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Marchers come from across the country on the anniversary of Roe v. Wade to peacefully march to the Supreme Court steps.
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Lawyers argue hospital reimbursements and pollution in Supreme Court

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WASHINGTON - The Supreme Court said Tuesday that the United States must pay when it permanently damages property as a result of floods created when water is released from upstream dams.

The case, Arkansas Game and Fish Commission v. United States, will be returned to a lower court to resolve the issue of damages.

The court ruled previously that temporary flooding does not constitute a violation of the taking clause, part of the Fifth Amendment to the Constitution. It prohibits the government from taking property without paying for it.

Justice Ruth Bader Ginsburg, writing for a unanimous court, said, “No magic formula

enables a court to judge, in every case, whether a given government interference with property is a taking.”

But in this instance, Ginsburg wrote, the government changed the patterns of its seasonal release of water, turning the forest into a swamp.

Justice Elena Kagan did not take part in the case.

Following the decision, the Court heard arguments in two cases. In one, hospitals claim the government underpaid them for treating Medicare patients and must make up the difference.

The other case alleges that Los Angeles County Flood Control District is contributing too much pollution to the Los Angeles and San Gabriel Rivers, in violation of a permit.

Sebelius v. Auburn

Hospitals submit their claims for treating Medicare patients to an independent board, which decides how much the government should pay.

In this case, the Auburn Regional Medical Center and several other hospitals allege the Provider Reimbursement Review Board did not not reimburse them in full from 1987 to 1994. The law gives hospitals 180 days to appeal.

Auburn and a group of other hospitals are seeking a hearing with the board to ask it to issue a notice that the government should reimburse them. However, it has been more than 10 years since the 180-day deadline expired.

Only the secretary of Health and Human Services can grant an extension. But Secretary Kathleen Sebelius declined to review the case. 

Justice Stephen Breyer said perhaps this statute gives HHS a degree of leeway, but he asked if Congress intended to give the secretary that much authority when it enacted the 180-day time limit.

If Congress did intend for leeway to be on the side of the government, whatever decision the agency makes would be final, meaning the hospitals could not file a lawsuit.

John Manning, professor at Harvard Law School and the independent lawyer asked to present information in this case, said Congress created two separate deadlines. Patients, or beneficiaries, have six months to appeal, and providers, or hospitals, have 180 days.

“There is a fundamental difference in the way Congress treated these two sets of deadlines,” Manning said. “And the fundamental difference is that Congress explicitly gave the secretary authority, discretion, to extend the deadline for beneficiaries. It gave no such discretion to extend the deadline for providers.”

Edwin Kneedler, deputy solicitor general for the Department of Justice representing Sebelius, said the hospitals had accepted a regulation that gives them three years to address possible fraud or anything else that would be valid.

“Whatever label one attaches, jurisdiction, claims processing, mandating, it's absolutely clear that from the outset of this program the secretary understood and implemented the 180-day time limit as limiting the board's authority,” Kneedler said. “It says an appeal shall be dismissed if it's not filed within 180-days. No extension shall be granted if requested after, after three years.”

Los Angeles County Flood Control District v. Natural Resources Defense Council

In the second case, the National Resources Defense Council alleges that the Los Angeles County Flood Control District is violating pollution permit laws related to storm water runoff in the Los Angeles basin.

The district argued it was not solely responsible for the pollution. Other pollutants enter the river from upstream and outside the district’s jurisdiction.

The pollutant sources are difficult to trace. Los Angeles County and 84 separate municipalities have their own storm water systems that run into the district’s MS4 (Municipal Separate Storm Sewer Systems). MS4 does not treat storm water, which can contain pollutants such as sediment, used motor oil, fertilizer and pesticide runoff.

The district checks water quality at four monitoring stations. Reports over several years show hundreds of instances when pollution amounts exceeded the amounts allowed by permits.

Aaron Colangelo, the lawyer representing the Natural Resources Defense Council, argued that once there is a violation, all the towns within the jurisdiction of the permit are liable. If they are liable, the city of Los Angeles and the towns in the district are responsible for addressing the problem.

Justice Anthony M. Kennedy disagreed.

“What I’m taking away from your argument is that once there is a violation, all the permittees are liable,” Kennedy said. “That just can’t be.”

“It can be, your honor,” Colangelo said, “and that’s the – that’s the solution that the permit works out, and that the permittees negotiated for in advance.”

Chief Justice John G. Roberts Jr. said the permit laws strike him as a “little bit circular.” He said the district has the responsibility to carry out inspection and surveillance and monitoring to ensure it complies with the permit, but the district cannot identify where the pollutants are coming from and has not taken action to address the problem. 

Timothy Coates, the lawyer representing the district, said the permit terms say that each permittee is responsible only for its own storm water and pollutants.

The court is expected to rule in these cases by summer.

Reach reporter Kristopher Rivera at or 202-326-9865. SHFWire stories are free to any news organization that gives the reporter a byline and credits the SHFWire.

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