Glibowski v. United States Office of Personnel Management

          MEMORANDUM OPINION AND ORDER

          M. CHRISTINA ARMIJO, CHIEF UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on Plaintiffs' Motion for Reconsideration of the Opinion Entered 9/20/06 [Doc. 66');">66');">66');">66]. The Court has considered the parties' submissions, the relevant law, and has otherwise been fully advised in the matter. For the following reasons, the Court hereby DENIES the Motion.

         BACKGROUND

         The parties are familiar with the background of this case, and thus the Court will not address it in detail. In short, Plaintiffs, a married couple, were aggressively treated for Lyme disease by Dr. Carol Ann Ryser in 2006 and 2007. [Doc. 3');">23');">3');">23');">3');">23');">3');">23, pp. 5-7, 1');">17] Their insurance carrier, and subsequently the Office of Personnel Management (OPM), denied payment for many tests and treatments ordered by Dr. Ryser on the grounds that they were not medically necessary. [Doc. 3');">23');">3');">23');">3');">23');">3');">23, p. 2');">p. 2] This Court entered a Memorandum Opinion and Order in December, 201');">13, in relevant part concluding that OPM failed to state why it rejected the aggressive treatment Plaintiffs received for Lyme disease, which was consistent with International Lyme and Associated Diseases Society (ILADS) Guidelines, which were a part of the record. [Doc. 3');">23');">3');">23');">3');">23');">3');">23, p. 60');">p. 60] Absent from the record was evidence supporting the conclusion that Plaintiffs' tests and treatments did not meet the criteria for being medically necessary, i.e., that they were inconsistent with standards of good medical practice in the United States. [Doc. 3');">23');">3');">23');">3');">23');">3');">23, pp. 60');">p. 60-61');">1] Accordingly, the Court remanded the case to OPM for OPM to “develop a record which indicates the standards of good practice in the United States in sufficient detail to make an informed, reasoned decision about whether or not Dr. Ryser's treatment conformed to that standard.” [Doc. 3');">23');">3');">23');">3');">23');">3');">23, p. 61');">1');">p. 61');">1]

         In October, 201');">15, OPM issued its second Final Decision, again denying benefits for many treatments as not medically necessary. Plaintiffs filed a Motion to Enforce, and argued that the October 201');">15 Final Decision did not comply with the Court's December 201');">13 Memorandum Opinion and Order. [Doc. 45; Doc. 49] The Court granted-in-part and denied-in-part Plaintiffs' Motion to Enforce on September 20, 201');">16. [Doc. 65] On October 1');">17, 201');">16, Plaintiffs filed the present Motion for Reconsideration of the Opinion Entered 9/20/201');">16. [Doc. 66');">66');">66');">66] Additional background, as necessary, is set forth below.

         ANALYSIS

         Standard of Review

         Rule 59(e) provides for motions to “alter or amend” a judgment if the motion is filed within twenty-eight days of the judgment. Fed.R.Civ.P. 59(e). Although a final judgment consistent with Rule 58 was not entered in this case, Plaintiff's Motion is properly considered under Rule 59(e) because the Memorandum Opinion and Order at issue disposed of all issues and remanded the case. [Doc. 65, 3');">p. 3');">3');">p. 32');">3');">p. 3');">3');">p. 32] See Wagoner v. Wagoner, 38 F.2d 1');">11');">120');">938 F.2d 1');">11');">120, 1');">11');">122-3');">23');">3');">23');">3');">23');">3');">23 (1');">10th Cir. 1');">1991');">1) (holding that, though the Court had not yet entered a judgment, a motion to reconsider an order that “dismissed plaintiff's complaint with prejudice” was “properly deemed filed pursuant to Rule 59(e)”); Hilst v. Bowen, 874 F.2d 725');">874 F.2d 725, 726 (1');">10th Cir. 1');">1989) (stating that a motion to alter judgment may be filed under Rule 59 “before a formal judgment has been entered” under Rule 58); but cf. Trujillo v. Bd. of Educ. of Albuquerque Pub. Sch., 21');">12 F.App'x 760, 765 (1');">10th Cir. 2007) (unpublished decision) (stating that the district court has the discretion to revise its interlocutory rulings, including an order granting summary judgment for the last remaining defendant, prior to entry of a judgment, without applying the stricter standards of Rule 59(e)).

         “Rule 59(e) relief is available in limited circumstances, including [when there is] ‘(1');">1) an intervening change in the controlling law, (2) . . . new evidence previously [which was] unavailable, and (3) the need to correct clear error or prevent manifest injustice.'” Hayes Family Trust v. State Farm Fire & Cas. Co., 845 F.3d 997');">845 F.3d 997, 1');">1004 (1');">10th Cir. 201');">17) (quoting Servants of the Paraclete v. Does, 3d 1');">1005');">204 F.3d 1');">1005, 1');">101');">12 (1');">10th Cir. 2000)). “[A] motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law. . . . It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing.” Servants of the Paraclete, 204 F.3d at 1');">101');">12 (internal citations omitted).

         Discussion

         Plaintiffs primarily argue that OPM did not fulfill its duty, as set forth in Gunderson v. United States Department of Labor, 1');">1 F.3d 1');">101');">13');">601');">1 F.3d 1');">101');">13, 1');">1022-3');">23');">3');">23');">3');">23');">3');">23 (1');">10th Cir. 201');">10), to provide an analysis and reason for favoring one scientific theory over the other. [Doc. 66');">66');">66');">66, 3');">p. 3');">3');">p. 3] In particular, Plaintiffs argue that OPM's October 201');">15 Final Decision “completely fails to mention the opposing view, particularly the updated 201');">14 ILADS Guidelines.” [Doc. 66');">66');">66');">66, 3');">p. 3');">3');">p. 3] Plaintiffs argue that the “Court should have required OPM to discuss the two competing approaches to IV [intravenous] treatment of Lyme disease.” [Doc. 66');">66');">66');">66, p. 4]

         This argument simply rehashes an argument Plaintiffs made previously. In their Reply brief, Plaintiffs argued, inter alia, that OPM “refuses to acknowledge the existence of chronic long-term Lyme disease or the ILADS Guidelines, and therefore the medical necessity for the testing or treatment of any such disease.” [Doc. 49, p. 4] Accordingly, Plaintiffs' argument in the present motion is an inappropriate attempt to “revisit issues already addressed, ” and thus this argument is not a basis for relief under Rule 59(e). Servants of the Paraclete, 204 F.3d at 1');">101');">12.

         Plaintiffs argue that OPM “failed to even include or mention the submittal of the significant, published, highly researched [ILADS] Guidelines, which replaced the IDSA [Infectious Disease Society of America] guidelines, upon which OPM relies, at the National Guidelines Center.” [Doc. 66');">66');">66');">66, p. 6] Plaintiffs submit that they sent OPM a document identifying a link to the ILADS Guidelines on September 25, 201');">15. [Doc. 66');">66');">66');">66, p3');">p. 3');">3');">p. 3-4; Doc. 66');">66');">66');">66-1');">1, 3');">p. 3');">3');">p. 3] Though Plaintiffs made this argument prior to the Court issuing its Memorandum Opinion and Order, the Court did not address the argument and thus the Court will construe this argument as one falling within the category of being made “to correct clear error or prevent manifest injustice.” Servants of the Paraclete, 204 F.3d at 1');">101');">12.

         Gunderson sets the standard which OPM was required to meet in determining whether the treatments were medically necessary. Gunderson, 601');">1 F.3d at 1');">1022. “[C]ourts generally afford [deference] to agency action that implicates scientific and technical judgments within the scope of agency expertise. . . . They have a corresponding obligation to use that skill when evaluating technical evidence.” Id. (internal quotation marks, citations and emphasis omitted). “[C]oncomitant with the [Administrative Law Judge's] duty to resolve all conflicts in the medical evidence is the responsibility to provide some ...