Fresno Community Hospital, et al., Appellant, v. Donna E. Shalala, Secretary of Health and Human Services, Appellee, 18 F.3d 953 (D.C. Cir. 1994)

This cause came to be heard on appeal from the judgment of the District Court, and was briefed by counsel. The issues have been accorded full consideration by the Court and occasion no need for a published opinion. See D.C. Cir. Rule 36(b).

The statutory provision that entitles appellants to litigation interest, 42 U.S.C. § 1395oo(f) (2), directs that the interest rate be the same as the return on equity rate set by administrative regulation. That regulation, at the time appellants filed their suit, set the return on equity at one and one-half times the Federal Hospital Insurance Trust Fund rate ("FHITF"). The return on equity regulation, however, is promulgated pursuant to 42 U.S.C. § 1395x(v) (1) (B). Therefore, when Congress changed section 1395x(v) (1) (B) in the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), mandating that return on equity be equal to the FHITF rate, the litigation interest rate--which by reference was to be the same as return on equity--was also changed to be equal to the FHITF rate, effective the date COBRA became law, April 7, 1986. The fact that the agency did not change its return on equity regulation until some later time is of no consequence. It is

ORDERED and ADJUDGED, by the Court, that the judgment of the District Court is affirmed.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 41(a) (1).