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January 23, 2001


The opinion of the court was delivered by: McLAUGHLIN, District Judge.


On June 5, 2000, this Court entered an Opinion and Order ("the Opinion") on cross-motions for summary judgment granting Plaintiff Bradford Hospital's motion and denying Defendant Shalala's motion. Bradford Hospital v. Shalala, 108 F. Supp.2d 473 (W.D.Pa. 2000). Presently before the Court is Defendant's Motion to Amend Judgment, timely filed pursuant to Fed.R.Civ.P. 59(e). For the reasons that follow, Defendant's motion is denied.


A motion to alter or amend judgment must be filed no later than 10 days after entry of judgment. Fed.R.Civ.P. 59(e). "The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 476 U.S. 1171, 106 S.Ct. 2895, 90 L.Ed.2d 982 (1986). Proper motions for reconsideration rest on one of three grounds: "(1) an intervening change in controlling law; (2) the availability of new evidence [not available previously]; [or] (3) the need to correct clear error [of law] or prevent manifest injustice." North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995). A motion for reconsideration may not be used to present new legal theories or arguments that could have been made in support of the first motion. McNeal v. Maritank Philadelphia, Inc., No. Civ. A. 97-0890, 1999 WL 80268 (E.D.Pa. Jan. 29, 1999). The motion before us rests on the first ground. Defendant asserts that Becton Dickinson & Co. v. Wolckenhauer, 215 F.3d 340 (3d Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 761, 148 L.Ed.2d 663 (2001) (No. 00-530), decided the day after our opinion was entered, constitutes "intervening and controlling law that is both instructive and favorable to the Secretary's position." Defendant's Motion to Amend Judgment and Memorandum in Support Thereof at 1.


A. Becton Dickinson

In Becton Dickinson, an employer brought a wrongful levy action against the IRS following the levy of pension funds belonging to Wolckenhauer, its employee, who had defrauded the employer and committed tax violations. Becton Dickinson, 215 F.3d 340, 340-343 (3d Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 761, 148 L.Ed.2d 663 (2001) (No. 00-530). The employer argued that an order of restitution issued by a district court in Wolckenhauer's criminal case gave its claim priority over the federal tax lien, and that the nine month time limitation applicable to wrongful levy actions should be equitably tolled because the restitution order was not made until after this period had expired. Id. at 342-343. The district court granted summary judgment in favor of the IRS, holding that the 26 U.S.C. § 6532(c) ("section 6532(c)") time limitation could be equitably tolled, but that the facts of the case did not give rise to an instance in which the period should be equitably tolled. Id. at 343 n. 7. The Third Circuit remanded the case, holding that the time limitation is a jurisdictional bar that cannot be equitably tolled. Id. at 354. The Court stated that to determine whether a limitations period is a statute of limitations subject to equitable tolling or a jurisdictional bar, it looks to "congressional intent by considering the language of the statute, legislative history, and statutory purpose." Id. at 345 (quoting Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 618 (3d Cir. 1998)). Finding that the Supreme Court had provided considerable guidance on this issue in Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), in which the Court held that a Title VII provision was subject to equitable tolling, and United States v. Brockamp, 519 U.S. 347, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997), in which the Court held that a tax provision was not subject to equitable tolling, the Third Circuit outlined three reasons for its conclusion that the limitation was more similar to the Brockamp provision than to the Irwin provision.

B. Application of Becton Dickinson to Our Case

For several reasons, we have considerable doubt as to whether Becton Dickinson controls our case. Firstly and most importantly, the context in which we applied the doctrine and the practical result in this case are significantly different from the contexts and potential results in Becton Dickinson and Brockamp. We applied the doctrine pursuant to a request to set aside arbitrary and capricious action under 42 U.S.C. § 1395oo(f), which incorporates by reference the Administrative Procedures Act standard of review. Practically, the result of our application is that Defendant's refusal to consider Plaintiff's redetermination request is set aside. In our Opinion, we determined that Defendant's interpretation of the Medicare regulations such that hospitals were required to submit redetermination requests within the period prescribed by 42 C.F.R. § 412.328(f)(1)(iii) even when they had not received an initial determination from an intermediary as prescribed by 42 C.F.R. § 412.302(c)(1)(vii)(B) was arbitrary and capricious, and consequently that Defendant's refusal to consider Plaintiff's redetermination request was arbitrary and capricious. See Bradford Hospital, 108 F. Supp.2d at 486. Unlike Becton Dickinson and Brockamp, the application of equitable tolling in our case does not expand the government's ability to be sued. Thus, although we effectively "tolled" a limitations period, we in fact did nothing more than set aside Defendant's arbitrary and capricious action pursuant to an independently existing statutory basis timely asserted by Plaintiff.

Secondly, unlike the statutory provisions at issue in Becton Dickinson, Brockamp and Irwin, 42 C.F.R. § 412.328(f)(1)(iii) does not establish a limitations period for bringing suits against the government and therefore, applying equitable tolling to the provision does not implicate sovereign immunity. The Supreme Court in Irwin and the Third Circuit in Becton Dickinson relied in arguably large part on the extent to which applying equitable tolling to the government would broaden a congressional waiver of sovereign immunity. Because sovereign immunity is not implicated in this case, the rationale of these cases has questionable, if any, application.

Finally, applying Becton Dickinson to this case is troublesome because the provision at issue in our case is a regulation and not a statute. The Becton Dickinson framework is a mechanism for ascertaining congressional intent, and it is not clear to us that Defendant's intent is an equivalently decisive factor in this instance. See Becton Dickinson, 215 F.3d at 345. Although great deference is generally afforded to an agency's interpretation of its own regulations, in construing an ambiguous regulation, we examine whether an agency's interpretation is compatible with the intent of Congress. See Sekula v. Federal Deposit Ins. Co., 39 F.3d 448, 453 (3d Cir. 1994). Because Defendant promulgates regulations within the confines of a congressionally established scheme that affords judicial review of her actions, we find that her intent as to whether equitable tolling applies to 42 C.F.R. § 412.328(f)(1)(iii) should be considered in conjunction with Congress' intent.

Notwithstanding these reservations, both parties have briefed and argued the issue as if Becton Dickinson controls and as if Defendant's intent is analogous to congressional intent. We find that even assuming the parties are correct, our Opinion remains valid. We consider each of the Becton Dickinson factors under the parties' assumptions in turn.

1. Suits Brought Only Against the Government

In Becton Dickinson, the Third Circuit first determined that section 6532(c) was not subject to Irwin's rebuttable presumption of equitable tolling because the provision only applied to suits brought against the government. Becton Dickinson, 215 F.3d at 348-349. The Court found that, compared to the provision at issue in Irwin, which applied equally to suits brought against the government and suits brought against private parties, applying equitable tolling to section 6532(c) would amount to a far greater broadening of the sovereign immunity waiver. Id. at 349. For this reason, the Court held that Irwin's rebuttable presumption, "`making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private ...

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