Opinion
1:01-CV-0796
May 9, 2002
MEMORANDUM OPINION
I. INTRODUCTION
Currently before the Court is Defendants Tommy G. Thompson, in his official capacity as Secretary of Health and Human Services, Thomas A. Scully, in his official capacity at Administrator of the Centers for Medicare and Medicaid Services, The United States Department of Health and Human Services, and the Centers for Medicare and Medicaid Services' (collectively Defendants") Motion to Dismiss [Document #5] which seeks to dismiss all of Plaintiffs North Carolina Association of County Commissioners (the "NCACC"), Caldwell County, North Carolina, and Forsyth County, North Carolina's (collectively "Plaintiffs") claims for lack of subject matter jurisdiction. For the reasons explained below, Defendants' Motion to Dismiss is DENIED. Also before the Court is Plaintiffs' Motion to Strike [Document #14] which seeks to strike the Notice of Rulemaking [Document #13] filed by Defendants on March 8, 2002. For the reasons explained below, Plaintiffs' Motion to Strike is DENIED.
II. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs in this action are the NCACC, and two counties within the State of North Carolina, Caldwell County and Forsyth County. The NCACC is an association that provides information, assistance, and other services to its members, the one hundred counties of the State of North Carolina. Many of the NCACC's member counties, including Caldwell and Forsyth, provide ambulance services to Medicare patients, and receive reimbursement through the Medicare program for the provision thereof. At the time the instant case was filed, the ambulance services relevant to this suit were reimbursed on a "reasonable charge" basis. Depending on location, however, there are several billing methods used throughout the country, giving many interpretations to the term "reasonable charge." In order to address this concern Congress passed the Balanced Budget Act of 1997 (the "BBA"), which amended the Social Security Act to provide for the implementation of a national fee schedule to cover the payment of ambulance services. The BBA provided that the national fee schedule was to be issued as an administrative rule, promulgated by Defendants through a negotiated rulemaking process. The BBA further provided that the phase-in period for the new rule — and consequently, the national fee schedule — was set to begin on January 1, 2000.
As Defendants indicated in their Memorandum in Support of Defendants' Motion to Dismiss, ambulance services are reimbursed under Part B of the Medicare program. According to Defendants, the "reasonable charge" for ambulance services paid under Part B is determined by the lowest of the customary, prevailing, actual, or inflation indexed charges. In addition to ambulance services, Part B also authorizes payment for services such as physician care, clinical laboratory tests and covered items such as durable medical equipment. Part A of the Medicare program, on the other hand, authorizes payment for certain inpatient hospital treatments and similar services, including skilled nursing home care. Unlike the "reasonable charge" basis used under Part B, however, reimbursement for Part A services is calculated using a "reasonable cost" analysis.
According to Defendants, the provision of a national fee schedule was included under the BBA for the additional purpose of controlling increases in ambulance expenses under Medicare by "linking payments to the types of services required by the beneficiary's condition." (Mem. Supp. Defs.' Mot. Dismiss, at 3.)
According to Plaintiffs, however, Defendants waited more than a year to even begin the negotiated rulemaking process required by the BBA. More specifically, Plaintiffs claim that Defendants' rulemaking committee did not complete its work until February 14, 2000, prompting Defendants to wait until September 12, 2000 to issue a proposed rule. Plaintiffs further claim that, even to the present date, Defendants have yet to issue a final rule that complies with the congressional mandate contained in the BBA. In an effort to force Defendants to comply with the BBA, Plaintiffs filed the instant suit, on August 22, 2001, seeking a writ of mandamus, or other mandatory injunction, ordering Defendants to issue a final rule to establish a national fee schedule with an effective date of January 1, 2000. Claiming that the Medicare statute provides the exclusive source of jurisdiction, though, Defendants filed a Motion to Dismiss [Document #5]. Pursuant to that Motion, Defendants argue that Plaintiffs have failed to satisfy the presentment and exhaustion requirements, set forth as jurisdictional prerequisites under the Medicare statute, leaving this Court without subject matter jurisdiction to hear the instant suit. See Fed. K. Civ. P.12(b)(1). As previously indicated, Defendants have also filed a Notice of Rulemaking [Document #13], which states that the Department of Health and Human Services has recently issued a final rule regarding the national fee schedule for the payment of ambulance services. See Medicare Program; Fee Schedule for Payment of Ambulance Servs. Revisions to the Physicians Certification Requirements for Coverage of Nonemergency Ambulance Servs; Final Rule, 67 Fed. Reg. 9100-9135 (Feb. 27, 2002) (to be codified at 42 C.F.R. pts. 410 414). Claiming the Notice of Rulemaking is an improper pleading, Plaintiffs filed a Motion to Strike [Document #14] which seeks to have the Notice of Rulemaking stricken from the record. The Court will now consider the merits of each of these motions. Because it concerns the Court's jurisdiction to entertain the instant suit, however, the Court will first address Defendants' Motion to Dismiss. Jones v. Am. Postal Workers Union, Nat'l, 192 F.3d 417, 422 (4th Cir. 1999) (stating that the existence of subject matter jurisdiction is a threshold issue that must be determined prior to considering the merits of a case).
Defendants have recently issued a "final rule" regarding the national fee schedule for payment of ambulance services. Plaintiffs maintain, however, that the rule does not comply with the BBA in that it only applies to ambulance services provided after April 1, 2002 and not to those provided as of January 1, 2000, the original statutory deadline established by Congress. Plaintiffs also argue that the rule is not "final" in that certain portions of the rule are still subject to comments. The Court will consider the relevance of this new rule below, in connection with Plaintiffs' Motion to Strike. Suffice it to say, however, Defendants do not claim that the recently issued rule renders the instant suit moot. Rather, Defendants state that regardless of the characterization given to the new rule, the issue of whether it should be applied retroactively so as to satisfy the congressional deadline of January 1, 2000 remains. In any event, the rule need not be further discussed at this stage because to the extent Defendants do not argue that it renders this case moot, the rule's existence does not affect the Court's jurisdiction.
III. DISCUSSION
A. Defendants' Motion to Dismiss
1. Standard of Review
With respect to a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the party seeking to invoke the Court's authority has the burden of establishing the existence of subject matter jurisdiction.Id.; Richmond, Fredericksburg Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991), cert. denied, 503 U.S. 984, 112 S.Ct. 1667, 118 L.Ed.2d 388 (1992). Where it is obvious that the Court lacks the authority to hear a matter, or where it is clear that the matter is without merit, the Court is precluded from exercising its jurisdiction and is therefore obliged to dismiss the case. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999). That is not to say, however, that the party seeking to invoke the Court's jurisdiction must establish the merits of his case at this early stage. Id. ("[A] problem may arise if the jurisdictional facts are intertwined with the merits of the dispute; if this occurs, ordinarily the entire dispute is appropriately resolved by a proceeding on the merits."). Rather — particularly when asserting a mandamus action — if the party seeking the Court's jurisdiction states "nonfrivolous allegations of the existence of the essential elements supporting a[n] . . . action, jurisdiction is established" and the Court must proceed to a consideration of the merits. In re First Fed. Say. Loan Ass'n of Durham v. Baker, 860 F.2d 135, 140 (4th Cir. 1988). With that standard in mind, the Court will now consider Plaintiffs' claim that a mandamus action is proper.
2. The Court's Jurisdiction to Entertain Plaintiff's Request for a Writ of Mandamus
The Court may not exercise jurisdiction over a meritless case because federal jurisdiction requires a party to assert a substantial federal claim. Lovern, 190 F.3d at 654. In that regard, the Fourth Circuit has stated that, similar to a dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), a court may decline to exercise its jurisdiction where it finds insufficient allegations in the pleadings. Id. In the instant case, though, Defendants do not claim that Plaintiffs have asserted a meritless case per se. Rather, Defendants argue that the sole source of jurisdiction is derived from the Medicare statute, which requires presentment of a claim and exhaustion of administrative remedies prior to seeking relief in the federal courts. As previously indicated, Defendants therefore argue that because Plaintiffs failed to take these preliminary steps, that is, presentment and exhaustion of remedies, this Court is without jurisdiction to hear their claims.
Plaintiffs also claim that jurisdiction is proper under federal question jurisdiction, 28 U.S.C. § 1331, the Administrative Procedure Act, 5 U.S.C. § 703 706, the All Writs Act, 28 U.S.C. § 1651, the Medicare Statute, 42 U.S.C. § 4O5 (g) 1395ff, and even supplemental jurisdiction, 28 U.S.C. § 1367. (Compl. [Document #1], at 3, ¶ 9.) Notably, Defendants take issue with each of these potential sources for the Court's jurisdiction; that is, of course, with the exception of Plaintiffs' claim of jurisdiction pursuant to the Medicare statute to the extent Defendants argue that the Medicare statute provides the sole source of jurisdiction for this action. (Mem. Supp. Defs.' Mot. Dismiss, at 7.) Because this Court ultimately determines that it has mandamus jurisdiction over Plaintiffs' claim, there is no need for the Court to consider Plaintiffs' alternative sources of jurisdiction.
The purpose of a writ of mandamus is to compel a division of the government to perform a duty owed to the plaintiff. See 28 U.S.C. § 1361. Specifically, § 1361 provides that "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." Id. To establish the conditions necessary for issuance of such a writ, the party seeking mandamus must show that:
1) he has a clear and indisputable right to the relief sought;
2) the responding party has a clear duty to do the specific act requested;
3) the act requested is an official act or duty;
4) there are no other adequate means to attain the relief he desires; and
5) the issuance of the writ will effect right and justice in the circumstances.United States ex rel. Rahman v. Oncology Assocs., 198 F.3d 502, 511 (4th Cir. 1999); Estate of Michael v. Lullo, 173 F.3d 503, 512-13 (4th Cir. 1999). Furthermore, "[w]here mandamus relief is sought against a public official, `the alleged duty to act [must] involve a mandatory or ministerial obligation which is so plainly prescribed as to be free from doubt.'" Lullo, 173 F.3d at 513 (quoting Baker, 860 F.2d at 138). Based on these requirements, as well as language taken from the Medicare statute, Defendants raise two distinct bases to support their claim that this Court is without jurisdiction to issue a writ of mandamus.
Defendants first basis for challenging the Court's jurisdiction to issue a writ of mandamus involves its claim that the Medicare statute provides the sole source of jurisdiction for all claims arising thereunder. The plain language of the Medicare statute, however, does not compel the conclusion reached by Defendants. Specifically, the Medicare statute provides that "[n]o action against the United States . . . or any officer or employee thereof shall be brought under section 1331 or 1346 of title 28 to recover on any claim arising under this subchapter." 42 U.S.C. § 405 (h) (incorporated into the medicare statute by 42 U.S.C. § 1395ii). Therefore, the Medicare statute precludes jurisdiction based on § 1331 (federal question jurisdiction) and § 1346 (jurisdiction where the United States is a defendant) but says nothing about mandamus jurisdiction pursuant to § 1361.
Of course, as Defendants note, the United States Supreme Court has reserved the question of whether the language of 42 U.S.C. § 405(h) should be interpreted to bar mandamus jurisdiction over cases arising under the Medicare statute. See Your Home Visiting Nurse Servs., Inc. v. Shalala, 525 U.S. 449, 456-57 n. 3, 119 S.Ct. 930, 935 n. 3, 142 L.Ed.2d 919 (1999). Nevertheless, several Circuit Courts, including the Fourth Circuit, have exercised mandamus jurisdiction over a claim arising under the Medicare statute. See, e.g., Oncology Assocs., 198 F.3d at 505-06;see also Cordobav. Massanari, 256 F.3d 1044, 1047 (10th Cir. 2001),cert. denied, 122 S.Ct. 1071, 151 L.Ed.2d 974 (2002) (allowing mandamus jurisdiction in light of 42 U.S.C. § 405 (h); Buchanan v. Apfel, 249 F.3d 485, 491-92 (6th Cir. 2001) (same). In allowing mandamus jurisdiction in light of 42 U.S.C. § 405 (h), these cases relied in part on the fact that the plain language of 42 U.S.C. § 405 (h) does not prohibit the court from considering a mandamus action under § 1361. See Cordoba, at 1047. Therefore, based on the plain language of 42 U.S.C. § 405(h), and the fact that the Fourth Circuit has applied mandamus jurisdiction over a case that arose under the Medicare statute, this Court finds that 42 U.S.C. § 405(h) does not bar the application of mandamus jurisdiction to Plaintiffs' claim.
Both Cordoba and Buchanan involved the Social Security Act rather than the Medicare statute. 42 U.S.C. § 405 (h), however, is technically a part of the Social Security Act. As noted above, it is incorporated into the Medicare statute, to the same extent it is applicable in the context of social security, by 42 U.S.C. § 1395ii. For that reason, the reasoning of Cordoba and Buchanan, as well as other similar cases not cited herein, is instructive in the context of the Medicare statute.
In further support of their claim that the Medicare statute provides the only basis for this Court's jurisdiction, Defendants argue that Plaintiffs' claim for a writ of mandamus is, in effect, a claim for increased benefits and, for that reason, should be subject to the rigors of 42 U.S.C. § 405(h). Defendants base their claim on the fact that most, if not all, claims for benefits under Medicare are routed through the administrative process under 42 U.S.C. § 405(h). Shalala v. Ill. Council on Long Term Care. Inc. 529 U.S. 1, 1, 120 S.Ct. 1084, 1087, 146 L.Ed.2d 1 (2000). In particular, Defendants argue in their Reply in Support of Defendants' Motion to Dismiss, that the United States Supreme Court cases of Ill. Council, 529 U.S. 1, 120 S.Ct. 1084, and Heckler v. Ringer, 466 U.S. 602, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) indicate that Plaintiffs' claims are tied to a claim for payments, and are therefore subject to the presentment and exhaustion requirements of the typical Medicare claim. Defendants' interpretation of Ill. Council and Heckler, however, is not persuasive.
As an initial matter, the Court notes that the decisions in bothIll. Council and Heckler involved federal question jurisdiction. In forcing the plaintiffs in those cases to undergo the administrative process, the Supreme Court had the benefit of the plain language of 42 U.S.C. § 405 (h), which clearly requires presentment and exhaustion for all claims brought pursuant to § 1331.
In Ill. Council, the Supreme Court held that a plaintiff cannot escape the requirements of 42 U.S.C. § 405 (h) by phrasing what is essentially a claim for benefits as something other than a claim for monetary relief. Ill. Council, 529 U.S. at 14, 120 S.Ct. at 1094, 146 L.Ed.2d 1. Specifically, the Supreme Court determined that claims for nonfinancial benefits, claims for program eligibility, and daims that contest a remedy — like claims for monetary benefits — are subject to the restrictions of 42 U.S.C. § 405 (h). Id. The instant case, however, involves none of the aforementioned categories of relief. Plaintiffs do not seek money, eligibility, nor any other benefit. As stated before, Plaintiffs simply seek to compel the Department of Health and Human Services to promulgate a national fee schedule for the reimbursement of ambulance services. This Court therefore finds that Plaintiffs' claim for a writ of mandamus is not impacted by the Supreme Court's ruling in Ill. Council.
A similar conclusion is warranted with respect to Heckler, where the plaintiff challenged, by way of seeking an injunction, a procedure adopted by the Secretary. The Supreme Court determined that because the injunction sought by the plaintiff involved a request for a declaration that the plaintiff's claim was reimbursable under Medicare, it was "inextricably intertwined" with a request for benefits and was subject to the jurisdictional prerequisites of § 405(h). Heckler, 466 U.S. at 614, 104 S.Ct. 2013, 2021, 80 L.Ed.2d 622. Defendants appear to argue that because the instant case also involves a request for a type of injunctive relief, this Court should follow the ruling of Heckler. The instant case, however, does not request an injunction that is tied to a request for monetary benefits. Rather, it seeks a writ of mandamus to compel the Department of Health and Human services to follow the congressional mandate set forth in the BBA. The Court is not persuaded by Defendants' argument that Plaintiffs' claim is essentially a disguised claim for monetary benefits. This Court therefore also finds that Plaintiffs' request for a writ of mandamus is not impacted by the Supreme Court's decision in Heckler. Accordingly, to the extent that Plaintiffs' claim "arises under" the Medicare statute, Defendants' suggestion that 42 U.S.C. § 405(h) precludes the application of mandamus jurisdiction is, even in light of Defendants' argument regarding Ill. Council andHeckler, without merit.
Defendants' second basis for challenging the Court's jurisdiction to issue a writ of mandamus is their claim that even if 42 U.S.C. § 405(h) does not preclude the application of mandamus jurisdiction, Plaintiffs have failed to meet the conditions necessary for the Court to issue such a writ. As indicated above, in order for this Court to issue a writ of mandamus requiring Defendants to promulgate a national fee schedule in accordance with the congressional mandate included in the BBA, Plaintiffs must demonstrate that they have a clear and indisputable right to the relief sought, that Defendants have a clear duty to promulgate the rule, that the promulgation of the rule is an official act or duty, that there are no other adequate means to attain the relief Plaintiffs desire, and that the issuance of the writ will promote justice. Oncology Assocs., 198 F.3d at 511; Lullo, 173 F.3d at 512-13. In challenging the application of mandamus jurisdiction, Defendants' sole challenge is that Plaintiffs have failed to demonstrate that there are no other adequate means to attain the relief desired. This Court, however, does not agree.
Specifically, Defendants argue that because Plaintiffs did not pursue their administrative remedies, they cannot show that there are no other adequate means to attain relief. of course, Defendants' argument is premised on the notion that the administrative process provided for by the Medicare statute is an adequate source of relief under the circumstances of the instant case. As this Court has repeatedly emphasized, however, Plaintiffs in this action are not seeking to recover any sort of benefit, monetary or otherwise. The administrative process provided under the Medicare statute, however, is configured to handle benefits requests. As Defendants readily admit, the administrative process simply does not have the authority to compel action by the Secretary of the Department of Health and Human Services, meaning that Plaintiffs cannot effectively seek the relief they desire through administrative review. This Court therefore finds, as have myriad other Courts, that the administrative process is not an adequate remedy so as to foreclose the application of mandamus jurisdiction when an agency has failed to promulgate a rule mandated by Congress. See, e.g., Nat'l Assoc. Rehab. Facilities. Inc. v. Schweiker, 550 F. Supp. 357, 362 (D.D.C. 1982) (stating that because the plaintiffs were not seeking reimbursement claims, administrative review of their claims was unavailable). Accordingly, to the extent Defendants argue that Plaintiffs cannot rely on mandamus jurisdiction due to their alleged inability to demonstrate that there is no alternative adequate source of relief, this Court is not persuaded. This Court therefore finds that, for the purpose of establishing mandamus jurisdiction, Plaintiffs have sufficiently alleged that there is no other adequate source of relief. As a result, as long as Plaintiffs have stated a reasonable basis for the satisfaction of the remaining elements for the issuance of a writ of mandamus, this Court must find that jurisdiction based on § 1361 is proper. Baker, 860 F.2d at 140 (stating that "[i]t is . . . not necessary for a plaintiff in a section 1361 mandamus action to prove the merits of his case in order to establish jurisdiction" and that as long as the complaint "states nonfrivolous allegations of the existence of the essential elements supporting a mandamus action, jurisdiction is established").
Many other courts have used a similar reasoning to determine that, despite the existence of 42 U.S.C. § 405(h), a writ of mandamus is the proper format under which to compel an agency into action when it has engaged in unreasonable delay. See. e.g., In re Cal. Power Exch. Corp., 245 F.3d 1110, 1124-25 (9th Cir. 2001); In re Bluewater Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000); Towns of Wellesley. Concord. Norwood. Mass. v. Fed. Energy Regulatory Comm'n, 829 F.2d 275, 277 (1st Cir. 1987). Not all of the aforementioned cases actually grant a writ of mandamus. In those cases where the court did not grant relief, it noted that the agency's delay was not sufficiently egregious as to warrant the issuance of a writ. That issue, however, concerns the merits of the requested relief and is not jurisdictional in nature. Despite the ultimate outcome, in each of the cited cases the respective court exercised its jurisdiction and considered the merits of the plaintiffs' mandamus actions, making the cases persuasive authority with respect to subject matter jurisdiction.
Defendants argue that Plaintiffs' reliance on Schweiker is "misplaced" because the case predates the United States Supreme Court's decisions in Ill. Council and Heckler. As this Court previously indicated, however, Ill. Council and Heckler do not impact the availability of mandamus jurisdiction under the circumstances of the instant case.
Although Defendants only challenge the fourth element of mandamus jurisdiction, the Court notes that Plaintiffs have adequately demonstrated that the remaining elements for mandamus jurisdiction can be met as well. For example, with respect to the first element of mandamus jurisdiction, that Plaintiffs demonstrate a right to the relief sought, this Court notes that Plaintiffs have the responsibility of providing ambulance services across North Carolina. To the extent that the national fee schedule will simplify the reimbursement process under Medicare, and Plaintiffs argue that the delay of Defendants has hampered this simplification, Plaintiffs have shown that they are entitled to the relief sought. As to the second element, that Defendants have a clear duty to carry out the act requested, the Court notes that pursuant to the BBA, Defendants are under a congressionally mandated obligation to promulgate and finalize a rule regarding the national fee schedule. By stating a nonfrivolous allegation that Defendants have failed to adopt a rule that complies with the congressional mandate, Plaintiffs have sufficiently demonstrated that Defendants have a duty to carry out the act requested. In considering the third element, this Court notes that because rulemaking is an official function of the agency, and the promulgation of the rule was mandated by an unambiguous act of Congress, the act requested is certainly a nondiscretionary, official duty which the Department of Health and Human Services must perform. Finally, with respect to the fifth element, that the issuance of the writ will effect some level of right and justice, this Court notes that Plaintiffs argue that their efforts to plan for the future have been thwarted by Defendants' initial delay in promulgating the national fee schedule. Without knowing the nature of the fee schedule under which they will be reimbursed, Plaintiffs cannot predict what their future expenses may be, and consequently, the delay has affected their planning for the future. In alleging that the existence of a national fee schedule will promote their future planning and will allow for better ambulance services, Plaintiffs have sufficiently demonstrated that the requested writ of mandamus will effect justice under the circumstances.
Plaintiffs Caldwell County and Forsyth County provide ambulance services directly to their citizens. Plaintiff NCACC is an association of counties within the state of North Carolina, the members of which also provide ambulance services for their citizens.
There is no need to presently address the fourth element for a mandamus action. The fourth element, that Plaintiffs demonstrate that there are no other adequate means for relief, was the only element specifically challenged by Defendants. As discussed above, this Court determined that Defendants' challenge was unpersuasive and furthermore, that the administrative process included under the Medicare statute was not an adequate source of relief. This court also concluded that, in light of Defendants' failed argument, Plaintiffs had sufficiently established that there was no other adequate source of relief.
Of course, as the Court indicated, for the limited purpose of establishing subject matter jurisdiction, it is not necessary for Plaintiffs to fully establish each of the five elements for the issuance of a writ of mandamus. In other words, Plaintiffs need not prove the merits of their claim when the sole issue before the Court is jurisdictional in nature. As long as Plaintiffs state nonfrivolous allegations of the existence of the essential elements of a mandamus action, this Court may exercise its jurisdiction. Id. As noted, Plaintiffs have sufficiently alleged the essential elements for mandamus jurisdiction. This Court therefore finds that mandamus jurisdiction pursuant to § 1361 is proper. Due to the Court's determination in this regard, and the fact that the Court does not need multiple grounds upon which to base its jurisdiction, there is no need for the Court to consider Plaintiffs' additional arguments for alternative sources of jurisdiction. Accordingly, Defendants' Motion to Dismiss for lack of subject matter jurisdiction is hereby DENIED.
B. Plaintiffs' Motion to Strike
With respect to their Motion to Strike [Document #14], Plaintiffs seek to have stricken from the record the Notice of Rulemaking [Document #13] filed by Defendants on March 8, 2002. In support of their Motion to Strike, Plaintiffs argue that the Notice of Rulemaking is both improper and irrelevant. The substance of Defendants' Notice of Rulemaking, however, simply seeks to alert the Court to the fact that the Department of Health and Human services has recently issued a rule regarding the national fee schedule for the reimbursement of expenses related to the provision of ambulance services. Instead of applying to services rendered after January 1, 2000, though, the new rule applies only to services provided after April 1, 2002. Nevertheless, it is unquestionable that the existence of a recently issued rule is highly relevant to the instant lawsuit. Consistent therewith, Defendants' Notice of Rulemaking is proper, as all litigants owe a duty to keep the Court appraised of any development that may affect the outcome of the litigation. Tiverton Bd. of License Comm'rs v. Pastore, 469 U.S. 238, 240, 105 S.Ct. 685, 686, 83 L.Ed.2d 618 (1985); United States v. Shaffer Equip. Co., 11 F.3d 450, 458 (4th Cir. 1993).
To the extent Defendants feel that the issues in this case have been narrowed by the issuance of a rule from the Department of Health and Human Services, the Court notes that they should state their position in a proper motion, and not in support of their Notice of Rulemaking. In fact, as this Court has repeatedly stated, the existence of the rule does not impact the issue of subject matter jurisdiction, presently the central issue before the Court. Nevertheless, because this case involves a request by Plaintiffs for the issuance of a writ of mandamus, the central focus of Plaintiffs' claim is the establishment of a national fee schedule. The Court therefore finds that Defendants acted properly in notifying the Court of the rule's existence. Accordingly, Plaintiffs' Motion to Strike is DENIED.
IV. CONCLUSION
For the reasons discussed above, Defendants' Motion to Dismiss for lack of sublect matter jurisdiction [Document #5] is DENIED. Also for the reasons discussed above, Plaintiff's Motion to Strike Defendants' Notice of Rulemaking [Document #14] is DENIED.
An Order consistent with this Memorandum Opinion shall be filed contemporaneously herewith.