Kaiser Foundation Hospitals v. Michael O. Leavitt ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAISER FOUNDATION HOSPITALS, a 
California Nonprofit Public
Benefit Corporation, DBA Kaiser
No. 09-56200
Foundation Hospital-Anaheim,
Plaintiff-Appellant, D.C. No.
v.  2:08-cv-02129-
DDP-PJW
KATHLEEN SEBELIUS,* Secretary of
OPINION
the United States Department of
Health and Human Services,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
November 1, 2010—Pasadena, California
Filed June 15, 2011
Before: Alfred T. Goodwin and Johnnie B. Rawlinson,
Circuit Judges, and Jack Zouhary, District Judge.**
Opinion by Judge Rawlinson;
Dissent by Judge Zouhary
*Kathleen Sebelius is substituted for her predecessor, Michael O.
Leavitt, as Secretary of the Department of Health and Human Services,
pursuant to Fed. R.App.P. 43(c)(2).
**The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
8135
KAISER FOUNDATION HOSPITALS v. SEBELIUS 8137
COUNSEL
Jordan B. Keville (argued), John P. Neustadter and Nina N.
Adatia; Hooper, Lundy, & Bookman, Inc., Los Angeles, Cali-
fornia, for appellant Kaiser Foundation Hospitals.
8138 KAISER FOUNDATION HOSPITALS v. SEBELIUS
Russell W. Chittenden (argued), Leon W. Weidman and
Indira Joy Cameron-Banks; Assistant United States Attor-
neys, Los Angeles, California for appellee Kathleen Sebelius,
Secretary of the United States Department of Health and
Human Services.
OPINION
RAWLINSON, Circuit Judge:
Kaiser Foundation Hospital-Anaheim (Kaiser), a medicare
provider, appealed its notice of program reimbursement for
the fiscal year ending in 2001 to the Provider Reimbursement
Review Board (PRRB or Board), which dismissed the appeal
because Kaiser missed its deadline to file a preliminary posi-
tion paper. After the Board denied Kaiser’s motion for rein-
statement of its appeal, Kaiser filed this action. Kaiser now
appeals the district court’s order granting Sebelius’s motion
for summary judgment.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm the district court’s judgment.
I. BACKGROUND
A. Statutory and Regulatory Framework
The Medicare Act established a system of health insurance
for the aged and disabled. See 42 U.S.C. § 1395 et seq.
Eligible beneficiaries receive medical care from
“providers,” which are medical care facilities that
have entered into agreements with the Secretary to
furnish care, and the providers are then reimbursed
by the Medicare program. Part A of the Medicare
program authorizes payments for institutional care
KAISER FOUNDATION HOSPITALS v. SEBELIUS 8139
provided primarily on an inpatient basis. See 42
U.S.C. §§ 1395c-1395i-4.
Medical care facilities, such as plaintiffs, receive
reimbursement under Part A or Part B (or both) from
a “fiscal intermediary,” . . . that functions as the Sec-
retary’s agent in making payment on covered claims.
At the close of each fiscal year, a provider must sub-
mit a “cost report” to the fiscal intermediary showing
the costs it has incurred, and the appropriate portion
of such costs to be allocated to the Medicare pro-
gram during the fiscal period covered by the cost
report. 42 C.F.R. §§ 413.20, 413.24.
Irvine Med. Ctr. v. Thompson, 275 F.3d 823, 826 (9th Cir.
2002) (citations omitted).
After analyzing a provider’s cost report, the fiscal interme-
diary is to “furnish the provider . . . a written notice reflecting
the intermediary’s determination of the total amount of reim-
bursement due to the provider.” 42 C.F.R. § 405.1803(a). This
notice is commonly referred to as the Notice of Provider
Reimbursement (NPR). If a provider “is dissatisfied with the
final determination of the . . . fiscal intermediary . . . as to the
amount of total program reimbursement[,] . . .” it may obtain
a hearing, before the Provider Reimbursement Review Board.
42 U.S.C. § 1395oo(a)(1). “The Board shall have the power
to affirm, modify, or reverse a final determination of the fiscal
intermediary with respect to a cost report. . .” 42 U.S.C.
§ 1395oo(d).
The statutory requirements for appealing an intermediary’s
NPR are that the amount in controversy be at least $10,000,
and that the provider file the request for a hearing within 180
days after receiving the NPR. See 42 U.S.C. § 1395oo(a)(2)
and (3). A group of providers may appeal an NPR if (i) each
provider in the group was eligible to request a hearing, (ii) the
aggregate amount in controversy is at least $50,000, and (iii)
8140 KAISER FOUNDATION HOSPITALS v. SEBELIUS
the matters in controversy involve a common question of fact
or interpretation of law or regulations. See 42 U.S.C.
§ 1395oo(b). The Board is endowed with the power to pro-
mulgate rules and procedures “which are necessary or appro-
priate” to hear and decide these appeals. See 42 U.S.C.
§ 1395oo(e).
At all times relevant to this action, the 2002 PRRB Instruc-
tions were in effect. Pursuant to those instructions, once the
Board received a request for a hearing, it sent an “Acknowl-
edgment and Critical Due Dates” letter to both the provider
and fiscal intermediary. PRRB Instructions, Part I(C)(I). This
letter notified the provider of the due dates for the preliminary
position paper (due to the intermediary) the final position
paper (due to the Board) and placed the appeal on the Board’s
long-term calendar. See id.; see also PRRB Instructions, Part
II(B). When the provider submits its preliminary position
paper to the intermediary, it must also submit the first page to
the Board. See PRRB Instructions, Part II(B)(I). If the pro-
vider fails to submit the preliminary position paper by the due
date, “the Board will dismiss [the provider’s] appeal for fail-
ure to follow Board procedure.” Id. The provider is subject to
the same action if it fails to submit its final position paper by
the specified due date. PRRB Instructions, Part II(B)(II).
If multiple providers are eligible to bring an appeal based
on one common issue regarding a question of fact or interpre-
tation of law, regulation, or Centers for Medicare and Medic-
aid Services (CMS) ruling, then they may request an
“optional” group appeal. PRRB Instructions, Part I(B)(I)(d).
If multiple providers “are under common ownership or con-
trol and have an issue in common, [they] must file a group
appeal if the amount in controversy is $50,000 or more.” Id.
Individual providers may also join a group appeal. See PRRB
Instructions, Part I(C)(VI) and (VII).
Finally, the Board may consider requests to reinstate
appeals that were dismissed due to failure to comply with
Board procedure. See PRRB Instructions, Part I(C)(XIII)(b).
KAISER FOUNDATION HOSPITALS v. SEBELIUS 8141
B. Factual Background
On or around April 18, 2007, Kaiser received its NPR from
fiscal intermediary Mutual of Omaha Insurance Company, for
the fiscal year ending December, 2001 (FYE 2001). On Sep-
tember 21, 2007, Kaiser timely filed a request for a hearing
before the PRRB, and designated counsel for the appeal. See
42 U.S.C. § 1395oo(a)(3) (providing 180 days to file an
appeal).
Kaiser received the PRRB’s “Acknowledgment and Critical
Due Dates” letter on October 9, 2007. The letter referred Kai-
ser to the Board Instructions and set the following deadlines:
(1) February 1, 2008, for Kaiser to submit preliminary posi-
tion papers to the intermediary; (2) April 1, 2008, for the
intermediary to submit preliminary position papers to the pro-
vider; and (3) June 1, 2008, for both parties to submit final
position papers to the Board. The Board also set October,
2008, as a tentative date for the hearing. Finally, the letter
stated:
You are responsible for pursuing your appeal in
accordance with the Board’s procedures, which are
outlined in the Board’s Instructions. You must file
your position papers, regardless of any outstanding
jurisdictional challenges, motions or subpoena
requests. If you miss any of your due dates including
meeting either position paper due date, the Board
will dismiss your appeal. The Board will not send a
due date reminder.
Approximately a month after the due date for Kaiser’s pre-
liminary position paper passed, the Board advised Kaiser that
because its position paper was not submitted to the intermedi-
ary, its appeal was being dismissed. On March 4, 2008, Kaiser
petitioned the Board for reinstatement of its appeal, and
enclosed its Final Position Paper. The Board replied on March
8142 KAISER FOUNDATION HOSPITALS v. SEBELIUS
19, 2008, noting the filing of Kaiser’s final position paper that
included the following arguments for reinstatement:
-no party was prejudiced and the situation was easily
rectifiable in advance of the final position paper
deadline and the live hearing;
-the Board should allow a decision on the merits
rather than punish the Provider over a procedural
technicality;
-Federal Statutes and Regulations do not require pro-
viders to file preliminary position papers; and
-the case involves a single issue that would have
been transferred to a Common Issue Related Party
(CIRP) group.
Nevertheless, the Board denied Kaiser’s request, concluding
that it was the “Group Representative’s responsibility to
determine when a CIRP [Common Issue-Related Party] group
is required and to structure the group accordingly.” The Board
also noted that if the issue was previously briefed in the CIRP
appeal, Kaiser could have easily reproduced the applicable
arguments in a preliminary position paper for its individual
appeal. Finally, the Board explained that Kaiser failed to
transfer the individual appeal to the CIRP despite Kaiser’s
counsel’s experience in handling cases before the Board.
Kaiser subsequently filed this action against the Secretary
of the United States Department of Health and Human Ser-
vices. Kaiser moved for summary judgment and Sebelius
moved for dismissal based on lack of subject matter jurisdic-
tion, or in the alternative, for summary judgment. The district
court denied Kaiser’s motion for summary judgment and
Sebelius’s motion to dismiss, but granted Sebelius’s motion
for summary judgment. Kaiser filed a timely notice of appeal.
KAISER FOUNDATION HOSPITALS v. SEBELIUS 8143
We have jurisdiction pursuant to 28 U.S.C. § 1291 and we
affirm the district court’s judgment.
II. STANDARD OF REVIEW
“We review de novo both the district court’s grant of sum-
mary judgment and its holdings on questions of statutory
interpretation.” Phoenix Mem’l. Hosp. v. Sebelius, 622 F.3d
1219, 1224 (9th Cir. 2010) (citation omitted). When no issues
of fact are raised, and both parties move for summary judg-
ment, we review the issues raised as matters of law. See Con-
rad v. Ace Prop. & Cas. Ins. Co., 532 F.3d 1000, 1004 (9th
Cir. 2008).
Our review of the Board’s decision is governed by the
Administrative Procedure Act, see id., which provides that the
agency’s decision will be set aside only if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accor-
dance with law . . . or unsupported by substantial evidence.”
5 U.S.C. § 706(2)(A), (E). “Courts must give substantial def-
erence to the Secretary’s interpretation of Medicare reim-
bursement regulations. Under this standard of review, the
agency’s interpretation must be given controlling weight
unless it is plainly erroneous or inconsistent with the regula-
tion. In other words, we must defer to the Secretary’s interpre-
tation unless an alternative reading is compelled by the
regulation’s plain language or by other indications of the Sec-
retary’s intent at the time of the regulation’s promulgation.”
Robert F. Kennedy Med. Ctr. v. Leavitt, 526 F.3d 557, 561-
562 (9th Cir. 2008) (citations and internal quotation marks
omitted).
III. DISCUSSION1
1
Sebelius contends that the Board’s decision is not subject to judicial
review and that this court thus lacks jurisdiction to hear this appeal. How-
ever, 42 U.S.C.§ 1395oo(f)(1) expressly “gives providers the right to
obtain judicial review of any final decision of the Board, or of any rever-
sal, affirmance, or modification by the Secretary.” Loma Linda Univ. Med.
Ctr. v. Leavitt, 492 F.3d 1065, 1074 (9th Cir. 2007) (citation and internal
quotation marks omitted).
8144 KAISER FOUNDATION HOSPITALS v. SEBELIUS
A. The PRRB’s Required Submission of a Preliminary
Position Paper Does Not Violate the Medicare Act2
Kaiser asserts that the preliminary position paper require-
ment is “not necessary and appropriate to carrying out the
Board’s functions.”
[1] The Board has “full power and authority” to establish
rules and procedures for managing its caseload. 42 U.S.C.
§ 1395oo(e). Pursuant to that authority, the Board promul-
gated rules requiring the provider to submit a preliminary
position paper and a final position paper. The rules specified
that failure to submit a preliminary position paper by the due
date would lead to dismissal of the provider’s appeal. PRRB
Instructions, Part II(B)(I) (emphasis added). Although the
Ninth Circuit has yet to rule on this issue, other courts have
held that the procedural requirement of two position papers is
reasonable and necessary to the efficient administration of the
provider appeals process. See High Country Home Health,
Inc. v. Thompson, 359 F.3d 1307, 1313 (10th Cir. 2004)
(“Because we cannot say that the requirement of a second
position paper responding to the Intermediary’s preliminary
position paper is arbitrary and capricious, we decline to inval-
idate that requirement indirectly by excusing its violation.”)
(citation omitted); see also UHI, Inc. v. Thompson, 250 F.3d
993, 996-97 (6th Cir. 2001) (“Both the procedural require-
ment itself, as well as the Department’s application of it, are
reasonable and necessary to the smooth functioning of the
agency appellate process, and therefore cannot be considered
arbitrary and capricious or an abuse of agency discretion.”);
Rapid City Reg’l. Hosp. v. Sebelius, 681 F.Supp. 2d 56, 60
2
Kaiser asserts that the Board’s rules authorizing dismissals for failure
to submit preliminary position papers conflict with the long-standing fed-
eral policy codified in the Medicare Act of adjudicating claims on their
merits. As Kaiser provides no supporting authority for this contention, we
will not discuss it further. See Barapind v. Reno, 225 F.3d 1100, 1115 (9th
Cir. 2000) (declining to find merit in an argument that was not supported
by citation to legal precedent).
KAISER FOUNDATION HOSPITALS v. SEBELIUS 8145
(D. D. C. 2010) (“[T]he crafting of such procedural rules is
well within agency authority and expertise.”) (citations omit-
ted); Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 351
(4th Cir. 2001) (same).
[2] We are persuaded by the reasoning of these cases that
have upheld the procedural rules as reasonable and necessary
to the administration of the Board’s substantial caseload. The
position paper requirements assist in narrowing the issues on
appeal, see Rapid City Reg’l. Hosp., 681 F.Supp. 2d at 62;
and efficiently managing the Board’s caseload, see UHI, Inc.,
250 F.3d at 996-97. They also allow the Board to “ignore late
or improperly presented claims.” High Country Home Health,
359 F.3d at 1311.
[3] We are not swayed by Kaiser’s citation to the provi-
sions of 42 U.S.C. § 1395oo(a)(1), which grant providers the
right to request a hearing before the Board. Rather, we agree
with the Fourth Circuit that “a provider’s statutory right to a
hearing is not unduly burdened by a rule allowing dismissal
for failure to file a timely position paper.” Inova, 244 F.3d at
349.
Kaiser, like the plaintiff in Rapid City Reg’l. Hosp.,
attempts to distinguish the cases that have upheld dismissals
for failure to comply with procedural rules by arguing that the
cases involved the late filing of final position papers, which
serve a different purpose than preliminary position papers.
Kaiser asserted in its briefing and during oral argument that
preliminary position papers are pro forma documents that
were virtually ignored by the Board and intermediaries alike.
However, Kaiser failed to cite to any evidence in the record
supporting this contention. In any event, as the court in Rapid
City Reg’l. Hosp. noted, “[t]he decisions . . . do not rely on
the unique nature of a final position paper to affirm the
Board’s dismissals. Rather, the cases rely solely on the more
general proposition that legitimate procedural rules can be
relied upon to control the Board’s docket by dismissing
8146 KAISER FOUNDATION HOSPITALS v. SEBELIUS
appeals that are not timely filed.” Rapid City Reg’l. Hosp.,
681 F.Supp.2d at 61 (citations omitted). Indeed, none of the
cases even hinted that failure to file a final position paper
should be analyzed differently than failure to file a prelimi-
nary position paper.
Kaiser also urges us to hold that its failure to submit a pre-
liminary position paper had no effect on the proceedings
before the Board because Kaiser’s appeal issues were subject
to inclusion in a group appeal. At least one court has rejected
a similar argument that failure to submit a position paper did
not cause prejudice because a position paper in another case
effectively described the provider’s claims. See High Country
Home Health, 359 F.3d at 1313 (“The PRRB was under no
duty to hunt around . . . in the records for other cases[ ] in an
attempt to discern the nature of [Kaiser’s] legal claims. Even
assuming that such a hunt would have provided the PRRB
with the same information that would have been in the final
position paper . . . that does not make the Board’s dismissal
arbitrary or capricious.”). We reach the same conclusion. To
hold otherwise would require us to interject ourselves into the
inner workings of the Board’s hearing process to determine
whether the group appeal indeed “effectively described [Kai-
ser’s] claims,” as asserted by Kaiser. This we decline to do.
See Fones4All Corp. v. Fed. Commc’n. Comm’n., 561 F.3d
1031, 1033 (9th Cir. 2009) (recognizing our obligation to
defer to the expertise of administrative agencies).
B. The PRRB’s Dismissal of Kaiser’s Appeal was not Arbi-
trary or Capricious
“An agency violates the APA if it has relied on factors
which Congress has not intended it to consider, entirely failed
to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency
expertise. “ County of Los Angeles v. Leavitt, 521 F.3d 1073,
KAISER FOUNDATION HOSPITALS v. SEBELIUS 8147
1078 (9th Cir. 2008) (citation, alteration and internal quota-
tion marks omitted). “An arbitrary and capricious challenge
requires us to adhere to a narrow scope of review, wherein we
are not to substitute our judgment for that of the agency. The
agency, however, is required to examine the relevant data and
articulate a satisfactory explanation for its action including a
rational connection between the facts found and the choices
made, and we in turn must review that explanation, consider-
ing whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of
judgment.” Providence Yakima Med. Ctr. v. Sebelius, 611
F.3d 1181, 1190 (9th Cir. 2010) (citations, alteration and
internal quotation marks omitted).
[4] We review the Board’s ruling, keeping in mind the def-
erence we owe to the Board’s interpretation of its regulations
and the fact that the Instructions unambiguously stated that if
a provider failed to file a preliminary position paper, “the
Board will dismiss [the] appeal for failure to follow Board
procedure.” PRRB Instructions, Part II(B)(I). Additionally,
the PRRB’s October 9, 2007 “Acknowledgment and Critical
Due Dates” letter stated: “You are responsible for pursuing
your appeal in accordance with the Board’s procedures . . .
[and] [i]f you miss any of your due dates including meeting
either position paper due date, the Board will dismiss your
appeal. The Board will not send a due date reminder.” The
Board cited the Instructions and the letter in its decision, spe-
cifically that portion warning of dismissal for failure to sub-
mit timely position papers.
[5] Although this is an issue of first impression for us, sev-
eral other courts have held that the Board’s decision to dis-
miss an appeal for failure to timely submit a position paper
does not constitute arbitrary and capricious conduct. See High
Country Home Health, 359 F.3d at 1311-1312 (holding that
the Board’s dismissal of a provider’s appeal because of failure
to submit its final position paper, due to staff’s failure to prop-
erly docket the due date, was not arbitrary and capricious);
8148 KAISER FOUNDATION HOSPITALS v. SEBELIUS
see also Inova, 244 F.3d at 351 (concluding that dismissal of
a provider’s appeal because of failure to submit a position
paper due to “administrative oversight” was not arbitrary and
capricious); Novacare, Inc. v. Thompson, 357 F.Supp.2d 268,
272-73 (D. D.C. 2005) (explaining that dismissal because of
failure to submit a position paper due to miscommunication
with the provider’s attorney was not arbitrary and capricious).
We join these courts and hold as a matter of first impression
in this Circuit, that the Board’s dismissal of Kaiser’s appeal
for failure to file a preliminary position paper as required by
the Board’s procedural rules was not arbitrary or capricious.
Kaiser was forewarned that failure to file the position paper
would result in dismissal of the appeal. The Board considered
Kaiser’s arguments for excusing the failure and denied Kai-
ser’s request to reinstate the appeal. Under these circum-
stances, we cannot say that the Board abused its discretion.
Kaiser’s argument that this panel must review the Board’s
decision under an “excusable neglect” standard is unavailing.
Kaiser propounds an equitable analysis of “excusable neglect”
based on Ninth Circuit case law interpreting the Federal Rules
of Civil Procedure. Specifically, Kaiser relies on the Fourth
Circuit’s observation in Inova that “[t]he decision to dismiss
an administrative appeal is similar to the kind of dismissal
decisions that courts routinely review for error” and its cita-
tion to several sections of the Federal Rules of Civil Proce-
dure. Inova, 244 F.3d at 348. However, the Inova court did
not itself apply the equitable analysis suggested by Kaiser.
Rather, as mentioned earlier, Inova explicitly held that “a pro-
vider’s statutory right to a hearing is not unduly burdened by
a rule allowing dismissal for failure to file a timely position
paper.” Inova, 244 F.3d at 349.
Importantly, none of the other cases that have considered
a board’s dismissal due to a provider’s failure to timely file
a position paper mentioned, much less applied, an excusable
neglect standard. Rather, the issue was resolved under the
well-established arbitrary and capricious standard of review.
KAISER FOUNDATION HOSPITALS v. SEBELIUS 8149
We adhere to that standard in view of our precedent consis-
tently applying the arbitrary and capricious standard of review
when considering challenges to decisions by an administrative
body. See County of Los Angeles, 521 F.3d at 1078 (“Judicial
review of a decision of the PRRB is pursuant to the Adminis-
trative Procedure[ ] Act (APA). For this reason, we may not
set aside its findings or conclusions unless they are . . . arbi-
trary, capricious, an abuse of discretion, or otherwise not in
accordance with law.”) (citations and internal quotation marks
omitted).
“[W]hile an agency should provide a reasoned basis for its
actions, we will uphold a decision of less than ideal clarity if
the agency’s path may be reasonably discerned.” Providence
Yakima Med. Ctr., 611 F.3d at 1190 (citations and internal
quotation marks omitted). As discussed above, the Board’s
decision was explicitly based on Kaiser’s failure to adhere to
the Board’s Instructions and “Acknowledgment and Critical
Due Dates” letter. The Board considered the evidence pre-
sented and the administrative record prior to dismissing Kai-
ser’s appeal. No abuse of discretion or clear error in judgment
was exhibited.
IV. CONCLUSION
[6] The district court committed no error when it granted
Sebelius’s motion for summary judgment. The Board’s
Instructions requiring dismissal of claims due to failure to
timely submit preliminary position papers did not violate the
Medicare Act and the Board’s dismissal of Kaiser’s claim was
neither arbitrary nor capricious.
AFFIRMED.
ZOUHARY, District Judge, dissenting:
I find that the Board’s decision in this case was “arbitrary,
capricious, an abuse of discretion . . . or unsupported by sub-
8150 KAISER FOUNDATION HOSPITALS v. SEBELIUS
stantial evidence.” 5 U.S.C. § 706(2)(a)(e). I understand that
substantial deference is given to a Board’s decision. However,
the facts of this case do not support the Board’s decision.
First, there is no other reported decision where the sole
issue has been the late filing of a preliminary paper, as
opposed to the late filing of a final position paper. The differ-
ence between the two is significant. Second, the Board does
not always dismiss motions for reinstatement where a filing
has been untimely. Third, in light of the Board’s inconsistent
dismissal of untimely motions combined with the general
proposition that procedural rules can be relied on to control
the Board’s docket, there is little logic to why the Board acted
like it did when, in this case, a missing preliminary paper and
an early final paper did not adversely impact the Board’s
docket. Preliminary paper deadlines are logically not the same
as final position paper deadlines, and the Board failed to
recite how its decision in this case adversely impacted its
docket. Rather, the Board seemed to rely on the curious
notion that the experienced hospital lawyers “should have
known better,” and failed to distinguish how this case differed
from other cases where late filings were permitted. Fourth, the
Board failed to account for the clear policy reasons favoring
the hospital: the lack of prejudice, the subsequent change in
the Rules which no longer even require the filing of a prelimi-
nary paper (see PRRB Rules, Part II, Rule 23.1), the availabil-
ity of the group appeal where this case would have been
transferred (and already disposed of), and the early filing of
the final position paper which not only did not delay hearing
this case, but arguably advanced the case for resolution or
transfer.
Arbitrary and capricious does not mean unfettered discre-
tion by the Board. Dismissal of an appeal for a technical pro-
cedural violation, without addressing the factors outlined
above, fails to provide guidance for litigants. For these rea-
sons, I respectfully dissent.