. 92-1323... 15

Redbud Hospital District v. Heckler. Medicare

and Medicaid Guide (CCH) 934,085

(N.D. Cal. July 30, 1984), vacated on

other grounds, 473 U.S. 1308 a 15,19

Sacred Heart Medical Ctr. v. Sullivan, 958 F.2d

537 (3rd Cir. 1992)........... 9, 12, 13, 14, 15, 16, 19

Sunshine Health Sys., Inc. v. Bowen.

809 F.2d 1390 (9th Cir. 1987) 13

-XXVIil-

The Methodist Hospital v. Sullivan, Medicare

and Medicaid Guide (CCH) 939,627 (D.D.C.

Sept. 20, 1991), reversed, 6 F.3d 829

(D.C. Cir. Sept. 16, 1993), cert. denied,

No. 93-1449, 114 S.Ct. 2162

CE Gy CE iitictenctn ie dtinenicimnance 9, 15

STATUTES

ae Anh A TE vckciolscteinenssencinadl pieskincbdaamoeammnedeoadion 2

Me Sil: DEED acdiipibivacterssensinereuiiaalendnee 2,8

SF Fh Bits UIE Hid saceinsreinsadasdladeviadiglsiadassetcaaies 3

Se TFs ee IE cites eis crs insvccucanrsaaoabidseudearmaseien es 10

42 ULS.C. GU SSSWWOD) nccccessccsssenscosecnceens 4,5, 9, 10,11, 12

asasusuitabes visesebtimatamiaian dagaiats sadaandageeamiaten iia 13, 14, 16, 18, 19

Bz UA, BIR ii iicicaccssisccinsccnateciesianivics 4,6, 11, 13

GE GF rae, SEY cssicisosbscipeciinsceinssetnictssalcramueeidanias 4

Florida Statutes $395.101 (1985) .............cccoccsccsssescsesseseee 7

Florida Statutes §409.2662(1) (1985) oo... ececeeceeeeeee 7

REGULATIONS

ae ae Ps RI sahara cizinicas«santhstanuadsesininsaciessiedaeubidatins 2

G2 658 Bete ce tiercsantccd tds atecreicernis 6

GE CF Fis QB Ge kevstecis sn eiteh tie tsagudhecceeiactiaaaalgaadaadsbatontecaeees 6

GP FOE, FBO sevthincscnstiniarintinianDedetiidaabaih 18

a a emer

oe)

-XX1X-

MISCELLANEOUS

Fed. R. Pe Ei elaine 8 8

PO iin etihatnttdicne uit 8

S. Rep. No. 23, 98th Cong., Ist Sess. 53.

reprinted in 1983 U.S. Code Cong. & Admin.

indice Sica oe en ne 6

H.R. Rep. No. 760, 97th Congress, 2d Sess. 420.......... 18

-XXX-

APPENDICES

Appendix A - Opinion of the United States

Court of Appeals, Eleventh Circuit,

Dated April 19, 1995, 49 F.3d 1516

C1 Coe, Fe iiceeiedinns ea. la

Appendix B - Judgment of the United States

Court of Appeals, Eleventh Circuit,

EURO ATE FHS ee icncenstacicaasenceacitixtivesinsvinsess 5a

\ppendix C - Order of the United States

District Court, Middle District of Florida,

Tampa Division, Dated November 9, 1993........... 7a

Appendix D - Judgment of the United States

District Court, Middle District of Florida,

Tampa Division, Dated November 9, 1993........... 9a

Appendix E - Report and Recommendation of

United States Magistrate Judge Thomas G.

Wilson, United States District Court,

Middle District of Florida, Tampa Division,

Disord Coctetber 15, Fire ceencciisdaettenistassescacssssscns 11a

Appendix F - Order of the Provider Reimbursement

Review Board Dated October 31, 1990................ 18a

Appendix G - Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S.

S57 CT DED oiccccinseccniniecechebsiaasantindadiamaatanetiacadt 1a

Appendix H - Community Hospital of Chandler,

Inc. v. Louis W. Sullivan, M.D., 963 F.2d

PE Ee 60a

BO EL AE, NSTI IED AL SD wR er CM Me Ny i nae ae Aes TT BN a ils

-XXXI-

Appendix I - Episcopal Hospital v. Donna E.

Shalala, 994 F.2d 879 (D.C. Cir. > re 81a

Appendix J - Good Samaritan Hospital, et al., v.

Donna-E. Shalala, Secretary of Health

and Human Services. 113 S.Ct. 2151 (1993)... 94a

Appendix K - Methodist Hospital v. Shalala,

6 F.3d 829 (D.C. Cir. 1993) occ. 125a

Appendix L - Sacred Heart y Sullivan,

958 F.2d 537 (3rd Cir. 1992); 958 F.2d 537

“sircShcpculet ace. | SOO 127a

Appendix M - United States Code. Title 42,

The Public Health and Welfare. §1395ww(a)..... 157a

Appendix N - United States Code. Title 42,

The Public Health and Welfare, §1395ww(b)..... 161a

Appendix O - United States Code. Title 42,

The Public Health and Welfare, §1395ww(d)..... 173a

Appendix P -Code of Federal Regulations,

Title 42, Public Health, tS | ee 176a

Appendix Q - Code of Federal Regulations,

Title 42, Public Health. : 179a

Appendix R - Senate Report No. 23.

98th Congress, Ist Session 1983

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

HILLSBOROUGH COUNTY HospiTAL AUTHORITY, et al..

Petitioners.

-

DONNA E. SHALALA, SECRETARY,

DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh C ircuit

PETITION FOR A WRIT OF CERTIORARI

NANCY A. ROMFH

Counsel of Record

MERSHON, SAWYER. JOHNSTON,

DUNWODY & COLE

Attorneys for Petitioners

Phillips Point - East Tower

777 South Flagler Drive. Suite 900

West Palm Beach, Florida 3340]

(407) 659-5990

esses

th

OPINIONS BELOW

Hillsborough County Hospital Authority, et al. v.

Donna E. Shalala, 49 F.3d 1516 (11th Cir. 1995), was

entered on April 19, 1995, and is reproduced herein as

Appendix A.'! The opinion and order of the District Court

for the Middle District of Florida in Hillsborough County

Hospital Authority, et al. v. Donna E. Shalala, are unreported

and are reproduced herein as Appendices C and D. The

decision of the Provider Reimbursement Review Board is

unreported and is reproduced herein as Appendix E.

STATEMENT OF JURISDICTION

The opinion of the United States Court of Appeals for

the Eleventh Circuit was entered on April 19, 1995, and is

reproduced herein as Appendix A.”

This Court has jurisdiction to issue the requested writ

of certiorari pursuant to 28 U.S.C. §1254(1). Subject matter

jurisdiction in the District Court was pursuant to 42 U.S.C.

§139500(f). The case began as an appeal before the Provider

Reimbursement Review Board which, on its own motion,

ordered expedited judicial review of the matter pursuant to

42 C.F.R. §405.1842.

The Judgment entered by the Eleventh Circuit Court of Appeals

is reproduced herein as Appendix B.

2 Documents in the Appendix are cited as “App.”

—7x_aaQLa

tors

‘

Ww

'

STATUTES AND REGULATIONS

The following statutes and regulations are set forth in

the Appendix to the Petition:

42 U.S.C. §1395ww(a) - Appendix M

42 U.S.C. §1395ww(b) - Appendix N

42 U.S.C. §1395ww(d) - Appendix O

42 C.F.R. §412.71 - Appendix P

42 C.F.R. §412.72 - Appendix Q

STATEMENT OF THE CASE

A. Factual Background

This is an appeal brought by 114 acute care hospitals

(the "Hospitals") who are Medicare providers, and involves

the interpretation of the statutes and regulations that govern

reimbursement of the Hospitals and other health care

providers under the Medicare Act. Under the Medicare Act,

an eligible Medicare beneficiary is entitled to receive certain

inpatient and outpatient services from the Hospitals and other

healthcare providers which participate in the Medicare

Program. A “participating provider" is paid for services

rendered to a beneficiary by the Medicare Program through

the Secretary of the Department of Health and Human

Services (the "Secretary") who is the federal officer

responsible for the administration of the Medicare Program.

42 U.S.C. §1395(g). Asa practical matter, reimbursement to

a participating provider is made through a fiscal

intermediary, as an agent of the Medicare program, who

audits the provider's cost reports and who follows the

regulations promulgated by the Secretary in determining

what claims are allowable as part of the provider's

reimbursement.

The issue in this case arises from amendments to the

Medicare Act in 1982 and 1983 which resuited in confusion

over what provisions controlled the reimbursement of

Medicare providers during the transition period between the

original system of reimbursement and the new system,

during which period reimbursement was determined using a

blend of the two systems. Specifically, the question before

this Court is whether the adjustments for special, unforeseen

circumstances mandated under 42 U.S.C.

§1395ww(b)(4)(A), which were a part of the original system

of reimbursement, are applicable to the calculation of the

hospital-specific portion of a _ hospital's Medicare

reimbursement under 42 U.S.C. §1395ww(d) during the

four-year transition period under Medicare's prospective

payment system. Three courts of appeal, including the court

below, have resolved the issue with inconsistent results,

using different reasoning and basis. The result is confusion

over the state of the law. Specifically, questions of statutory

construction have arisen as well as problems with granting

judicial deference to agency interpretation which has shifted

for no apparent reason except to deny reimbursement to a

multitude of Medicare providers.

B. History of the Statute

Until 1982, the Hospitals and other health care

providers were reimbursed for the reasonable cost of services

actually and necessarily provided to Medicare beneficiaries.

42 U.S.C. §1395x(v). When the Tax Equity and Fiscal

Responsibility Act of 1982 ("TEFRA") was enacted, the

"reasonable cost" reimbursement scheme was altered with the

imposition of a ceiling on the rate of increase of inpatient

operating expenses recoverable by a hospital under the

Medicare Act. The ceiling was calculated using a provider's

"target amount" which, in turn, was defined as follows:

Ble hg ati

aes

(i)...[t]he allowable Operating costs of

inpatient hospital services... recognized under

this subchapter for such hospital for the

preceding twelve-month cost reporting

period...

42 U.S.C. §1395ww(b)(3)(A)(i).

The base year is the 12-month or longer cost reporting

period ending on or after September 30, 1982 and before

September 30, 1983. Despite the ceiling, TEFRA expressly

included a specific exception which allowed a hospital to

adjust its calculated "target amount" to account for events or

circumstances beyond the hospital's control. In pertinent

part, 42 U.S.C. §1395ww(b)(4)(A) (hereinafter "Subsection

(b)(4)(A)") (App. N) states as follows:

The Secretary shall provide for an

exemption from, or an exception and

adjustment to, the method under this

subsection for determining the amount of

payment to a hospital where events

beyond the hospital's control, or

extraordinary circumstances... Create a

distortion in the increase in costs for a cost

reporting period (including any distortion

in the cost of the base period against which

such increase is measured). [emphasis

added]

In 1983, TEFRA was replaced by the Prospective

Payment System ( "PPS"). PPS radically changed the method

of reimbursement for inpatient costs by requiring that the

Hospitals and other health care providers be compensated on

the basis of Prospectively determined national and regional

rates, regardless of actual operating costs. 42 U.S.C.

§1395ww(d) (App. O). Because of the dramatic change in

the way providers would be reimbursed under PPS, Congress

provided a four-year transition period (the "Transition

Period") during which Medicare reimbursement was based on

a blend of the old and new systems. The express reason for

the phase-in period for PPS was to "minimize disruption that

might otherwise occur: because of sudden changes in

reimbursement levels." S.Rep.No. 23, 98th Cong., Ist Sess.

53, reprinted in 1983 U.S. Code Cong. & Admin. News 143,

193. (App. R). A hospital's reimbursement for the Transition

Period was calculated using a formula combining a hospital-

specific component (based on actual allowable costs) of each

hospital's payment rate with the PPS federally prescribed

reimbursement rate. 42 U.S.C. §139S5Sww(d)(1)(A). See also

42 C.F.R. §412.71 and §412.72 (App. P and App. Q). The

hospital-specific portion ("HSP") of a hospital's rate is

defined under PPS for the Transition Period as follows:

[T]he target percentage... of the hospital's

target amount for the cost reporting period

(as defined in subsection (b)(3)(A) of this

subsection)... |

42 U.S.C. §1395ww(d)(1)(A)(i1)(1).

The percentage of each rate to be used to calculate

reimbursement was statutorily prescribed for each of the four

years of the Transition Period, with a gradual increase of

basis in the prospective rate. Therefore, during the four years

there would be both a TEFRA-based element and a PPS-

based element included in every hospital's reimbursement

rate. By the fiscal year ending October 1, 1987, inclusion of

the actual cost rate in calculating reimbursement would be

phased out completely and only the national standardized rate

would remain. 42 U.S.C. §1395ww(d)(1)(c).

rcs etw SsikedLhs Rahat eed AS

a 2

i Indigent Health Care Program Assessment

In 1984, subsequent to the Hospitals’ base year but

prior to the first year for which payments were made under

PPS, the State of Florida imposed the Indigent Health Care

Program ("IHCP") assessment against all Florida hospitals in

order to help fund health care services to indigent persons.

The assessment is a recurring annual assessment calculated at

One percent (1%) of a hospital's annual net Operating revenue

for the fiscal year ending subsequent to May 18, 1984, and

one and one-half percent (14%) for each fiscal year

thereafter. Fla. Stat. §395.101 (1985); see also Fla. Stat.

§409.2662(1) (1985).

Prior to the IHCP, there was no similar assessment or

obligation imposed on Florida hospitals to fund indigent care,

and these assessments have not been imposed throughout the

United States. The IHCP is unique to Florida hospitals.

Because the IHCP assessment was imposed subsequent to the

Hospitals’ base years, the Hospitals' respective target amounts

used in the interim years were calculated without factoring in

the additional cost of the IHCP assessment. Although the

Intermediary determined that the IHCP assessment is an

allowable cost (which, as a result, would have had an impact

on the Petitioners’ base year if it had been in place in 1982),

the Intermediary failed to adjust the Petitioners’ hospital

specific components of their PPS payments to reflect the

increased costs to the Hospitals resulting from the IHCP

assessment.

D. Proceedings Below

This action began as an appeal to the Provider

Reimbursement Review Board (the "PRRB") by 114 Florida

acute care hospitals Participating in the Medicare Program

for a review of the Medicare Intermediary's determination of

the Hospitals’ reimbursement for the first fiscal year under

PPS. By order dated October 31, 1990, the PRRB, on its

own motion, ruled that it did not have the authority to grant

the retroactive adjustment to the Hospitals’ respective

prospective payment rate in order to expedite a judicial

review and the Hospitals filed an action in the United States

District Court for the Middle District of Florida pursuant to

42 U.S.C. §139500(f). On cross motions for summary

judgment, the Middle District adopted the Report and

Recommendation of United States Magistrate Judge

Thomas G. Wilson and entered a judgment in favor of the

Secretary.

An appeal was taken to the United States Court of

Appeals for the Eleventh Circuit on January 7, 1994,

pursuant to Federal Rule of Appellate Procedure 4(a)(1). On

April 19, 1995, the Eleventh Circuit affirmed the judgment

of the Middle District of Florida by its opinion, which noted

conflicts in a prior Circuit Court ruling. [App. A]. This

Court has jurisdiction of this matter pursuant to Rule 10,

Rules of the Supreme Court of the United States.

REASONS FOR GRANTING THE WRIT

A. To Settle a Controversy Among the Circuits Over

a Significant Legal Issue of Continuing

Importance

The Petitioners respectfully submit that the issuance

of a Writ of Certiorari in this case will allow the Court to

settle a conflict among the Third, Ninth, and District of

Columbia Circuits, and now the Eleventh Circuit, on the

statutory construction of a significant provision of the Social

Security Act. The conflicting opinions of the Circuits are

based on different and inconsistent legal theories and have

ee ee ee

«

created confusion in the law. Even while relying on the

Third Circuit in Sacred Heart Medical Center y. Sullivan,

958 F.2d 537 (3rd Cir. 1992) (App. L) and the D.C. Circuit in

Episcopal Hospital et al. y Shalala, 994 F.2d 879 (D.C. Cir.

1993) (App. I), the Eleventh Circuit in this case recognized

the contrary opinion on the issue espoused by the Ninth

Circuit in Community Hospital of Chandler v. Sullivan, 963

F.2d 1206 (9th Cir. 1992) (App. H). The confusion of the

law, as well as the Ongoing litigation in the circuit courts, the

district courts and before the PRRB, will continue unless this

Court resolves the conflict.

The Petitioners acknowledge that this issue was

presented to this Court in the Petition for Certiorari filed in

Episcopal Hospital et al. y Shalala, 994 F.2d 879 (D.C. Cir.

1993), cert. denied. No. 93-429, 62 U.S.L.W. 3468

(January 18, 1994). However. in that case, the Court of

Appeals had found that the Petitioners had failed to qualify as

a special exception of Subsection (b)(4)(A), so a decision by

this Court that Subsection (b)(4)(A) is applicable under PPS

would not have allowed the Petitioners in that case to prevail

anyway. In the instant case, the IHCP assessment was

determined by the Intermediary to Satisfy the accepted

standards for the Subsection (b)(4)(A) adjustment and was

never contested by the Secretary when the matter was before

the PRRB. The Petitioners further acknowledge that this

issue was presented to the Court in a Petition for Certiorari

filed in The Methodist Hospital v. Donna E. Shalala, 6 F.3d

829 (D.C. Cir. 1993), cert. denied, No. 93-1449, 114 Sct

2162 (June 6. 1994). In that case, the District of Columbia

Circuit overturned the decision of the district court Without

opinion, relying on its decision in Episcopal.

-10-

1. Secretary's Interpretation Under the Chevron

Analysis

Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984) (App. G)

provides a two-step process for the review of a challenge to

agency action, such as the Secretary's interpretation of the

Medicare Act. First, a Court must determine if congressional

intent is clear. If so, the analysis is complete and the

Secretary must follow the plain meaning of the statute. 467

U.S. at 842. If congressional intent is not clear, a Court must

go to the second step and determine if the Secretary's

interpretation of the statute is reasonable. If the

interpretation is determined to be reasonable, deference

should be given to the Secretary. However, as this Court

cautioned in Board of Governors of the Fed. Reserve Sys. v.

Dimension Fin. Corp., 474 U.S. 361, 368 (1986), "[t]he

traditional deference Courts pay to Agency interpretation is

not to be applied to alter the clearly expressed intent of

Congress.”

a [he Error in the Secretary's Interpretation of

Subsection (b)(4)(A).

The position the Secretary has taken in this

and other cases is that the "special circumstances" exception

of Subsection (b)(4)(A) is not applicable to the calculation of

the Hospitals’ HSP during the Transition Period. This

argument is based on the premise that (b)(4)(A) was not

expressly incorporated by the language of (b)(3)(A). The

Secretary's premise ignores the fact that (b)(3)(A) does not

expressly include any subsections, while it does exclude

TEFRA provision 42 U.S.C. §1395ww(a). It does not

exclude (b)(4)(A). The doctrine of "expressio unius est

exclusio alterius" clearly applies in that not being expressly

excluded, (b)(4)(A) is included. See also Andrus v. Glover

ait

€

x

a

1]

3

4

Ta tPA o EO ie AEA Ete i Shek ee

binant naar.

ott.

Construction Company, 446 U.S. 608, 617 (1980) ("[w]here

Congress explicitly enumerates certain exceptions to a

general prohibition, additional exceptions are not to be

implied in the absence of a contrary legislative intent.").

The Secretary has further argued that

Subsection ( b)(4)(A) does not apply under PPS because the

PPS statute contains its own Provision for adjustments and

exceptions in Subsection (d)( 5), and therefore the provisions

in Subsection (b)(4)(A) are at odds with Subsection (d)(5)

because Subsection (d)(S) does not repeat (b)(4)(A)'s

directive to the Secretary to make adjustments to

reimbursement amounts under extraordinary circumstances.

The fact that Subsection (d)(5) does not repeat Subsection

(b)(4)(A) provides evidence of the congressional intent that

Subsection (b)(4)(A) was to be applicable under PPS.

Subsection (d)(5)(I) provides for exceptions to

"payment amounts," whereas Subsection (b)(4)(A) provides

for exceptions to "such method," referring to the method for

determining the HSP of the PPS rate in the first instance.

Congress was no doubt aware that Subsection (b)(4)(A)

adjustments were one method of ultimately affecting how

much a hospital would be paid. It would have been

redundant to repeat this Provision in Subsection (d)(5).

Rather, Congress simply added a number of other exceptions

and adjustments in Subsections (b)( 5)(A)-(I), each of which

covered something other than a cost due to extraordinary

circumstances beyond the hospitals’ control. The additional

exceptions and adjustments in Subsection (d)(5) are a list of

Situations where Congress felt there should be a Change in

payment without modifying the underlying and basic

determination of the methodology to be used as a Starting

point for determining the payment amount for all hospitals.

Therefore, Petitioners submit that Subsections (b)(4)(A) and

(d)(S) should be read in harmony, complementary, giving

effect to each part of the statute in furtherance of a

congressional purpose to provide for exceptions both as to

methodology as well as to more esoteric payment

determinations not predicated on the notion of allowable

costs. See Florida & American Medical Association, Inc. v

Department of Health, Education and Welfare, 479 F. Supp.

1291. ("Courts have a duty to interpret a statute so that all

provisions can be reconciled into a harmonious whole.

without internal conflict or repugnancy if possible.").

VG

“ ,

3. Chandler

In Community Hospital of Chandler v. Sullivan, 963

F.2d 1206 (9th Cir. 1992), the Ninth Circuit addressed the

issue of whether the special exception found in 42 U.S.C.

§1395ww(b)(4)(A) is applicable to PPS during the Transition

Period. The Court in that case concluded that the TEFRA

adjustments under subparagraph (b)(4)(A) are applicable to

PPS, utilizing the first prong of the analysis of Chevron

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984). In its opinion, the Chandler Court

specifically recognized the contrary ruling in Sacred Heart

Med. Ctr. v. Sullivan, 958 F.2d 537 (3rd Cir. 1992), and

expressly rejected the Third Circuit's reasoning in that case.

The Court in Chandler noted that under PPS, the starting

point for all covered hospitals, was the HSP which in turn

required a determination of the hospital's base year costs.

However, Subsection (b)(4)(A) was intended to provide the

mechanism whereby an aberration or distortion in the base

year costs due to extraordinary circumstances would warrant

an adjustment to the target amount. There is no other

mechanism in the statute to accomplish this result. The

Ninth Circuit in Chandler thus concluded that Congress

intended Subsection (b)(4)(A) to be read in conjunction with

Subsection (b)(3)(A) and noted as follows:

a

ck.

[W]e have noted before, "although the

PPS is basically embodied within 42

U.S.C. §1395ww(d)... there is clear

interface between § 1395ww subsections

(b) and (d)." Sunshine Health, 809 F.2d at

1398. In Sunshine Health, we rejected the

Secretary's argument that Congress did not

intend to incorporate § 1395ww(b)(5). Id.

The Secretary has conceded that PPS target

amount calculations were based in part on

§ 1395ww(b)(3)(A). Thus in light of the

fact that § 1395ww(d) "by its own terms

incorporates one of the main concepts of

subsection (b)," we found it illogical to

exclude from PPS other subsections of

§ 1395ww(b). Id. That reasoning applies

with equal force here: It would be equally

illogical to exclude § 1395ww(b)(4).

963 F.2d at 1214, n.4. It is worth noting that the Secretary

did not petition for certiorari from the Ninth Circuit opinion

in Chandler.

4. Sacred Heart and Episcopal

The Third and D.C. Circuits. also relying on

Chevron's ‘first Step analysis, have held that the plain

language of the statute evidences clear congressional intent

that the TEFRA special exception provision is not applicable

to the calculation of the HSP under PPS. The Third Circuit

in Sacred Heart Medical Center v. Sullivan, rejected the

district court's finding that while the TEFRA component was

still a part of computing reimbursement during the transition

period, it was only reasonable that the corresponding

Provision which gave TEFRA flexibility should apply.

Utilizing a first step Chevron analysis, the Third Circuit

Y=

further found that deference should be given to the

Secretary's "reasonable" interpretation of the statute under a

second step analysis of Chevron. 958 F.2d 537, 548 (3rd

Cir. 1992).

In Episcopal Hospitals v. Shalala, the D.C.

Circuit also deferred to the Secretary's interpretation of the

statute, but without defining the Secretary's interpretation.

994 F.2d 879 (D.C. Cir. 1993). Furthermore, the issue in this

case was not an issue in the Episcopal case at the district

court level. In those proceedings, the parties assumed that

the TEFRA adjustments applied in the calculation of the

HSP. The question was one of whether the adjustment

sought was one which fell under the (b)(4)(A) exception.

Not having been an issue at the district court level, a

complete legislative and regulatory record was _ not

established on the issue of whether Subsection (b)(4)(A) was

applicable under PPS during the transition years. It is also

significant to note that the Court in Episcopal does not

acknowledge the existence of the Chandler case nor does it

reference the Sacred Heart case.

Petitioners submit that the Third and D.C.

Circuits erred in ignoring legislative history and

congressional intent, and in allowing the Secretary to depart

from its prior position without a true "reasoned justification."

The deference accorded by the Third Circuit to the

Secretary's interpretation is misplaced and inappropriate

where the interpretation is inconsistent with prior

interpretations and positions taken by the Secretary, and

there is no rational reason for the change.

5. District Court Decisi

Until the instant case, every federal district

court decision involving this issue has held that the

oie;

legislative history of the statute Clearly demonstrates

congressional intent to incorporate the TEFRA special

exception adjustment into PPS during the Transition Period.

All of the courts based their conclusion on the clear language

of the statute (first prong of the Chevron case), obviating the

need to make an inquiry into the reasonableness of the

Secretary's interpretation. The decision by the district court

in this case is forced to depart from the prior decisions

because of the Sacred Heart and Episcopal cases.

6 “Ggeemiaeaiemece

The question presented to the Court in this

Case is one of continuing importance. Not only are 114

hospitals affected by the Court's decision in this case, but

there are five cases involving this issue currently pending

before the United States District Court for the District of

Columbia Circuit. In addition, there are an unknown

number of cases pending before the PRRB 5

3 Redbud Hospital District v. Heckler, Medicare and Medicaid

Guide (CCH) 934,085 (N.D. Cal. July 30, 1984), vacated on other

grounds, 473 U.S. 1308 (1985): Greenville Hospital System v. Heckler,

642 F. Supp. 15 (D.S.C. 1985), after remand. Medicare and Medicaid

Guide (CCH) 935,880 (D.S.C. 1986); Newport Hospital and Clinic, Inc.

v. Sullivan, Medicare and Medicaid Guide (CCH) 938,844 (D.D.C. Sept.

24, 1990), Secretary's appeal voluntarily withdrawn (199| ); The

Methodist Hospital v. Sullivan, Medicare and Medicaid Guide (CCH)

139,627 (D.D.C. September 20, 1991), reversed, 6 F.3d 829 (D.C. Cir.

Sept. 16, 1993) adopting Episcopal, 994 F 2d 879 (D.C. Cir. 1993), cert.

denied, No. 93-1449, 114 S.Ct. 2162 (June 6, 1994): Sacred Heart

Medical Center v. Sullivan. 199} U.S. Dist. Lexis 9535 (E.D.‘ Pa. 1991),

reversed, 958 F.2d 537 (3rd Cir. 1992).

‘ Nyack Hospital v. Sullivan, No. 92-0455; Okeechobee Hospital

v. Sullivan, No. 92-1323; HCA Services of Texas v. Sullivan, No.

92-1324; Hospital Corporation of Tennessee v. Sullivan, No. 92-1325;

and General Care Corp. v. Sullivan, No. 92-1326. In addition, there is

- 16-

B. To Prevent the Propagation of Mistakes and to

Clarify the Appropriate Standard of Deference to

be Given Agency Interpretations

Standards of deference to agency interpretations of

Statutes were established in the Chevron case and in Good

Samaritan Hospital v. Shalala, 113 $.Ct. 2151 (1993).

Petitioners submit that the Third and District of Columbia

Circuits have improperly expanded the standards set forth in

Chevron and Good Samaritan by affording deference to the

Secretary's interpretation of Subsection (b)(4)(A) in the

Sacred Heart and Episcopal cases. The District Court and

the Eleventh Circuit decisions rendered in this case

demonstrate that the errors made by the District of Columbia

Circuit in Episcopal and by the Third Circuit in Sacred Heart

are now being propagated.

As stated above, the Chevron case provides a two-

step analysis for the review of statutory construction. The

first step is a determination of whether the intent of Congress

is clear, in which case the clear language of the statute

should be followed. If congressional intent is not clear,

deference will be given to a reasonable interpretation made

by a government agency. The Good Samaritan case clarified

the two-step process by noting the following:

On the other hand, the consistency of an

agency's position is a factor in assessing

one case pending in the Southern District of New York, Good Samaritan

Hospital Regional Medical Center v. Shalala, No. 92-8726.

5 The PRRB has no mechanism for determining the

number of cases before it involving this issue, although we understand

from counsel involved in cases cited herein, that they represent hospitals

pending PRRB appeals on this issue.

pc tc I a inane

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Hah Bh NAMEN a IFO RON Ey MRA EH Seba lia Hd Rie

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the weight that position is due. As we

have stated, "[a]n agency interpretation of

a relevant provision which conflicts with

the agency's earlier interpretation is

‘entitled to considerably less deference’

than a consistently held view." .. How

much weight should be given to the

agency's views in such a situation. and in

particular where its shifts might have

resulted from intervening in possibly

erroneous judicial decisions and its current

position from one of our own rulings will

depend on the facts of individual Cases.

The acknowledgment that blind deference to an agency's

interpretation of a statute would be inappropriate is important

in this case where the Secretary has taken a position in

litigation which is contrary to certain official actions taken

with respect to the same TEFRA adjustments.

l. Legislative History.

When TEFRA was enacted, _the

Congressional Conference Committee Report reflected

Congress’ intent to maintain fairness in the administration of

the Medicare Program and stated as follows:

The Secretary of HHS would be required

to provide for appropriate exemptions,

exceptions and adjustments as in the

Senate provision. The Conference notes

that adjustments could have the effect of

either increasing or decreasing the target

amount payment amounts. The principal

intention in authorizing such adjustments

is to take into account factors that would

« 18 -

distort either base period, or operative cost

increase in any of the three years to which

the provisions are applicable. Examples of

such factors include... extraordinary

circumstances beyond the hospital's

control...

H.R. Rep. No. 760, 97th Congress, 2d Sess. 420.

When the Secretary adopted _ regulations

implementing PPS, she acknowledged the congressional

mandate and stated in the preamble to the final PPS

regulations:

We believe that Congress intended to

assure, by giving us broad authority under

the law to provide for exceptions,

exclusions and adjustments, that some

hospitals are not advantaged’ or

disadvantaged by unique circumstances in

their base year that do not reflect their

usual cost of operation per case. This

intent is indicated in §1886(b)(4)(A)

[Subsection (b)(4)(A)] of the Act.

49 Fed. Reg. at 261 (January 3, 1984).

7 The 's Changing Positi

Hundreds of Medicare providers, including

the Petitioners, relied upon the Secretary's assurance that the

TEFRA adjustments would be available to calculate the

HSP.

Subsequent to the Secretary's statement in the

Federal Register, the Secretary granted TEFRA adjustments

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«its

under Subsection (b)(4)(A) to certain hospitals for PPS

purposes, one hospital being Greenville Hospital. Greenville

Hospital Systems v. Heckler. 642 F. Supp. 15 (D.S.C. 1985)

(concerning jurisdiction), after remand, Medicare and

Medicaid Guide (CCH) 135,880 (D.S.C. 1986) (granting

retrospective relief for an HSP adjusted by the Secretary

under Subsection (b)(4)(A)). In addition, the Secretary

conceded in another case in California that Subsection

(b)(4)(A) was to be incorporated in determining the target

amount used in calculating PPS rates during the transition

period. Redbud Hospital District vy. Heckler, Medicare &

Medicaid Guide 134,085 (N.D. California 1984).

The Secretary's Position in Sacred Heart and

Episcopal is contrary to its initial "official" position and is a

post hoc rationalization which should be accorded little or no

deference at all. Motor Vehicles Manufacturers Association

v. State Farm Mutual Automobile Insurance Company, 463

U.S. 29 (1983). The Secretary's change in Position does not

mirror the change allowed in Good Samaritan where the

agency was found to have adopted a mistaken interpretation

of a statute because of an erroneous Court decision. The

Secretary has never made that claim with respect to this

issue, and has merely changed her position Claiming that her

prior interpretation was incorrect. Therefore, the deference

afforded to the Secretary in the Episcopal and Sacred Heart

cases was clearly incorrect and inconsistent with the

standards set forth by this Court in the Chevron and Good

Samaritan cases. The District Court in the instant case, and

the Eleventh Circuit's affirmance of that decision, is another

example of the flawed reasoning which is inconsiStent with

the Chevron and Good Samaritan standards, in ignoring the

statement made by the Court in Good Samaritan that a lower

level of deference should be accorded to changing

interpretations.

Petitioners submit that this case would allow this

Court the opportunity to clarify its position with respect to

the proper judicial deference to be accorded to a new position

taken by an agency based on its own conclusion that its

initial interpretation was incorrect.

CONCLUSION

Petitioners respectfully request the Court grant this

Petition and issue a writ of certiorari to the United States

Court of Appeals for the Eleventh Circuit. The granting of

the Petitioners’ request will allow this Court to address the

inconsistency and discrepancy in the law on this critical issue

which affects hundreds of Medicare providers.

Respectfully Submitted,

NANCY A. ROMFH

MERSHON, SAWYER,

JOHNSTON, DUNWODY &

COLE

Attorneys for Petitioners

Phillips Point - East Tower

777 South Flagler Drive, Suite 900

West Palm Beach, Florida 33401

(407) 659-5990

|

|

la

APPENDIX A --- OPINION OF THE UNITED STATES

COURT OF APPEALS, ELEVENTH CIRCUIT,

DATED APRIL 19, 1995

HILLSBOROUGH COUNTY HOSPITAL

AUTHORITY, d/b/a Tampa General Hospital, et al.

Plaintiffs-A ppellants.

v.

DONNA E. SHALALA. Secretary,

United States Department of

Health and Human Services.

Defendant-Appellee.

No. 94-2050

April 19, 1995

cd * *

James M. McCann, Jr. Mershon, Sawyer, Johnston.

Dunwody & Cole, West Palm Beach, FL, for plaintiff.

Lana Smith Sensenig, Department of Health and

Human Services, Atlanta. GA, for defendant.

Acute care hospitals sought judicial review of

determination by Secretary of Health and Human Services

that hospitals were not entitled to adjustment in their

Medicare _ reimbursements based on extraordinary

circumstances. The United States District Court for the

2a

Middle District of Florida, No. 91-12-CIV-T-21(B),

Ralph W. Nimmons, Jr., J., upheld Secretary's determination.

Hospitals appealed. The Court of Appeals held that

Medicare's Prospective Payment System (PPS) for

reimbursement of health care providers does not incorporate

prior provision of the Tax Equity and Fiscal Responsibility

Act (TEFRA) which permitted adjustment of reimbursement

rates for extraordinary circumstances.

Affirmed.

Social Security and Public Welfare - Key No. 241.10

Medicare's Prospective Payment System (PPS) for

reimbursement of health care providers does not incorporate

prior provision of the Tax Equity and Fiscal Responsibility

Act (TEFRA) directing the Secretary of Health and Human

Services to adjust reimbursement amounts’ where

"extraordinary circumstances" create a distortion in the

increase in costs for a cost reporting period; the PPS contains

its own provision endowing Secretary with authority to

create exceptions to amount of reimbursement that would

otherwise be afforded under the PPS. Social Security Act,

§1886(b)(4)(A), (d), as amended, 42 #£4US.C.A.

§1395ww(b)(4)(A), (d).

Appeal from the United States District Court for the

Middle District of Florida.

Before DUBINA, Circuit Judge, RONEY and

ESCHBACH*, Senior Circuit Judges.

Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for the

Seventh Circuit, sitting by designation.

PER CURIAM:

Plaintiffs, approximately 114 acute care hospitals

("the Hospitals") belonging to the Florida Hospital

Association, appeal the district court's grant of summary

judgment in favor of the Secretary of Health and Human

Services ("the Secretary") denying the Hospitals' claim that

they were entitled to an adjustment in their Medicare

reimbursements based on the "extraordinary circumstances"

exception of 42 U.S.C. §1395ww(b)(4)(A). Specifically, the

district court upheld the Secretary's determination that

§1395ww(b)(4)(A) was not incorporated into 42 U.S.C.

§1395ww(d), Medicare's Prospective Payment System

(PPS). We affirm.

This particular issue of Statutory interpretation has

already been addressed by three of our sister circuits. Both

the D.C. Circuit and the Third Circuit have held that the

Secretary could reasonably conclude that Congress did not

incorporate the “extraordinary circumstances" exception of

§1395ww(b)(4)(A) into the PPS. Episcopal Hospital y.

Shalala, 994 F.2d 879. 884 (D.C. Cir. 1993), cert. denied

US. ___, 114 S.Ct. 876, 127 L.Ed.2d 73 (1994):

Sacred Heart Medical Center y Sullivan, 958 F.2d 537, 550

(3rd Cir. 1992). In examining the plain language of the PPS

Statute, these courts point out that §1395ww(d)(1) makes no

reference to §1395ww(b)(4)(A), even though it expressly

refers to §1395ww(b)(3)(A), and, furthermore, the PPS

contains its own list of exceptions in §139Sww(d)(5),

eliminating any need to incorporate §1395ww(b)(4)(A)'s

exception. See Episcopal, 994 F.2d at 883; Sacred Heart,

958 F.2d at 545. The Sacred Heart court also notes that the

legislative history supports the Secretary's determination that

Congress did not intend to incorporate §1395ww(b)(4)(A)

into the PPS. /d., 958 F.2d at 547. Although the Ninth

4a

Circuit has expressed a contrary view on this issue, see

Community Hospital of Chandler v. Sullivan, 963 F.2d 1206,

1214 n. 4 (9th Cir. 1992), we nonetheless find the reasoning

of the D.C. and Third Circuits persuasive. We therefore

AFFIRM the judgment of the district court.

Sa

APPENDIX B --- JUDGMENT OF THE UNITED

STATES COURT OF APPEALS, ELEVENTH

CIRCUIT, DATED APRIL 19, 1995

HILLSBOROUGH COUNTY HOSPITAL

AUTHORITY, d/b/a Tampa General Hospital, et al.

Plaintiffs-Appellants.

v.

DONNA E. SHALALA,

Defendant-Appellee.

No. 94-2050

D.C. Docket No. 91-12-CIV-T-21(B)

April 19, 1995

* * *

James M. McCann. Jr., Mershon, Sawyer, Johnston.

Dunwody & Cole, West Palm Beach, FL, for plaintiff.

Lana Smith Sensenig, Department of Health and

Human Services, Atlanta, GA, for defendant.

Appeal from the United States District Court -

for the Middle District of F lorida

6a

Before DUBINA, Circuit Judge, RONEY and

ESCHBACH*, Senior Circuit Judges.

JUDGMENT

This cause came to be heard on the transcript of the

record from the United States District Court for the Middle

District of Florida, and was argued by counsel;

UPON CONSIDERATION WHEREOF, it is now

hereby ordered and adjudged by this Court that the judgment

of the said District Court in this cause be and the same is

hereby AFFIRMED:

It is further ordered that plaintiffs-appellants pay

defendant-appellee the costs on appeal to be taxed by the

Clerk of this Court.

Entered: April 19, 1995

For the Court: Miguel J. Cortez, Clerk

By:__/s/ Matt Davidson

Deputy Clerk

ISSUED AS MANDATE: 6/19/95

Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for the

Seventh Circuit, sitting by designation.

7a

APPENDIX C --- ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE DISTRICT

OF FLORIDA, TAMPA DIVISION, DATED

NOVEMBER 9, 1993.

HILLSBOROUGH COUNTY HOSPITAL

AUTHORITY, d/b/a TAMPA GENERAL

HOSPITAL, et al.,

Plaintiffs,

¥.

DONNA E. SHALALA. Secretary,

Department of Health and Human Services.

Defendant.

Case No. 91-12-Civ-T-21B

United States District Court

Middle District of Florida

Tampa Division

November 9, 1993

*x * *

James M. McCann, Jr., Mershon, Sawyer, Johnston,

Dunwody & Cole, West Palm Beach, FL. for plaintiff.

Lana Smith Sensenig, Department of Health and

Human Services, Atlanta, GA, for defendant.

8a

ORDER

This cause came on for consideration of the parties’

cross-motions for summary judgment (Dkts. 17 and 26).

Pursuant to the Court's Order of referral (Dkt. 35), this matter

was considered by the Magistrate Judge, who has filed his

report recommending that summary judgment be granted to

the defendant.

Upon consideration of the Report and

Recommendation (Dkt. 42) of the Magistrate Judge, no

objection thereto having been filed, and upon the Court's

independent examination of the motions and the file, the

Court finds that the Report and Recommendation should be

and is hereby adopted and confirmed and made a part

hereof. Accordingly, it is

ORDERED AND ADJUDGED that the plaintiffs’

motion for summary judgment (Dkt. 17) is DENIED and the

defendant's motion for summary judgment (Dkt. 26) is

GRANTED. The Clerk is directed to enter judgment on

behalf of the defendant and against the plaintiffs.

DONE AND ORDERED, at Tampa, Florida, this

9th day of November, 1993.

/s/

RALPH W. NIMMONS, JR.

United States District Judge

Copies to: Counsel of record

9a

APPENDIX D --- JUDGMENT OF THE UNITED

STATES DISTRICT COURT FOR THE MIDDLE

DISTRICT OF FLORIDA, DATED

NOVEMBER 9, 1993

HILLSBOROUGH COUNTY HOSPITAL

AUTHORITY, d/b/a TAMPA GENERAL

HOSPITAL, et al.,

V.

DONNA E. SHALALA. Secretary,

Department of Health and Human Services.

Case No. 91-12-Civ-T-21B

United States District Court

Middle District of Florida

November 9, 1993

* * *

James M. McCann, Jr.. Mershon, Sawyer, Johnston.

Dunwody & Cole, West Palm Beach, FL, for plaintiff.

Lana Smith Sensenig, Department of Health and

Human Services, Atlanta, GA, for defendant.

JUDGMENT IN A CIVIL CASE

IT IS ORDERED AND ADJUDGED that plaintiffs’

motion for summary judgment is DENIED and the

defendant's motion for summary judgment is GRANTED

10a

and judgment is entered on behalf of the defendant and

against the plaintiffs.

Nov 9 1993 /s/_ David L. Edwards

Date Clerk

Deputy Clerk

APPENDIX E --- REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

THOMAS G. WILSON, UNITED STATES DISTRICT

COURT, MIDDLE DISTRICT OF FLORIDA, TAMPA

DIVISION, DATED OCTOBER 13, 1993

HILLSBOROUGH COUNTY HOSPITAL

AUTHORITY, ET AL..

Plaintiffs,

v.

DONNA E. SHALALA. Secretary,

United States Department of

Health and Human Services.

Defendant.

CASE No. 91-12-CIV-T-21(B)

October 13, 1993

* ss *

James M. McCann, Jr., Mershon. Sawyer, Johnston,

Dunwody & Cole, West Palm Beach, FL. for plaintiff.

Lana Smith Sensenig, Department of Health and

Human Services, Atlanta, GA, for defendant.

12a

REPORT AND RECOMMENDATION

This cause came on for a report and recommendation

upon the parties’ cross motions for summary judgment

(Docs. 17 and 26).* At the hearing on the motions, both

sides acknowledged that there were no factual disputes that

would preclude entry of summary judgment. For the reasons

stated below, I recommend that summary judgment be

granted in favor of the defendant Secretary of Health and

Human Services.

This matter concerns the interpretation of statutes that

govern reimbursement of hospitals and other health care

providers under the Social Security Act. The Social Security

Act was amended several times during the 1980's with the

result that, in the circumstances presented here, the

relationship between the amendments left the controlling law

unclear. Accordingly, it is appropriate to outline those

various amendments in order to explain the dispute in this

case.

Until 1982, hospitals and other health care providers

were reimbursed for the costs of services actually and

necessarily provided to Medicare beneficiaries under the

Social Security Act. 42 U.S.C. 1395x(v). In 1982, however,

Congress enacted the Tax Equity and Fiscal Responsibility

Act of 1982 ("TEFRA"), which altered the "reasonable cost"

reimbursement scheme by imposing a ceiling on the rate of

increase of inpatient operating expenses recoverable under

This matter was specifically referred to the undersigned by the

Honorable Ralph W. Nimmons, Jr., United States District Judge

(Doc. 35).

ae

13a

the Social Security Act. This rate-of-increase ceiling was

calculated using a hospital's "target amount," a statutorily

defined amount which, in turn, was based on the hospital's

actual operating costs for a particular twelve-month cost

reporting _ period. 42 U.S.C. 1395ww(b)(3)(A).

Significantly, the TEFRA plan included a specific exception

permitting hospitals to adjust their calculated "target

amount" to account for "events beyond the hospital's control

or extraordinary circumstances" which rendered the "base

year" operating-cost estimate inaccurate. 42 U.S.C.

1395ww(b)(4)(A).

In 1983, however, Congress replaced the TEFRA

reimbursement scheme with the Prospective Payment System

("PPS") that is currently in effect today. This reform of the

Medicare Program substantially changed the method of

reimbursement for inpatient costs, since it requires that

hospitals and other health care providers be compensated on

the basis of prospectively determined national and regional

rates, rather than actual operating costs. Because the PPS

represented such a dramatic change in the calculation of

inpatient cost reimbursement, Congress provided a four (4)

year transition period to enable hospitals and other health

care providers to adjust their operating procedures. During

this interim period, Medicare reimbursement for inpatient

hospital services was based upon statutorily prescribed

percentages of both the hospital's actual costs and the PPS's

federally prescribed reimbursement rate. The dispute in this

case involves the method of computation of a hospital's

"target amount" that is used in this interim period. 42 U.S.C.

1395ww(b)(3)(A). :

The plaintiffs, approximately 114 acute care hospitals

in the State of Florida, each seek to amend the imputed

operating costs used in the calculation of their respective

"target amounts" to reflect the increase in Operating costs

l4a

precipitated by the Indigent Health Care Program ("IHCP")

assessment imposed in 1984 by the State of Florida. The

plaintiffs argue that each hospital's "target amount" under 42

U.S.C. 1395ww(b)(3)(A) was calculated without respect to

these IHCP assessments, and that 42 U.S.C.

1395ww(b)(4)(A), which permits an adjustment for

"extraordinary circumstances," entitles them to include the

IHCP assessments into the calculation (Doc. 39). Such an

adjustment would permit the plaintiff hospitals to increase

their §1395ww(b)(3)(A) “target amount," which would in

turn result in a greater recovery during the interim period.

The Secretary, in contrast, contends that §1395ww(b)(4)(A),

which is a remnant from TEFRA, has no application to the

calculation of the "target amount" during the interim period.

II.

The PPS. provisions refer in 42 U.S.C.

1395ww(d)(1)(A) to §1395ww(b)(3)(A) for the definition of

a hospital's "target amount," the amount used in calculating a

hospital's operating costs for a twelve-month cost reporting

period. Because §1395ww(b)(3)(A) was an operative

provision under the prior TEFRA reimbursement scheme, the

plaintiffs argue that the interim scheme also must have

incorporated from TEFRA §1395ww(b)(4)(A), which

authorized adjustments to the "target amount" for

extraordinary circumstances.

The plaintiffs’ argument, however, is not supported

by the language of the PPS provisions. Those provisions,

importantly, make absolutely no_ reference to

§1395ww(b)(4)(A). Moreover, §1395ww(b)(3)(A), which

the PPS expressly incorporates, enumerates only

subparagraphs C, D, and E as exceptions from the (b)(3)(A)

definition of a hospital's "target amount.” In other words,

15a

neither the PPS provisions, nor the statutorily incorporated

definition of "target amount" adopts the §1395ww(b)(4)(A)

“extraordinary circumstances" exception.

Furthermore, the statutory scheme indicates that

Congress did not intend to incorporate §1395ww/(b)(4)(A)

into the PPS. Thus, the adoption of §1395ww(b)(3)(A)'s

definition of "target amount" shows that Congress considered

the incorporation of TEFRA provisions and apparently

elected not to incorporate §1395ww(b)(4)(A). This

conclusion is strengthened by the fact that the PPS itself

contains its own list of exceptions and adjustments. 42

U.S.C. 1395ww(d)(5)(A-I).

For these reasons, the Secretary's position that the

PPS does not include §1395ww(b)(4)(A) is clearly the better

reading of the statutory scheme. The issue, however, is not

whether the Secretary's construction of the statute is the

preferred interpretation, but simply whether it is a reasonable

one. In Good Samaritan Hospital v. Shalala, > Qa

61 U.S.L.W. 4554, 4557 (1993), the Supreme Court recently

reiterated that, in the case of a statutory ambiguity, the courts

will generally defer to a permissible interpretation espoused

by the agency entrusted with the statute's implementation.

The deference afforded the Secretary's interpretation

is not lost because the Secretary previously had a different

view of the relationship between §1395ww(b)(3)(A) and

§1395ww(b)(4)(A). As the Supreme Court observed in

Good Samaritan Hospital, "the Secretary is not estopped

from changing a view she believes to have been grounded

upon a mistaken legal interpretation." Id. at 4558. Here.

counsel for the Secretary noted during the hearing that the

Secretary's initial confusion regarding the interaction

between these two provisions is at least partly attributable to

the difficulties associated with the dramatic change in

l6a

approach in the statutory schemes. It was undoubtedly also

partly attributable to the prolixity and obfuscation for which

Social Security statutes are legendary.

As previously indicated, the Secretary's conclusion

that §1395ww(b)(4)(A) is not a part of the interim

reimbursement scheme is the better interpretation of the

pertinent statutory provisions. In all events, her reading of

those provisions is certainly at least as plausible as the

plaintiffs’ construction. Id. at 4558-4559. Accordingly, her

interpretation should be accepted.

IIT.

Three courts of appeals have recently addressed this

particular issue of statutory construction. The courts of

appeals for both the Third Circuit and the District of

Columbia Circuit have considered whether

§1395ww(b)(4)(A) should be imported into the calculation of

a hospital's "target amount” under §1395ww(b)(3)(A). After

full analysis, each of those Circuits concluded that it should

not. Sacred Heart Medical Center v. Sullivan, 958 F.2d 537

(3d Cir. 1992); Episcopal Hospital v. Shalala, __ F.2d __

[Nos. 92-5033 and 92-5034, D.C. Cir. June 18, 1993]

(Doc. 39, Ex.).

The Ninth Circuit Court of Appeals in Community

Hospital of Chandler v. Sullivan, 963 F.2d 1206 (9th Cir.

1992), indicated a contrary conclusion. That decision,

however, failed to address certain critical points. For

example, the Ninth Circuit failed to explain why the

Secretary's statutory interpretation should not be accorded

deference. In addition, the Court did not consider the impact

of the PPS's own exceptions and adjustments in

§1395ww(d)(5). As a result, the Ninth Circuit's decision is

not sufficiently persuasive to warrant disregarding the well

17a

reasoned opinions of both the Third Circuit and the District

of Columbia Circuit.

IV.

For all of the foregoing reasons, I recommend that

summary judgment be granted in favor of the Secretary.

Respectfully submitted,

/s/

THOMAS G. WILSON

United States Magistrate Judge

NOTICE TO PARTIES

Failure to file written objections to the proposed

findings and recommendations contained in_ this report

within ten days from the date of its service shall bar an

aggrieved party from attacking the factual findings on

appeal. 28 U.S.C. 636(b)(1).

18a

APPENDIX F --- ORDER OF THE PROVIDER

REIMBURSEMENT REVIEW BOARD

DATED OCTOBER 31, 1990

Case No.: TM:86-1539G

90-D61

CERTIFIED MAIL

Joanne Erde, Esq.

Mershon, Sawyer, Johnston, Dunwody & Cole

Southeast Financial Center

200 S. Biscayne Blvd., Suite 4500

Dear Ms. Erde:

RE: Florida Hospital Specific Rate Group Appeal,

Provider Nos. - Various, Case No. 86-1539G,

90-D61, FYE - First PPS year, Board's Own Motion

Determination That It Lacks Authority To Decide

Whether the PPS Hospital Specific Rate (HSR)

Should Be Adjusted to Reflect a Factor for the

Indigent Care Tax Assessment

This is in response to the Provider's request for appeal of the

Indigent Care Tax Assessment issue in the above-captioned

case. Pursuant to 42 CFR 405.1842, the Board, on its Own

Motion, has decided to grant expedited judicial review on the

issue of whether the PPS Hospital Specific Rate (HSR) in the

first PPS year should be adjusted to reflect a factor for the

Indigent Care Tax Assessment, pursuant to 42 CFR 412.70 et

seq. The above-cited regulatory provision permits a

provider, which has requested and is entitled to a hearing

before the Board, under 42 USC 1395o00(a), to bypass the

Board's hearing procedure and obtain judicial review of an

19a

issue involving a question of law or regulation where the

Board determines that it is without authority to decide such

question.

The Board has reviewed the Providers' submissions

pertaining to the requests for hearing. The documentation

shows thai the estimated amount in controversy exceeds

$50,000.

The Board finds:

: That the Board has jurisdiction of the matter

for the subject year and that the Providers are

entitled to a hearing before the Board;

That there are no findings of fact for

resolution before the Board;

That the Board is bound by the applicable

existing Medicare law and regulations (42

CFR 405.1867); and

That the Board is without authority to decide

the legal question of whether the PPS

Hospital Specific Rate in the first PPS year

should be adjusted to reflect a factor for the

Indigent Care Tax Assessment, pursuant to 42

CFR 412.70 et seq.

Accordingly, the Board finds that this case properly falls

within the provisions of 42 USC 1395o00(f)(1) and “hereby

grants expedited judicial review on its Own Motion for the

Hospital Specific Rate issue for the subject year. The

Provider has 60 days from the receipt of this decision to

institute the appropriate action for judicial review.

20a

aan niki

Arthur P. Owens

Keith E. Braganza

Sally A. Kirkpatrick

Joseph F. Sloan

/s/

Joseph F. Sloan

Board Member

Enclosures

Section 1878(f)(1) of the Social Security Act, as amended

ec: Elaine C. Powell, Blue Cross of Florida

Terry Hamaker, Mutual of Omaha

William Braggs, BCBSA

Abin Yeas © Abit ok ert

2la

APPENDIX G

CHEVRON, U.S.A., INC., Petitioner,

V.

NATURAL RESOURCES DEFENSE

COUNCIL, INC.., et al.

AMERICAN IRON AND STEEL INSTITUTE, et al..

Petitioners,

V.

NATURAL RESOURCES DEFENSE

COUNCIL, INC.., et al.

William D. RUCKELSHAUS, Administrator,

Environmental Protection Agency,

Petitioner,

vs

NATURAL RESOURCES DEFENSE

COUNCIL, INC., et al.

Nos. 82-1005, 82-1247 and 82-1591.

Supreme Court of the United States

Argued Feb. 29, 1984.

Decided June 25, 1984.

Rehearing Denied Aug. 16, 1984.

See 468 U.S. 1227, 105 S.Ct. 28, 29.

22a

Petition was filed for review of order of the Environmental

Protection Agency. The Court of Appeals, 685 F.2d 718,

vacated regulations, and certiorari was granted. The Supreme

Court, Justice Stevens, held that Environmental Protection

Agency regulation allowing states to treat all pollution-

emitting devices within same industrial grouping as though

they were encased within single "bubble" was based on

permissible construction of term "stationary source" in Clean

Air Act Amendments.

Reversed.

[1] FEDERAL COURTS k445

170BE +45

Supreme Court reviews judgments, not opinions.

[2] STATUTES k219(2)

361k219(2)

When court reviews agency's construction of statute which it

administers, court is confronted with two questions: whether

Congress has directly spoken on precise question at issue; if

statute is silent or ambiguous with respect to specific issue,

question for court is whether agency's answer is based on

permissible construction of statute.

[2] STATUTES k219(4)

361k219(4)

When court reviews agency's construction of statute which it

administers, court is confronted with two questions: whether

Congress has directly spoken on precise question at issue; if

statute is silent or ambiguous with respect to specific issue,

question for court is whether agency's answer is based on

permissible construction of statute.

23a

[3] STATUTES k219(4)

361k219(4)

Judiciary is final authority on issues of Statutory construction

and must reject administrative constructions which are

contrary to clear congressional intent.

[4] STATUTES k219(1)

361k219(1)

Court need not conclude that agency's construction of statute

which it administered was only one it permissibly could have

adopted to uphold construction, or even reading the court

would have reached if question initially had arisen in judicial

proceeding.

[5] STATUTES k219(1)

361k219(1)

Where legislative delegation to agency on particular question

is implicit rather than explicit, court may not substitute its

own construction of statutory provision for reasonable

interpretation made by administrator of agency.

[6] STATUTES k219(1)

361k219(1)

Considerable weight should be accorded to executive

department's construction of statutory scheme it is entrusted

to administer.

[7] HEALTH AND ENVIRONMENT k25.6(3.1)

199k25.6(3.1)

Formerly 199k25.6(3)

Environmental Protection Agency regulation allowing States

to treat all pollution-emitting devices within same industrial

grouping as though they were encased within single "bubble"

was based on permissible construction of term "stationary

source" in Clean Air Act Amendments. Clean Air Act, ss

24a

111(a)(3), 172(b)(6), 302(j), as amended, 42 U.S.C.A. ss

741 1(a)(3), 7502(b)(6), 7602()).

Syllabus [FNal ]

FNal. The syllabus constitutes no part of the opinion of the

Court but has been prepared by the Reporter of Decisions for

the convenience of the reader. See United States v. Detroit

Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed.

499.

The Clean Air Act Amendments of 1977 impose certain

requirements on States that have not achieved the national air

quality standards established by the Environmental

Protection Agency (EPA) pursuant to earlier legislation,

including the requirement that such "nonattainment" States

establish a permit program regulating "new or modified

major stationary sources" of air pollution. Generally, a

permit may not be issued for such sources unless stringent

conditions are met. EPA regulations promulgated in 1981 to

implement the permit requirement allow a State to adopt a

plantwide definition of the term "stationary source,” under

which an existing plant that contains several pollution-

emitting devices may install or modify one piece of

equipment without meeting the permit conditions if the

alteration will not increase the total emissions from the plant,

thus allowing a State to treat all of the pollution- emitting

devices within the same industrial grouping as though they

were encased within a single "bubble." Respondents filed a

petition for review in the Court of Appeals, which set aside

the regulations embodying the "bubble concept" as contrary

to law. Although recognizing that the amended Clean Air

Act does not explicitly define what Congress envisioned as a

"stationary source” to which the permit program should

apply, and that the issue was not squarely addressed in the

legislative history, the court concluded that, in view of the

purpose of the nonattainment program to improve rather than

CD ALSINARS PRA a BAER ON

25a

merely maintain air quality, a plantwide definition was

"inappropriate," while stating it was mandatory in programs

designed to maintain existing air quality.

Held: The EPA's plantwide definition is a permissible

construction of the statutory term "stationary source." Pp.

2781-2793.

(a) With regard to judicial review of an agency's

construction of the statute which it administers, if Congress

has not directly spoken to the precise question at issue. the

question for the court is whether the agency's answer is based

on a permissible construction of the statute. Pp. 2781-2783.

(b) Examination of the legislation and _ its history

supports the Court of Appeals’ conclusion that Congress did

not have a specific intention as to the applicability of the

"bubble concept" in these cases. Pp. 2783-2786.

(c) The legislative history of the portion of the 1977

Amendments dealing with nonattainment areas plainly

discloses that in the permit program Congress sought to

accommodate the conflict between the economic interest in

permitting capital improvements to continue andthe

environmental interest in improving air quality. Pp. 2786-

2787.

(d) Prior to the 1977 Amendments, the EPA had used a

plantwide definition of the term "source," but in 1980 the

EPA ultimately adopted a regulation that, in essence, applied

the basic reasoning of the Court of Appeals here, precluding

use of the "bubble concept" in nonattainment States’

programs designed to enhance air quality. However, when a

new administration took office 1981, the EPA, in

promulgating the regulations involved here, reevaluated the

various arguments that had been advanced in connection

26a

with the proper definition of the term "source" and concluded

that the term should be given the plantwide definition in

nonattainment areas. Pp. 2787-2790.

(e) Parsing the general terms in the text of the amended

Clean Air Act-- particularly the provisions of ss 302(j) and

111(a)(3) pertaining to the definition of "source"--does not

reveal any actual intent of Congress as to the issue in these

cases. To the extent any congressional "intent" can be

discerned from the statutory language, it would appear that

the listing of overlapping, illustrative terms was intended to

enlarge, rather than to confine, the scope of the EPA's power

to regulate particular sources in order to effectuate the

policies of the Clean Air Act. Similarly, the legislative

history is consistent with the view that the EPA should have

broad discretion in implementing the policies of the 1977

Amendments. The plantwide definition is fully consistent

with the policy of allowing reasonable economic growth, and

the EPA has advanced a reasonable explanation for its

conclusion that the regulations serve environmental

objectives as well. The fact that the EPA has from time to

time changed its interpretation of the term "source" does not

lead to the conclusion that no deference should be accorded

the EPA's interpretation of the statute. An agency, to engage

in informed rulemaking, must’ consider varying

interpretations and the wisdom of its policy on a continuing

basis. Policy arguments concerning the "bubble concept"

should be addressed to legislators or administrators, not to

judges. The EPA's interpretation of the statute here

represents a reasonable accommodation of manifestly

competing interests and is entitled to deference. Pp. 2790-

2793.

222 U.S.App.D.C. 268, 685 F.2d 718 (1982), reversed.

Paul M. Bator, Cambridge, Mass., for petitioners.

David D. Doniger, Washington, D.C., for respondents.

27a

Justice STEVENS delivered the opinion of the Court.

In the Clean Air Act Amendments of 1977, Pub.L. 95-95, 91

Stat. 685, Congress enacted certain requirements applicable

to States that had not achieved the national air quality

Standards established by the Environmental Protection

Agency (EPA) pursuant to earlier legislation. The amended

Clean Air Act required these “nonattainment" States to

establish a permit program regulating "new or modified

major stationary sources" of air pollution. Generally, a

permit may not be issued for a new or modified major

stationary source unless several stringent conditions are met.

[FN1] The EPA regulation promulgated to implement this

permit requirement allows a State to adopt a plantwide

definition of the term "stationary source." [FN2] Under this

definition, an existing plant that contains several pollution-

emitting devices may install or modify one piece of

equipment without meeting the permit conditions if the

alteration will not increase the total emissions from the plant.

The question presented by these cases is whether EPA's

decision to allow States to treat all of the pollution-emitting

devices within the same industrial grouping as though they

were encased within a single "bubble" is based on a

reasonable construction of the statutory term "stationary

source."

FN1. Section 172(b)(6), 42 U.S.C. §7502(b)(6), provides:

"The plan provisions required by subsection (a) shall-- .....

"(6) require permits for the construction and operation of

new or modified major stationary sources in accordance with

section 173 (relating to permit requirements)." 91 Stat. 747

FN2. "(i) ‘Stationary source’ means any building, structure,

facility, or installation which emits or may emit any air

pollutant subject to regulation under the Act. "(ii) ‘Building,

28a

structure, facility, or installation’ means all of the pollutant-

emitting activities which belong to the same industrial

grouping, are located on one or more contiguous or adjacent

properties, and are under the control of the same person (or

persons under common control) except the activities of any

vessel." 40 C.F.R. ss 51.18(j)(1)(i) and (ii) (1983).

1.

The EPA regulations containing the plantwide definition of

the term stationary source were promulgated on October 14,

1981. 46 Fed.Reg. 50766. Respondents [FN3] filed a

timely petition for review in the United States Court of

Appeals for the District of Columbia Circuit pursuant to 42

U.S.C. §7607(b)(1). [FN4] The Court of Appeals set aside

the regulations. National Resources Defense Council, Inc. v.

Gorsuch, 222 U.S.App.D.C. 268, 685 F.2d 718 (1982).

FN3. National Resources Defense Council, Inc., Citizens

for a Better Environment, Inc., and North Western Ohio

Lung Association, Inc.

FN4. Petitioners, Chevron U.S.A. Inc., American Iron and

Stee! Institute, American Petroleum Institute, Chemical

Manufacturers Association, Inc., General Motors Corp., and

Rubber Manufacturers Association were granted leave to

intervene and argue in support of the regulation.

The court observed that the relevant part of the amended

Clean Air Act "does not explicitly define what Congress

envisioned as a ‘stationary source, to which the permit

program ... should apply," and further stated that the precise

issue was not "squarely addressed in the legislative history."

Id., at 273, 685 F.2d, at 723. In light of its conclusion that the

legislative history bearing on the question was "at best

contradictory," it reasoned that "the purposes of the

29a

nonattainment program should guide our decision here." Id.,

at 276, n. 39, 685 F.2d, at 726, n. 39. [FN5] Based on two

of its precedents concerning the applicability of the bubble

concept to certain Clean Air Act programs, [FN6] the court

stated that the bubble concept was "mandatory" in programs

designed merely to maintain existing air quality, but held that

it was "inappropriate" in programs enacted to improve air

quality. Id., at 276, 685 F.2d, at 726. Since the purpose of

the permit program--its "raison d'etre," in the court's view--

was to improve air quality, the court held that the bubble

concept was inapplicable in these cases under its prior

precedents. Ibid. It therefore set aside the regulations

embodying the bubble v.oncept as contrary to law. We

granted certiorari to review that judgment, 461 U.S. 956, 103

S.Ct. 2427, 77 L.Ed.2d 1314 (1983), and we now reverse.

FNS. The court remarked in this regard: "We regret, of

course, that Congress did not advert specifically to the

bubble concept's application to various Clean Air Act

programs, and note that a further clarifying statutory

directive would facilitate the work of the agency and of the

court in their endeavors to serve the legislators’ will." 222

U.S.App.D.C., at 276, n. 39, 685 F.2d, at 726, n. 39.

FN6. Alabama Power Co. v. Costle, 204 U.S.App.D.C. 51,

636 F.2d 323 (1979); ASARCO Inc. v. EPA, 188

U.S.App.D.C. 77, 578 F.2d 319 (1978).

[1] The basic legal error of the Court of Appeals was to

adopt a static judicial definition of the term "stationary

source" when it had decided that Congress itself had not

commanded that definition. Respondents do not defend the

legal reasoning of the Court of Appeals. [FN7] Nevertheless,

since this Court reviews judgments, not opinions, [FN8] we

must determine whether the Court of Appeals’ legal error

30a

resulted in an erroneous judgment on the validity of the

regulations.

FN7. Respondents argued below that EPA's plantwide

definition of "stationary source" is contrary to the terms,

legislative history, and purposes of the amended Clean Air

Act. The court below rejected respondents’ arguments based

on the language and legislative history of the Act. It did

agree with respondents contention that the regulations were

inconsistent with the purposes of the Act, but did not adopt

the construction of the statute advanced by respondents here.

Respondents rely on the arguments rejected by the Court of

Appeals in support of the judgment, and may rely on any

ground that finds support in the record. See Ryerson v.

United States, 312 U.S. 405, 408, 61 S.Ct. 656, 658, 85

L.Ed. 917 (1941); LeTulle v. Scofield, 308 U.S. 415, 421, 60

S.Ct. 313, 316, 84 L.Ed. 355 (1940); Langnes v. Green, 282

U.S. 531, 533-539, 51 S.Ct. 243, 244-246, 75 L.Ed. 520

(1931).

FN8. e.g., Black v. Cutter Laboratories, 351 U.S. 292, 297,

76 S.Ct. 824, 827, 100 L.Ed. 1188 (1956); JE. Riley

Investment Co. v. Commissioner, 311 U.S. 55, 59, 61 S.Ct.

95, 97, 85 L.Ed. 36 (1940); Williams v. Norris, 12 Wheat.

117, 120, 6 L.Ed. 571 (1827); McClung v. Silliman, 6 Wheat.

598, 603, 5 L.Ed. 340 (1821).

3la

II.

[2}[3}][4] When a court reviews an agency's construction of

the statute which it administers, it is confronted with two

questions. First, always, is the question whether Congress

has directly spoken to the precise question at issue. If the

intent of Congress is clear, that is the end of the matter; for

the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress. [FN9] If,

however, the court determines Congress has not directly

addressed the precise question at issue, the court does not

simply impose its own construction on the statute, [FN10]

as would be necessary in the absence of an administrative

interpretation. Rather, if the statute is silent or ambiguous

with respect to the specific issue, the question for the court is

whether the agency's answer is based on a permissible

construction of the statute. [FN11]

FN9. The judiciary is the final authority on issues of

Statutory construction and must reject administrative

constructions which are contrary to clear congressional

intent. See, e.g., FEC v. Democratic Senatorial Campaign

Committee, 454 U.S. 27, 32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23

(1981); SEC v. Sloan, 436 U.S. 103, 117-118, 98 S.Ct. 1702,

1711-1712, 56 L.Ed.2d 148 (1978); FMC v. Seatrain Lines,

Inc., 411 U.S. 726, 745-746, 93 S.Ct. 1773, 1784-1785, 36

L.Ed.2d 620 (1973); Volkswagenwerk v. FMC, 390 U.S. 261,

272, 88 S.Ct. 929, 935, 19 L.Ed.2d 1090 (1968); NZRB v.

Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d

839 (1965); FTC v. Colgate-Palmolive Co., 380 U.S, 374,

385, 85 S.Ct. 1035, 1042, 13 L.Ed.2d 904 (1965); Social

Security Board v. Nierotko, 327 U.S. 358, 369, 66 S.Ct. 637,

643, 90 L.Ed. 718 (1946); Burnet v. Chicago Portrait Co.,

285 U.S. 1, 16, 52 S.Ct. 275, 281, 76 L.Ed. 587 (1932);

Webster v. Luther, 163 U.S. 331, 342, 16 S.Ct. 963, 967, 41

L.Ed. 179 (1896). If a court, employing traditional tools of

32a

Statutory construction, ascertains that Congress had an

intention on the precise question at issue, that intention is the

law and must be given effect.

FN10. See generally, R. Pound, The Spirit of the Common

Law 174-175 (1921).

FN11. The court need not conclude that the agency

construction was the only one it permissibly could have

adopted to uphold the construction, or even the reading the

court would have reached if the question initially had arisen

in a judicial proceeding. FEC v. Democratic Senatorial

Campaign Committee, 454 U.S., at 39, 102 S.Ct., at 46;

Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98

S.Ct. 2441, 2445, 57 L.Ed.2d 337 (1978); Train v. Natural

Resources Defense Council, Inc., 421 U.S. 60, 75, 95 S.Ct.

1470, 1479, 43 L.Ed.2d 731 (1975); Udall v. Tallman, 380

U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965);

Unemployment Compensation Comm'n v. Aragon, 329 U.S.

143, 153, 67 S.Ct. 245, 250, 91 L.Ed. 136 (1946); McLaren

v. Fleischer, 256 U.S. 477, 480-481, 41 S.Ct. 577, 577-578,

65 L.Ed. 1052 (1921).

[5] "The power of an administrative agency to administer a

congressionally created ... program necessarily requires the

formulation of policy and the making of rules to fill any gap

left, implicitly or explicitly, by Congress." Morton v. Ruiz,

415 U.S. 199, 231, 94 S.Ct. 1055, 1072, 39 L.Ed.2d 270

(1974). If Congress has explicitly left a gap for the agency to

fill, there is an express delegation of authority to the agency

to elucidate a specific provision of the statute by regulation.

Such legislative regulations are given controlling weight

unless they are arbitrary, capricious, or manifestly contrary

to the statute. [FN12] Sometimes the legislative delegation to

an agency on a particular question is implicit rather than

explicit. In such a case, a court may not substitute its own

33a

construction of a statutory provision for a reasonable

interpretation made by the administrator of an agency.

[FN13]

FN12. See, e.g., United States v. Morton, 467 U.S. 822, 834,

104 S.Ct. 2769, 2776, 81 L.Ed.2d 680 (1984) Schweiker v.

Gray Panthers, 453 U.S. 34, 44, 101 S.Ct. 2633, 2640, 69

L.Ed.2d 460 (1981); Batterton v. Francis, 432 U.S. 416, 424-

426, 97 S.Ct. 2399, 2404-2406, 53 L.Ed.2d 448 (1977);

American Telephone & Telegraph Co. v. United States, 299

U.S. 232, 235- 237, 57 S.Ct. 170, 172-173, 81 L.Ed. 142

(1936).

FN13. e.g., INS v. Jong Ha Wang, 450 U.S. 139, 144, 101

S.Ct. 1027, 1031, 67 L.Ed.2d 123 (1981); Train v. Natural

Resources Defense Council, Inc., 421 U.S., at 87, 95 S.Ct., at

1485.

[6] We have long recognized that considerable weight should

be accorded to an executive department's construction of a

statutory scheme it is entrusted to administer, [FN14] and the

principle of deference to administrative interpretations.

FN14. Aluminum Co. of America v. Central Lincoln

Peoples' Util.. Dist., 467 U.S. 380, 389, 104 S.Ct. 2472,

2479-2480, 81 L.Ed.2d 301 (1984); Blum v. Bacon, 457 U.S.

132, 141, 102 S.Ct. 2355, 2361, 72 L.Ed.2d 728 (1982);

Union Electric Co. v. EPA, 427 U.S. 246, 256, 96 S.Ct.

2518, 2525, 49 L.Ed.2d 474 (1976); Investment Company

Institute v. Camp, 401 U.S. 617, 626-627, 91 S.Ct. 1091,

1097, 28 L.Ed.2d 367 (1971); Unemployment Compensation

Comm'n v. Aragon, 329 U.S., at 153-154, 67 S.Ct., at 250-

251; NLRB v. Hearst Publications, Inc., 322 U.S. 111, 131,

64 S.Ct. 851, 860, 88 L.Ed. 1170 (1944); McLaren v.

Fleischer, 256 U.S., at 480-481, 41 S.Ct. at 577-578;

Webster v. Luther, 163 U.S., at 342, 16 S.Ct., at 967; Brown

i eee

34a

v. United States, 113 U.S. 568, 570-571, 5 S.Ct. 648, 649-

650, 28 L.Ed. 1079 (1885); United States v. Moore, 95 US.

760, 763, 24 L.Ed. 588 (1878); Edwards’ Lessee v. Darby, 12

Wheat. 206, 210, 6 L.Ed. 603 (1827).

"has been consistently followed by this Court whenever

decision as to the meaning or reach of a statute has involved

reconciling conflicting policies, and a full understanding of

the force of the statutory policy in the given situation has

depended upon more than ordinary knowledge respecting the

matters subjected to agency regulations. See, e.g., National

Broadcasting Co. v. United States, 319 U.S. 190 [63 S.Ct.

997, 87 L.Ed. 1344]; Labor Board v. Hearst Publications,

Inc., 322 U.S. 111 [64 S.Ct. 851, 88 L.Ed. 1170]; Republic

Aviation Corp. v. Labor Board, 324 U.S. 793 [65 S.Ct. 982,

89 L.Ed. 1372]; Securities & Exchange Comm'n v. Chenery

Corp., [332] 322 U.S. 194 [67 S.Ct. 1575, 91 L.Ed. 1995];

Labor Board v. Seven-Up Bottling Co., 344 U.S. 344 [73

S.Ct. 287, 97 L.Ed. 377]. "... If this choice represents a

reasonable accommodation of conflicting policies that were

committed to the agency's care by the statute, we should not

disturb it unless it appears from the statute or its legislative

history that the accommodation is not one that Congress

would have sanctioned." United States v. Shimer, 367 U.S.

374, 382, 383, 81 S.Ct. 1554, 1560, 1561, 6 L.Ed.2d 908

(1961). Accord Capital Cities Cable, Inc. v. Crisp, 467 U.S.

691, 699-700, 104 S.Ct. 2694, 2700-2701, 81 L.Ed.2d 580

(1984).

In light of these well-settled principles it is clear that the

Court of Appeals misconceived the nature of its role in

reviewing the regulations at issue. Once it determined, after

its own examination of the legislation, that Congress did not

actually have an intent regarding the applicability of the

bubble concept to the permit program, the question before it

was not whether in its view the concept is "inappropriate" in

35a

the general context of a program designed to improve air

quality, but whether the Administrator's view that it is

appropriate in the context of this particular program is a

reasonable one. Based on the examination of the legislation

and its history which follows, we agree with the Court of

Appeals that Congress did not have a specific intention on

the applicability of the bubble concept in these cases, and

conclude that the EPA's use of that concept here is a

reasonable policy choice for the agency to make.

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II.

In the 1950's and the 1960's Congress enacted a series of

Statutes designed to encourage and to assist the States in

curtailing air pollution. See generally Train v. Natural

Resources Defense Council, Inc., 421 U.S. 60, 63-64, 95

S.Ct. 1470, 1474-1475, 43 L.Ed.2d 731 (1975). The Clean

Air Amendments of 1970, Pub.L. 91-604, 84 Stat. 1676,

"sharply increased federal authority and responsibility in the

continuing effort to combat air pollution," 421 U.S., at 64, 95

S.Ct., at 1474, but continued to assign "primary

responsibility for assuring air quality" to the several States,

84 Stat. 1678. Section 109 of the 1970 Amendments directed

the EPA to promulgate National Ambient Air Quality

Standards (NAAQS's) [FN15] and §110 directed the States to

develop plans (SIP's) to implement the standards within -

specified deadlines. In addition, §111 provided that major

new sources of pollution would be required to conform to

technology-based performance standards; the EPA was

directed to publish a list of categories of sources of pollution

and to establish new source performance standards (NSPS)

for each. Section 111(e) prohibited the operation of any new

source in violation of a performance standard.

FN15. Primary standards were defined as those whose

attainment and maintenance were necessary to protect the

ee a

36a

public health, and secondary standards were intended to

specify a level of air quality that would protect the public

welfare.

Section 1 11(a) defined the terms that are to be used in setting

and enforcing standards of performance for new stationary

sources. It provided: "For purposes of this section: ..... (3)

The term ‘stationary source’ means any building, structure,

facility, or installation which emits or may emit any air

pollutan:.’ 84 Stat. 1683. In the 1970 Amendments that

definition was not only applicable to the NSPS program

required by s 111, but also was made applicable to a

requirement of §110 that each state implementation plan

contain a procedure for reviewing the location of any

proposed new source and preventing its construction if it

would preclude the attainment or maintenance of national air

quality standards. [FN16]

FN16. See §§110(a)(2)(D) and 110(a)(4).

In due course, the EPA promulgated NAAQS's, approved

SIP's, and adopted detailed regulations governing NSPS's for

various categories of equipment. In one of its programs, the

EPA used a plantwide definition of the term "stationary

source." In 1974, it issued NSPS's for the nonferrous

smelting industry that provided that the standards would not

apply to the modification of major smelting units if their

increased emissions were offset by reductions in other

portions of the same plant. [FN17]

FN17. The Court of Appeals ultimately held that this

plantwide approach was prohibited by the 1970 Act, see

ASARCO Inc., 188 U.S.App.D.C., at 83-84, 578 F.2d, at

325-327. This decision was rendered after enactment of the

1977 Amendments, and hence the standard was in effect

when Congress enacted the 1977 Amendments.

PLAS LLANE TN BELLE TIDE TEL AE ec

Ses Sea

— - Po peEtic ew “

LR ORAL ALE AL EMI LDL ID ERO _

37a

Nonattainment

The 1970 legislation provided for the attainment of primary

NAAQS's by 1975. In many areas of the country,

particularly the most industrialized States, the statutory goals

were not attained. [FN18] In 1976, the 94th Congress was

confronted with this fundamental problem, as well as many

others respecting pollution control. As always in this area,

the legislative struggle was basically between interests

seeking strict schemes to reduce pollution rapidly to

eliminate its social costs and interests advancing the

economic concern that strict schemes would retard industrial

development with attendant social costs. The 94th Congress,

confronting these competing interests, was unable to agree

on what response was in the public interest: legislative

proposals to deal with nonattainment failed to command the

necessary consensus. [FN19]

FN18. See Report of the National Commission on Air

Quality, To Breathe Clean Air, 3.3-20 through 3.3-33 (1981).

FN19. Comprehensive bills did pass both Chambers of

Congress; the Conference Report was rejected in the Senate.

122 Cong.Rec. 34375-34403, 34405-34418 (1976).

In light of this situation, the EPA published an Emissions

Offset Interpretative Ruling in December 1976, see 41

Fed.Reg. 55524, to "fill the gap," as respondents put it, until

Congress acted. The Ruling stated that it was intended to

address "the issue of whether and to what extent nafiohal air

quality standards established under the Clean Air Act may

restrict or prohibit growth of major new or expanded

stationary air pollution sources." Id., at 55524-55525. In

general, the Ruling provided that "a major new source may

locate in an area with air quality worse than a national

38a

standard only if stringent conditions can be met." Id., at

55525. The Ruling gave primary emphasis to the rapid

attainment of the statute's environmental goals. [FN20]

Consistent with that emphasis, the construction of every new

source in nonattainment areas had to meet the "lowest

achievable emission rate" under the current state of the art

for that type of facility. See Ibid. The 1976 Ruling did not,

however, explicitly adopt or reject the "bubble concept."

[FN21]

FN20. For example, it stated: "Particularly with regard to the

primary NAAQS's, Congress and the Courts have made clear

that economic considerations must be subordinated to

NAAQS achievement and maintenance. While the ruling

allows for some growth in areas violating a NAAQS if the

net effect is to insure further progress toward NAAQS

achievement, the Act does not allow economic growth to be

accommodated at the expense of the public health." 41

Fed.Reg. 55527 (1976).

FN21. In January 1979, the EPA noted that the 1976 Ruling

was ambiguous concerning this issue: "A number of

commenters indicated the need for a more explicit definition

of 'source.' Some readers found that it was unclear under the

1976 Ruling whether a plant with a number of different

processes and emission points would be considered a single

source. The changes set forth below define a source as ‘any

structure, building, facility, equipment, installation, or

operation (or combination thereof) which is located on one or

more contiguous or adjacent properties and which is owned

or operated by the same person (or by persons under

common control.’ This definition precludes a large plant

from being separated into individual production lines for

purposes of determining applicability of the offset

requirements." 44 Fed.Reg. 3276.

39a

IV.

The Clean Air Act Amendments of 1977 are a lengthy,

detailed, technical, complex, and comprehensive response to

a major social issue. A small portion of the statute -- 91 Stat.

745-751 (Part D of Title I of the amended Act, 42 U.S.C. ss

7501-7508) -- expressly deals with nonattainment areas. The

focal point of this controversy is one phrase in that portion of

the Amendments. [FN22]

FN22. Specifically, the controversy in these cases involves

the meaning of the term "major stationary sources" in

§172(b)(6) of the Act, 42 U.S.C. §7502(b)(6). The meaning

of the term "proposed source" in §173(2) of the Act, 42

U.S.C. §7503(2), is not at issue.

Basically, the statute required each State in a nonattainment

area to prepare and obtain approval of a new SIP by July 1,

1979. In the interim those States were required to comply

with the EPA's interpretative Ruling of December 21, 1976.

91 Stat. 745. The deadline for attainment of the primary

NAAQS's was extended until December 31, 1982, and in

some cases until December 31, 1987, but the SIP'’s were

required to contain a number of provisions designed to

achieve the goals as expeditiously as possible. [FN23]

FN23. Thus, among other requirements, §172(b) provided

that the SIP's shall-- "(3) require, in the interim, reasonable

further progress (as defined in section 171(1)) including such

reduction in emissions from existing sources in the area as

may be obtained through the adoption, at a minimum, of

reasonably available control technology; "(4) include a

comprehensive, accurate, current inventory of actual

emissions from all sources (as provided by rule of the

Administrator) of each such pollutant for each such area

which is revised and resubmitted as frequently as may be

ae

necessary to assure that the requirements of paragraph (3) are

met and to assess the -.ced for additional reductions to assure

attainment of each standard by the date required under

paragraph (1); "(5) expressly identify and quantify the

emissions, if any, of any such pollutant which will be

allowed to result from the construction and operation of

major new or modified stationary sources for each such area;

ak "(8) contain emission limitations, schedules of

compliance and such other measures as may be necessary to

meet the requirements of this section." 91 Stat. 747. Section

171(1) provided: "(1) The term ‘reasonable further progress’

means annual incremental reductions in emissions of the

applicable air pollutant (including substantial reductions in

the early years following approval or promulgation of plan

provisions under this part and section 110(a)(2)(I) and

regular reductions thereafter) which are sufficient in the

judgment of the Administrator, to provide for attainment of

the applicable national ambient air quality standard by the

date required in section 172(a)." Id., at 746.

Most significantly for our purposes, the statute provided that

each plan shall "(6) require permits for the construction and

operation of new or modified major stationary sources in

accordance with section 173...."_ Id., 747. Before issuing a

permit, §173 requires (1) the state agency to determine that

there will be sufficient emissions reductions in the region to

offset the emissions from the new source and also to allow

for reasonable further progress toward attainment, or that the

increased emissions will not exceed an allowance for growth

established pursuant to §172(b)(5); (2) the applicant to

certify that his other sources in the State are in compliance

with the SIP, (3) the agency to determine that the applicable

SIP is otherwise being implemented, and (4) the proposed

source to comply with the lowest achievable emission rate

(LAER). [FN24]

4la

FN24. Section 171(3) provides: "(3) The term ‘lowest

achievable emission rate' means for any source, that rate of

emissions which reflects-- "(A) the most stringent emission

limitation which is contained in the implementation plan of

any State for such class or category of source, unless the

owner or operator of the proposed source demonstrates that

such limitations are not achievable, or "(B) the most

stringent emission limitation which is achieved in practice by

such class or category of source, whichever is more stringent.

"In no event shall the application of this term permit a

proposed new or modified source to emit any pollutant in

excess of the amount allowable under applicable new source

standards of performance." The LAER requirement is

defined in terms that make it even more stringent than the

applicable new source performance standard developed

under s 111 of the Act, as amended by the 1970 statute.

The 1977 Amendments contain no specific reference to the

"pubble concept.” Nor do they contain a specific definition

of the term "stationary source," though they did not disturb

the definition of "stationary. source" contained in §111(a)(3),

applicable by the terms of the Act to the NSPS program.

Section 302(j), however, defines the term "major stationary

source” as follows: "(j) Except as otherwise expressly

provided, the terms ‘major stationary source’ and 'major

emitting facility’ mean any stationary facility or source of air

pollutants which directly emits, or has the potential to emit,

one hundred tons per year or more of any air pollutant

(including any major emitting facility or source of fugitive

emissions of any such pollutant, as determined by rule by the

Administrator)." 91 Stat. 770.

V.

The legislative history of the portion of the 1977

Amendments dealing with nonattainment areas does not

42a

contain any specific comment on the "bubble concept" or the

question whether a plantwide definition of a stationary

source is permissible under the permit program. It does,

however, plainly disclose that in the permit program

Congress sought to accommodate the conflict between the

economic interest in permitting capital improvements to

continue and the environmental interest in improving air

quality. Indeed, the House Committee Report identified the

economic interest as one of the "two main purposes" of this

section of the bill. It stated: "Section 117 of the bill, adopted

during full committee markup establishes a new section 127

of the Clean Air Act. The section has two main purposes: (1)

to allow reasonable economic growth to continue in an area

while making reasonable further progress to assure

attainment of the standards by a fixed date; and (2) to allow

States greater flexibility for the former purpose than EPA's

present interpretative regulations afford. "The new provision

allows States with nonattainment areas to pursue one of two

options. First, the State may proceed under EPA's present

‘tradeoff or 'offset' ruling. The Administrator is authorized,

moreover, to modify or amend that ruling in accordance with

the intent and purposes of this section. "The State's second

option would be to revise its implementation plan in

accordance with this new provision.” H.R.Rep. No. 95-294,

p. 211 (1977), U.S.Code Cong. & Admin.News 1977, pp.

1077, 1290. [FN25]

FN25. During the floor debates Congressman Waxman

remarked that the legislation struck "a proper balance

between environmental controls and economic growth in the

dirty air areas of America.... There is no other single issue

which more clearly poses the conflict between pollution

control and new jobs. We have determined that neither need

be compromised.... "This is a fair and balanced approach,

which will not undermine our economic vitality, or impede

achievement of our ultimate environmental objectives." 123

Cong.Rec. 27076 (1977). The second "main purpose" of the

provision -- allowing the States "greater flexibility" than the

EPA's interpretative Ruling -- as well as the reference to the

EPA's authority to amend its Ruling in accordance with the

intent of the section, is entirely consistent with the view that

Congress did not intend to freeze the definition of "source"

contained in the existing regulation into a rigid statutory

requirement.

The portion of the Senate Committee Report dealing with

nonattainment areas states generally that it was intended to

"supersede the EPA administrative approach," and that

expansion should be permitted if a State could "demonstrate

that these facilities can be accommodated within its overall

plan to provide for attainment of air quality standards."

S.Rep. No. 95-127, p. 55 (1977). The Senate Report notes

the value of "case-by-case review of each new or modified

major source of pollution that seeks to locate in a region

exceeding an ambient standard," explaining that such a

review "requires matching reductions from existing sources

against emissions expected from the new source in order to

assure that introduction of the new source will not prevent

attainment of the applicable standard by the statutory

deadline." Ibid. This description of a case-by-case approach

to plant additions, which emphasizes the net consequences of

the construction or modification of a new source, as well as

its impact on the overall achievement of the national

standards, was not, however, addressed to the precise issue

raised by these cases.

Senator Muskie made the following remarks: "I should note

that the test for determining whether a new or modified

source is subject to the EPA interpretative regulation [the

Offset Ruling] -- and to the permit requirements of the

revised implementation plans under the conference bill -- is

whether the source will emit a pollutant into an area which is

44a

exceeding a national ambient air quality standard for that

pollutant -- or precursor. Thus, a new source is still subject

to such requirements as ‘lowest achievable emission rate’

even if it is constructed as a replacement for an older facility

resulting in a net reduction from previous emission levels.

"A source -- including an existing facility ordered to convert

to coal -- is subject to all the nonattainment requirements as a

modified source if it makes any physical change which

increases the amount of any air pollutant for which the

standards in the area are exceeded." 123 Cong.Rec. 26847

(1977).

VI.

As previously noted, prior to the 1977 Amendments, the

EPA had adhered to a plantwide definition of the term

"source" under a NSPS program. After adoption of the 1977

Amendments, proposals for a plantwide definition were

considered in at least three formal proceedings.

In January 1979, the EPA considered the question whether

the same restriction on new construction in nonattainment

areas that had been included in its December 1976 Ruling

should be required in the revised SIP's that were scheduled to

go into effect in July 1979. After noting that the 1976

Ruling was ambiguous on the question "whether a plant with

a number of different processes and emission points would

be considered a single source," 44 Fed.Reg. 3276 (1979), the

EPA, in effect, provided a bifurcated answer to that question.

In those areas that did not have a revised SIP in effect by

July 1979, the EPA rejected the plantwide definition; on the

other hand, it expressly concluded that the plantwide

approach would be permissible in certain circumstances if

authorized by an approved SIP. It stated: "Where a state

implementation plan is revised and implemented to satisfy

the requirements of Part D, including the reasonable further

3

id

a

a

;

;

progress requirement, the plan requirements for major

modifications may exempt modifications of existing facilities

that are accompanied by intrasource offsets so that there is

no net increase in emissions. The agency endorses such

exemptions, which would provide greater flexibility to

sources to effectively manage their air emissions at least

cost." Ibid. [FN26]

FN26. In the same Ruling, the EPA added: "The above

exemption is permitted under the SIP because, to be

approved under Part D, plan revisions due by January 1979

must contain adopted measures assuring that reasonable

further progress will be made. Furthermore, in most

circumstances, the measures adopted by January 1979 must

be sufficient to actually provide for attainment of the

standards by the dates required under the Act, and in all

circumstances measures adopted by 1982 must provide for

attainment. See Section 172 of the Act and 43 FR 21673-

21677 (May 19, 1978). Also, Congress intended under

Section 173 of the Act that States would have some latitude

to depart from the strict requirements of this Ruling when the

State plan is revised and is being carried out in accordance

with Part D. Under a Part D plan, therefore, there is less need

to subject a modification of an existing facility to LAER and

other stringent requirements if the modification is

accompanied by sufficient intrasource offsets so that there is

no net increase in emissions." 44 Fed.Reg. 3277 (1979).

In April, and again in September 1979, the EPA published

additional comments in which it indicated that revised SIP's

could adopt the plantwide definition of source in

nonattainment areas in certain circumstances. See Id., at

20372, 20379, 51924, 51951, 51958. On the latter occasion,

the EPA made a formal rulemaking proposal that would have

permitted the use of the “bubble concept" for new

installations within a plant as well as for modifications of

46a

existing units. It explained: " 'Bubble' Exemption: The use

of offsets inside the same source is called the 'bubble.’ EPA

proposes use of the definition of ‘source’ (see above) to limit

the use of the bubble under nonattainment requirements in

the following respects: "i. Part D SIPs that include all

requirements needed to assure reasonable further progress

and attainment by the deadline under section 172 and that are

being carried out need not restrict the use of a plantwide

bubble, the same as under the PSD proposal. "ii. Part D SIPs

that do not meet the requirements specified must limit use of

the bubble by including a definition of ‘installation’ as an

identifiable piece of process equipment." [FN27]

FN27. Id., at 51926. Later in that Ruling, the EPA added:

"However, EPA believes that complete Part D SIPs, which

contain adopted and enforceable requirements sufficient to

assure attainment, may apply the approach proposed above

for PSD, with plant-wide review but no review of individual

pieces of equipment. Use of only a plant-wide definition of

source will permit plant-wide offsets for avoiding NSR of

new or modified pieces of equipment. However, this is only

appropriate once a SIP is adopted that will assure the

reductions in existing emissions necessary for attainment.

See 44 FR 3276 col. 3 (January 16, 1979). If the level of

emissions allowed in the SIP is low enough to assure

reasonable further progress and attainment, new construction

or modifications with enough offset credit to prevent an

emission increase should not jeopardize attainment." Id., at

51933.

Significantly, the EPA expressly noted that the word

"source" might be given a plantwide definition for some

purposes and a narrower definition for other purposes. It

wrote: "Source means any building structure, facility, or

installation which emits or may emit any regulated pollutant.

‘Building, structure, facility or installation’ means plant in

47a

PSD areas and in nonattainment areas except where the

growth prohibitions would apply or where no adequate SIP

exists or is being carried out." Id., at 51925. [FN28]

FN28. In its explanation of why the use of the "bubble

concept" was especially appropriate in preventing significant

deterioration (PSD) in clean air areas, the EPA stated: "In

addition, application of the bubble on a plant-wide basis

encourages voluntary upgrading of equipment, and growth in

productive capacity." Id., at 51932.

The EPA's summary of its proposed Ruling discloses a

flexible rather than rigid definition of the term "source" to

implement various policies and programs: "In summary,

EPA is proposing two different ways to define source for

different kinds of NSR programs: "(1) For PSD and complete

Part D SIPs, review would apply only to plants, with an

unrestricted plant-wide bubble. "(2) For the offset ruling,

restrictions on construction, and incomplete Part D SIPs,

review would apply to both plants and individual pieces of

process equipment, causing the plant-wide bubble not to

apply for new and modified major pieces of equipment. "In

addition, for the restrictions on construction, EPA is

proposing to define 'major modification’ so as to prohibit the

bubble entirely. Finally, an alternative discussed but not

favored is to have only pieces of process equipment

reviewed, resulting in no plant-wide bubble and allowing

minor pieces of equipment to escape NSR regardless of

whether they are within a major plant." Id., at 51934.

In August 1980, however, the EPA adopted a regulation that,

in essence, applied the basic reasoning of the Court of

Appeals in these cases. The EPA took particular note of the

two then-recent Court of Appeals decisions, which had

created the bright-line rule that the "bubble concept" should

be employed in a program designed to maintain air quality

LEE eee ee eee

48a

but not in one designed to enhance air quality. Relying

heavily on those cases, [FN29] EPA adopted a dual

definition of "source" for nonattainment areas that required a

permit whenever a change in either the entire plant, or one of

its components, would result in a significant increase in

emissions even if the increase was completely offset by

reductions elsewhere in the plant. The EPA expressed the

opinion that this interpretation was "more consistent with

congressional intent" than the plantwide definition because it

"would bring in more sources or modifications for review,"

45 Fed.Reg. 52697 (1980), but its primary legal analysis was

predicated on the two Court of Appeals decisions.

FN29. "The dual definition also is consistent with Alabama

Power and ASARCO. Alabama Power held that EPA had

broad discretion to define the constituent terms of ‘source’ so

as best to effectuate the purposes of the statute. Different

definitions of ‘source’ can therefore be used for different

sections of the statute.... "Moreover, Alabama Power and

ASARCO taken together suggest that there is a distinction

between Clean Air Act programs designed to enhance air

quality and those designed only to maintain air quality.... .....

"Promulgation of the dual definition follows the mandate of

Alabama Power, which held that, while EPA could not

define 'source' as a combination of sources, EPA had broad

discretion to define ‘building,’ ‘structure,’ ‘facility,' and

‘installation’ so as to best accomplish the purposes of the

Act." 45 Fed.Reg. 52697 (1980).

In 1981 a new administration took office and initiated a

"Government-wide reexamination of regulatory burdens and

complexities." 46 Fed.Reg. 16281. In the context of that

review, the EPA reevaluated the various arguments that had

been advanced in connection with the proper definition of the

term "source" and conclude’ ‘hat the term should be given

the same definition in both nonattainment areas and PSD

areas.

In explaining its conclusion, the EPA first noted that the

definitional issue was not squarely addressed in either the

statute or its legislative history and therefore that the issue

involved an agency "judgment as how to best carry out the

Act." Ibid. It then set forth several reasons for concluding

that the plantwide definition was more appropriate. It

pointed out that the dual definition "can act as a disincentive

to new investment and modernization by discouraging

modifications to existing facilities" and "can actually retard

progress in air pollution control by discouraging replacement

of older, dirtier processes or pieces of equipment with new,

cleaner ones." Ibid. Moreover, the new definition "would

simplify EPA's rules by using the same definition of 'source'

for PSD, nonattainment new source review and the

construction moratorium. This reduces confusion and

inconsistency." Ibid. Finally, the agency explained that

additional requirements that remained in place would

accomplish the fundamental purposes of achieving

attainment with NAAQS's as expeditiously as possible.

[FN30] These conclusions were expressed in a proposed

rulemaking in August 1981 that was formally promulgated in

October. See id., at 50766.

FN30. It stated: "5. States will remain subject to the

requirement that for all nonattainment areas they demonstrate

attainment of NAAQS as expeditiously as practicable and

show reasonable further progress toward such attainment.

Thus, the proposed change in the mandatory scope of

nonattainment new source review should not interfere with

the fundamental purpose of Part D of the Act. "6. New

Source Performance Standards (NSPS) will continue to

apply to many new or modified facilities and will assure use

of the most up-to-date pollution control techniques

50a

regardless of the applicability of nonattainment area new

source review. "7. In order to avoid nonattainment area new

source review, a major plant undergoing modification must

show that it will not experience a significant net increase in

emissions. Where overall emissions increase significantly,

review will continue to be required." 46 Fed.Reg. 16281

(1981).

VIL.

[7] In this Court respondents expressly reject the basic

rationale of the Court of Appeals’ decision. That court

viewed the statutory definition of the term "source" as

sufficiently flexible to cover either a plantwide definition, a

narrower definition covering each unit within a plant, or a

dual definition that could apply to both the entire "bubble"

and its components. It interpreted the policies of the statute,

however, to mandate the plantwide definition in programs

designed to maintain clean air and to forbid it in programs

designed to improve air quality. Respondents place a

fundamentally different construction on the statute. They

contend that the text of the Act requires the EPA to use a

dual definition -- if either a component of a plant, or the plant

as a whole, emits over 100 tons of pollutant, it is a major

stationary source. They thus contend that the EPA rules

adopted in 1980, insofar as they apply to the maintenance of

the quality of clean air, as well as the 1981 rules which apply

to nonattainment areas, violate the statute. [FN31]

FN31. "What EPA may not do, however, is define all four

terms to mean only plants. In the 1980 PSD rules, EPA did

just that. EPA compounded the mistake in the 1981 rules

here under review, in which it abandoned the dual

definition." Brief for Respondents 29, n. 56.

Statutory Language

Sla

The definition of the term "stationary source" in §111(a)(3)

refers to "any building, structure, facility, or installation"

which emits air pollution. See supra, at 2784. This

definition is applicable only to the NSPS program by the

express terms of the statute; the text of the statute does not

make this definition applicable to the permit program.

Petitioners therefore maintain that there is no statutory

language even relevant to ascertaining the meaning of

stationary source in the permit program aside from §302(j),

which defines the term "major stationary source." See supra,

at 2786. We disagree with petitioners on this point.

The definition in §302(j) tells us what the word "major"

means -- a source must emit at least 100 tons of pollution to

qualify -- but it sheds virtually no light on the meaning of the

term "stationary source." It does equate a source with a

facility -- a "major emitting facility" and a "major stationary

source" are synonymous under §302(j). The ordinary

meaning of the term "facility" is some collection of

integrated elements which has been designed and constructed

to achieve some purpose. Moreover, it is certainly no affront

to common English usage to take a reference to a major

facility or a major source to connote an entire plant as

opposed to its constituent parts. Basically, however, the

language of §302(j) simply does not compel any given

interpretation of the term "source."

Respondents recognize that, and hence point to §111(a)(3).

Although the definition in that section is not literally

applicable to the permit program, it sheds as much light on

the meaning of the word "source" as anything in the statute.

[FN32] As respondents point out, use of the words

“building, structure, facility, or installation," as the definition

of source, could be read to impose the permit conditions on

an individual building that is a part of a plant. [FN33] A

52a

“word may have a character of its own not to be submerged

by its association." Russell Motor Car Co. v. United States,

261 U.S. 514, 519, 43 S.Ct. 428, 429, 67 L.Ed. 778 (1923).

On the other hand, the meaning of a word must be

ascertained in the context of achieving particular objectives,

and the words associated with it may indicate that the true

meaning of the series is to convey a common idea. The

language may reasonably be interpreted to impose the

requirement on any discrete, but integrated, operation which

pollutes. This gives meaning to all of the terms -- a single

building, not part of a larger operation, would be covered if it

emits more than 100 tons of pollution, as would any facility,

structure, or installation. Indeed, the language itself implies

a "bubble concept" of sorts: each enumerated item would

seem to be treated as if it were encased in a bubble. While

respondents insist that each of these terms must be given a

discrete meaning, they also argue that §111(a)(3) defines

"source" as that term is used in §302(j). The latter section,

however, equates a source with a facility, whereas the former

defines "source" as a facility, among other items.

FN32. We note that the EPA in fact adopted the language of

that definition in its regulations under the permit program. 40

C.F.R. §§51.18G)(1)(), (11) (1983).

FN33. Since the regulations give the States the option to

define an individual unit as a source, see 40 C.F.R.

§51.18(j)(1) (1983), petitioners do not dispute that the terms

can be read as respondents suggest.

We are not persuaded that parsing of general terms in the text

of the statute will reveal an actual intent of Congress.

[FN34] We know full well that this language is not

dispositive; the terms are overlapping and the language is not

precisely directed to the question of the applicability of a

given term in the context of a larger operation. To the extent

53a

any congressional "intent" can be discerned from this

language, it would appear that the listing of overlapping,

illustrative terms was intended to enlarge, rather than to

confine, the scope of the agency's power to regulate

particular sources in order to effectuate the policies of the

Act.

FN34. The argument based on the text of §173, which

defines the permit requirements for nonattainment areas, is a

classic example of circular reasoning. One of the permit

requirements is that "the proposed source is required to

comply with the lowest achievable emission rate" (LAER).

Although a State may submit a revised SIP that provides for

the waiver of another requirement -- the "offset condition" --

the SIP may not provide for a waiver of the LAER condition

for any proposed source. Respondents argue that the

plantwide definition of the term "source" makes it

unnecessary for newly constructed units within the plant to

satisfy the LAER requirement if their emissions are offset by

the reductions achieved by the retirement of older equipment.

Thus, according to respondents, the plantwide definition

allows what the statute explicitly prohibits -- the waiver of

the LAER requirement for the newly constructed units. But

this argument proves nothing because the statute does not

prohibit the waiver unless the proposed new unit is indeed

subject to the permit program. If it is not, the statute does

not impose the LAER requirement at all and there is no need

to reach any waiver question. In other words, §173 of the

statute merely deals with the consequences of the definition

of the term "source" and does not define the term.

Legislative History

In addition, respondents argue that the legislative history and

policies of the Act foreclose the plantwide definition, and

that the EPA's interpretation is not entitled to deference

54a

because it represents a sharp break with prior interpretations

of the Act.

Based on our examination of the legislative history, we agree

with the Court of Appeals that it is unilluminating. The

general remarks pointed to by respondents "were obviously

not made with this narrow issue in mind and they cannot be

said to demonstrate a Congressional desire....". Jewell Ridge

Coal Corp. v. Mine Workers, 325 U.S. 161, 168-169, 65

S.Ct. 1063, 1067-1068, 89 L.Ed. 1534 (1945). Respondents'

argument based on the legislative history relies heavily on

Senator Muskie's observation that a new source is subject to

the LAER requirement. [FN35] But the full statement is

ambiguous and like the text of §173 itself, this comment

does not tell us what a new source is, much less that it is to

have an inflexible definition. We find that the legislative

history as a whole is silent on the precise issue before us. It

is, however, consistent with the view that the EPA should

have broad discretion in implementing the policies of the

1977 Amendments.

FN35. See supra, at 2787. We note that Senator Muskie was

not critical of the EPA's use of the "bubble concept" in one

NSPS program prior to the 1977 amendments. See Ibid.

More importantly, that history plainly identifies the policy

concerns that motivated the enactment; the plantwide

definition is fully consistent with one of those concerns -- the

allowance of reasonable economic growth -- and, whether or

not we believe it most effectively implements the other, we

must recognize that the EPA has advanced a reasonable

explanation for its conclusion that the regulations serve the

environmental objectives as well. See supra, at 2789-2790,

and n. 29; see also supra, at 2788, n. 27. Indeed, its

reasoning is supported by the public record developed in the

55a

rulemaking process, [FN36] as well as by certain private

studies. [FN37]

FN36. See, for example, the statement of the New York

State Department of Environmental Conservation, pointing

out that denying a source owner flexibility in selecting

options made it "simpler and cheaper to operate old, more

polluting sources than to trade up....". App. 128-129.

FN37. "Economists have proposed that economic incentives

be substituted for the cumbersome administrative-legal

framework. The objective is to make the profit and cost

incentives that work so well in the marketplace work for

pollution control.... [The 'bubble’ or ‘netting’ concept] is a

first attempt in this direction. By giving a plant manager

flexibility to find the places and processes within a plant that

control emissions most cheaply, pollution control can be

achieved more quickly and cheaply." L. Lave & G. Omenn,

Cleaning Air: Reforming the Clean Air Act 28 (1981)

(footnote omitted).

Our review of the EPA's varying interpretations of the word

"source" -- both before and after the 1977 Amendments --

convinces us that the agency primarily responsible for

administering this important legislation has consistently

interpreted it flexibly -- not in a sterile textual vacuum, but in

the context of implementing policy decisions in a technical

and complex arena. The fact that the agency has from time

to time changed its interpretation of the term "source" does

not, as respondents argue, lead us to conclude that no

deference should be accorded the agency's interpretation of

the statute. An initial agency interpretation is not instantly

carved in stone. On the contrary, the agency, to engage in

informed rulemaking, must consider varying interpretations

and the wisdom of its policy on a continuing basis.

Moreover, the fact that the agency has adopted different

56a

definitions in different contexts adds force to the argument

that the definition itself is flexible, particularly since

Congress has never indicated any disapproval of a flexible

reading of the statute.

Significantly, it was not the agency in 1980, but rather the

Court of Appeals that read the statute inflexibly to command

a plantwide definition for programs designed to maintain

clean air and to forbid such a definition for programs

designed to improve air quality. The distinction the court

drew may well be a sensible one, but our labored review of

the problem has surely disclosed that it is not a distinction

that Congress ever articulated itself, or one that the EPA

found in the statute before the courts began to review the

legislative work product. We conclude that it was the Court

of Appeals, rather than Congress or any of the

decisionmakers who are authorized by Congress to

administer this legislation, that was primarily responsible for

the 1980 position taken by the agency.

Policy

The arguments over policy that are advanced in the parties’

briefs create the impression that respondents are now waging

in a judicial forum a specific policy battle which they

ultimately lost in the agency and in the 32 jurisdictions

opting for the "bubble concept," but one which was never

waged in the Congress. Such policy arguments are more

properly addressed to legislators or administrators, not to

judges. [FN38]

FN38. Respondents point out if a brand new factory that will

emit over 100 tons of pollutants is constructed in a

nonattainment area, that plant must obtain a permit pursuant

to §172(b)(6) and in order to do so, it must satisfy the §173

conditions, including the LAER requirement. Respondents

57a

argue if an old plant containing several large emitting units is

to be modernized by the replacement of one or more units

emitting over 100 tons of pollutant with a new unit emitting

less--but still more than 100 tons -- the result should be no

different simply because "it happens to be built not at a new

site, but within a pre-existing plant." Brief for Respondents

4.

In these cases, the Administrator's interpretation represents a

reasonable accommodation of manifestly competing interests

and is entitled to deference: the regulatory scheme is

technical and complex, [FN39] the agency considered the

matter in a detailed and reasoned fashion, [FN40] and the

decision involves reconciling conflicting policies. [FN41]

Congress intended to accommodate both interests, but did

not do so itself on the level of specificity presented by these

cases. Perhaps that body consciously desired the

Administrator to strike the balance at this level, thinking that

those with great expertise and charged with responsibility for

administering the provision would be in a better position to

do so; perhaps it simply did not consider the question at this

level; and perhaps Congress was unable to forge a coalition

on either side of the question, and those on each side decided

to take their chances with the scheme devised by the agency.

For judicial purposes, it matters not which of these things

occurred.

FN39. See e.g., Aluminum Co. of America v. Central

Lincoln Peoples' Util. Dist., 467 U.S., at 390, 104 S.Ct., at

2480 (1984). ?

FN40. See SEC v. Sloan, 436 U.S., at 117, 98 S.Ct., at 1711;

Adamo Wrecking Co. v. United States, 434 U.S. 275, 287, n.

5. 98 S.Ct. 566, 574. n. 5, 54 L.Ed.2d 538 (1978); Skidmore

v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89

L.Ed. 124 (1944).

58a

FN41. See Capital Cities Cable, Inc. v. Crisp, 467 U.S. at

699-700, 104 S.Ct. at 2700-2701; United States v. Shimer,

367 U.S. 374, 382. 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908

(1961).

Judges are not experts in the field, and are not part of either

political branch of the Government. Courts must, in some

cases, reconcile competing political interests, but not on the

basis of the judges’ personal policy preferences. In contrast,

an agency to which Congress has delegated policy-making

responsibilities may, within the limits of that delegation,

properly rely upon the incumbent administration's views of

wise policy to inform its judgments. While agencies are not

directly accountable to the people, the Chief Executive is,

and it is entirely appropriate for this political branch of the

Government to make such policy choices -- resolving the

competing interests which Congress itself either

inadvertently did not resolve, or intentionally left to be

resolved by the agency charged with the administration of

the statute in light of everyday realities.

When a challenge to an agency construction of a statutory

provision, fairly conceptualized, really centers on the

wisdom of the agency's policy, rather than whether it is a

reasonable choice within a gap left open by Congress, the

challenge must fail. In such a case, federal judges -- who

have no constituency -- have a duty to respect legitimate

policy choices made by those who do. The responsibilities

for assessing the wisdom of such policy choices and

resolving the struggle between competing views of the public

interest are not judicial ones: "Our Constitution vests such

responsibilities in the political branches." TVA v. Hill, 437

U.S. 153, 195, 98 S.Ct. 2279, 2302, 57 L.Ed.2d 117 (1978).

59a

We hold that the EPA's definition of the term "source" is a

permissible construction of the statute which seeks to

accommodate progress in reducing air pollution with

economic growth. "The Regulations which _ the

Administrator has adopted provide what the agency could

allowably view as ... [an] effective reconciliation of these

twofold ends...." United States v. Shimer, 367 U.S.. at 383.

81 S.Ct., at 1560.

The judgment of the Court of Appeals is reversed.

It is so ordered.

Justice MARSHALL and Justice REHNQUIST took no part

in the consideration or decision of these cases.

Justice O'CONNOR took no part in the decision of these

cases.

60a

APPENDIX H

COMMUNITY HOSPITAL OF CHANDLER,

INC., an Arizona Corporation,

d/b/a Chandler Regional Hospital,

Plaintiff-Appellant,

V.

Louis W. SULLIVAN, M.D., in his official

capacity as Secretary of the United

States Department of Health and Human Services,

Defendant-Appellee.

No. 90-16331.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Feb. 11, 1992.

Decided May 4, 1992.

As Amended July 10, 1992.

Hospital sought review of administrative decision by

Health Care Finance Administration determining _ that

hospital was not entitled to Medicare reimbursement

payment under new "federal" rate. The United States District

Court for the District of Arizona, Earl H. Carroll, J., 744

F.Supp. 203, granted motion for summary judgment by

Secretary of Health and Human Services. Hospital appealed.

The Court of Appeals, D.W. Nelson, Circuit Judge, held that:

(1) Department's determination that new state-of-the-art

facility to which hospital's operations had been transferred

was not a "new hospital" within meaning of regulation did

not frustrate congressional intent to ease hospitals’ transition

6la

from cost-based reimbursement to Prospective Payment

System (PPS); (2) Medicare Act definition of "hospital" and

provisions dealing with PPS reimbursement anticipated that

hospital could be "facility" for some purposes and

"institution for others"; and (3) Secretary should have

adjusted hospital's base year costs to take into consideration

the radical shift in its operating costs.

Reversed and remanded.

[1] FEDERAL COURTS k776

170Bk776

District court's grant of summary judgment is reviewed de

novo.

[2] ADMINISTRATIVE LAW AND PROCEDURE k386

1SAk386

Agency's regulations must be consistent with overall intent

behind statute.

[3] SOCIAL SECURITY AND PUBLIC WELFARE

k241.10

356Ak241.10

Determination of Secretary of Health and Human Services,

that new state-of-the- art. facility to which hospital's

operations were transferred was_not a "new hospital" within

meaning of regulation for Medicare reimbursement purposes,

did not frustrate congressional intent to ease hospit

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