overpayment suits at issue in Brockamp, they "nevertheless pose
serious administrative problems because anyone, not just the
taxpayer in question, can bring a wrongful levy suit against he
IRS." Id. at 350. The Court also noted that applying equitable
tolling to section 6532(c) would interfere with the "IRS's need
for certainty and finality when imposing a levy on the assets of
a delinquent taxpayer." Id. at 351.
We find that the administrative burden which would result from
applying equitable tolling to 42 C.F.R. § 412.328(f)(1)(iii) is
significantly less onerous than the burden that would have
resulted from applying equitable tolling to section 6532(c). In
contrast to section 6532(c) which permits anyone to pursue a
wrongful levy claim against the IRS,
42 C.F.R. § 412.302(f)(1)(iii) applies to less than five thousand hospitals.
Defendant's Motion to Amend Judgment and Memorandum in Support
Thereof at 9. Additionally, the nature of the burden is
significantly different. Rather than expanding the Secretary's
capability to be sued, applying equitable tolling to the
regulation would only expand the time period in which the
Secretary must consider the merits of hospitals' redetermination
requests. We find that this burden has a far smaller probability
of interfering with the government's functioning than an expanded
amenability to suit. Finally, unlike section 6532(c), the extent
to which the burden will materialize is largely controllable. So
long as intermediaries provide the required initial
determinations pursuant to 42 C.F.R. § 412.302(c)(1)(vii)(B),
hospitals will be unable to claim that they were prevented from
filing their redetermination requests by the inaction of an
intermediary. Any need for finality or certainty is controllable
for the same reason. Taken together, these differences materially
distinguish the underlying subject matter of
42 C.F.R. § 412.328(f)(1)(iii) from that of section 6532(c).
For the reasons stated above, we find that Becton Dickinson
does not constitute an intervening change in controlling law
rendering incorrect our decision that 42 C.F.R. § 412.328
(f)(1)(iii) is subject to equitable tolling. Initially, we
find that whether Becton Dickinson controls our case is
doubtful. Notwithstanding this reservation, we find that even if
the case does control, our Opinion remains valid.
We also find that Becton Dickinson does not require us to
reevaluate the second equitable tolling issue, whether the facts
and circumstances of our case gave rise to an instance in which
applying equitable tolling was appropriate. Becton Dickinson
did not address this issue and we do not find that it affects our
analysis on this point.
AND NOW, this ____ day of January 2001, for the reasons stated
in the accompanying Memorandum Opinion,
IT IS HEREBY ORDERED that the Defendant's Motion to Amend
Judgment [Doc. No. 20] is DENIED.