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GUST ROSENFELD P.L.C.

One S. Church Ave., Suite 1900
Tucson, Arizona 85701-1627
Telephone: (520) 628-7070
Facsimile: (520) 624-3849
Thomas M. Murphy 003340; PCC No. 41252
William S. Sowders 022286
tmurphy@gustlaw.com
wsowders@gustlaw.com

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

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COCHISE REGIONAL HOSPITAL,

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No.

Plaintiff,

PLAINTIFFS MEMORANDUM IN
SUPPORT OF EX PARTE MOTION
FOR (1) TEMPORARY
RESTRAINING ORDER; AND (2)
ORDER TO SHOW CAUSE FOR
PRELIMINARY INJUNCTION

vs.
SYLVIA MATHEWS BURWELL, in her
official capacity as U.S. Secretary of
Health and Human Services; Marilyn
Tavenner, as Administrator of the Centers
for Medicare & Medicaid Services; and
Cara M. Christ, as Director of the Arizona
Department of Health Services,
Defendant.

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INTRODUCTION

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Plaintiff Cochise Regional Hospital (CRH) operates a twenty-five bed acute

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care hospital in Douglas, Arizona. On May 7, 2015, the Centers for Medicare &

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Medicaid Services (CMS) notified CRH that it was terminating CRHs provider

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agreement in the Medicare program on July 10, 2015. Immediately, CRH contacted

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CMS and the other defendants regarding the notification and sought to enforce CRHs

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administrative remedies and constitutional rights. Despite, every effort by CRH to do

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so, the defendants largely ignored CRHs actions to exhaust its administrative remedies

and enforce its constitutional rights. As a result, CRH will be forced to shut its doors

forever without ever having had the opportunity to be heard on the propriety of the

decision. Defendants conduct violates CRH procedural due process rights guaranteed

by the Fifth and Fourteenth Amendments, the Administrative Procedure Act, and

Medicare Act and should be preliminarily enjoined to give CRH a fair opportunity to

pursue its administrative rights and remedies. Accordingly for the reasons discussed

below, Plaintiff respectfully requests the following relief:

1. A temporary injunction enjoining from Defendants from terminating CRHs

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Medicare provider agreement, denying payment for new Medicare admissions,

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denying payment for existing Medicare residents, prohibiting CRH from admitting

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publicly assisted and private paying residents and readmitting residents on medical

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leave; for such other and further relief as this Court deems just and proper; and
2. An order to show cause for a preliminary injunction hearing within a time

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frame permitted by the applicable laws, or otherwise agreed by the parties.

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BACKGROUND

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A.

Statutory and Regulatory Scheme

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Medicare is a federally funded and administered program that provides payment

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for, inter alia, hospital services to aged or disabled persons who are eligible for these

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services under the Social Security Act, 42 U.S.C. 426, 1395(c). Defendant Sylvia

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Mathews Burwell, as Secretary of the United States Department of Health and Human

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Services (the Secretary), is responsible for administering the Social Security Act, 42

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U.S.C. 301, et seq., and the Medicare Act, 42 U.S.C. 1395 et seq., and does so CMS,

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a federal Health and Human Services agency whose administrator is defendant Marilyn

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Tavenner.

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In order to participate in the Medicare program, a hospital must meet statutory

and regulatory requirements. 42 C.F.R. Part 482. CMS may terminate a hospital from

participation in the Medicare program if CMS finds that the hospital is not in substantial

compliance with the provisions of title XVIII of the Act and the applicable regulations

or if the hospital no longer substantially meets the appropriate conditions of

participation. 42 C.F.R. 489.53(a)(1).

determination to terminate it from participation in the Medicare program is entitled to a

hearing. 42 C.F.R. 498.5(b), 498.3(b)(7).

B.

A hospital that is dissatisfied with CMS's

Defendants Unfair Treatment of CRH

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Southeast Arizona Medical Center (SAMC) has operated in Douglas, Arizona

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for over 100 years. In February 2013, it filed for Chapter 11 bankruptcy protection and

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attempted to find a buyer for its operations. In January 2014, Douglas Community

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Hospital, Inc., d/b/a Cochise Regional Hospital, purchased the operations of SAMC.

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See Guterman Decl. 1, 3, Ex. A. The name was changed to Cochise Regional

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Hospital (CRH). Id. In 2012, the Arizona Department of Health Services (ADHS)

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made only two site visits to SAMC. Id. at 4. In 2013, ADHS made no site visits to

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SAMC. Id. Since the renaming of SAMC to CRH, ADHS has made a total of nineteen

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site visits to the hospital. Most hospitals have only one site visit per year. Id.

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The dramatic increase in site visits was no coincidence. Id at 5. Connie Belden,

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who is Team Leader for medical facilities licensing at ADHS, told CRH in August 2014

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that CRH was complaint with all policy and procedures but intended to have CRHs

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hospital license revoked because she just does not like the nurses at CRH. Id. In

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response, CRH informed Ms. Belden that CRH would seek a hearing before an

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Administrative Law Judge should she attempt to revoke CRHs license. Afterwards,

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Ms. Belden backed down and signed a basic agreement that CRH will continue to

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improve nursing services based upon the agreed upon criteria in a new agreement with

ADHS. See Guterman Decl. 6, Ex. A.

In December 2014, CRH was granted a new hospital license. Id at 7. From

December 2014 to February 2015, the site visits decrease but do not cease. Id. at 8. In

May 2015, Ms. Belden submitted a recommendation to CMS and HHS to stop Medicare

reimbursement to CRH because of inadequate nursing services. Id. at 9. This was

surprising to CRH because the very same nurses work or have worked at other hospitals

and are credentialed. Id.

On May 8, 2015, CRH received a letter from CMS informing CRH that CMS

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was terminating CRHs Medicare provider agreement due to inadequate nursing

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services. Id. at 10. CMS in its termination letter also informed CRH that CRH had 60

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days in which to appeal CMSs decision. See Guterman Decl. 11, Ex. A.

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In accordance with its administrative rights and remedies, CRH filed an appeal

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on June 11, 2015. Id. at 12. Over the next few weeks, CRH attempted on numerous

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occasions to get in touch with CMS to discuss its appeal and see whether CRH could do

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anything in order to resolve the situation. Id. at 13. Finally, CRH was able to speak

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with Rufus Arther on July 2, 2015. Id. at 14. On July 8, 2015, CRHs representatives

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flew to San Francisco to meet with Mr. Arther in person to present a plan of correction

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and discuss the disparity in the level of oversight of CRH. Id. Mr. Arther advised

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CRHs representatives that all factors would be taken under advisement. Id. The next

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day Mr. Arther notified CRH that despite the progress made by the hospital and that fact

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that CRH is the only comprehensive healthcare facility in Douglas, Arizona, CMS

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would continue with its plans to terminate CRHs Medicare provider agreement

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effective July 10, 2015. Id. at 15. CRH also advised Mr. Arther that this will cause

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irreparable financial and operational damage to the hospital and CMSs decision

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essentially would force the closure of CRH without sufficient due process and before

CRH had exhausted its administrative rights and remedies. Id.

If CRH closes, the 20,000 people living in Douglas, Arizona will be without

access to top quality medical care. See Guterman Decl. 16, Ex. A. CRH is the only

hospital in the southeastern border of Arizona for rural citizens in this area. Id. All of

the areas fire department patients will need to be transported to Bisbee (25 miles) or

Sierra Vista (45 miles) causing a significant impact to the staffing levels at the areas

fire station not taking into account the fiscal impact to Douglass city budget and the

patients. Id. Chronically-ill patients (heart failure, renal failure, diabetes, chest pain,

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hip/knee replacement, etc.) will have to drive two hours just for basic hospital in-

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patient medical care. Id. And the patients family will also have to drive 2 hours to

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provide love and support for their sick family member. Id. Any person in Douglas,

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Arizona seeking surgery, chemotherapy, basic heart stress tests, colon cancer screening,

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or immediate medical attention to life threatening illnesses will have to trek two hours.

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Id. Furthermore, the 70 CRH employees will lose their jobs immediately, causing

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distress on an already financially-challenged community. Id.

ARGUMENT

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I.

This Court Has Subject Matter Jurisdiction

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A. CRHs Complaint Raises Federal Questions

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CRH asserts claims under the United States Constitution, the Medicare Act and

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the Administrative Procedure Act. Under 28 U.S.C. 1331, [t]he district courts shall

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have original jurisdiction of all civil actions arising under the Constitution, laws, or

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treaties of the United States. While the Medicare Act, 42 U.S.C. 405(h), does state

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that [n]o action against the United States, the [Secretary] or any officer or employee

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thereof shall be brought under section 1331 or 1346 of title 28 to recover on any claim

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arising under this subchapter, CRHs claims qualify for the exhaustion of

administrative remedies exception for cases which are entirely collateral to the

substantive claim of entitlement to benefits.

This exception is grounded in the Supreme Courts recognition in Mathews v.

Eldridge, 424 U.S. 319 (1976) that a fundamental requirement of due process is an

opportunity to be heard at a meaningful time and in a meaningful manner. The Supreme

Court looked to two criteria in determining if judicial review was appropriate in the face

of 42 U.S.C. 405(h). First, a plaintiff must satisfy the requirement that the claim has

been presented to the Secretary. Mathews, 424 U.S. at 328. CRH has done so. Second,

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in considering whether to waive the need to exhaust administrative remedies to satisfy

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due process, courts consider whether (1) the claim advanced is collateral to a demand

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for benefits; (2) exhaustion of remedies would be futile and (3) whether the plaintiff

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would suffer irreparable harm if required to exhaust its administrative remedies. E.g.,

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Johnson v. Shalala, 2F.3d 918, 921-923 (9th Cir. 1993); City of New York v. Heckler,

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742 F.2d 729, 736 (2d Cir. 1984), affd sub nom. Bowen v. City of New York, 476 U.S.

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467 (1986); Matthews v. Shalala, No. 93 Civ. 1408 (MBM), 1993 WL 385783, *2

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(S.D.N.Y. Sept. 28, 1993).

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Courts should be flexible in determining whether exhaustion should be excused.

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Determinations should also be guided by the policies underlying the exhaustion

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requirement. As we have noted, [n]o one element is critical to the resolution of the

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[exhaustion] issue; rather, a more general approach, balancing the competing

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considerations to arrive at a just result, is in order. Pavano v. Shalala, 95 F.3d 147,

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151 (2d Cir .1996)(quoting Bowen v. City of New York, 476 U.S. 467, 484 (1986) and

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State of New York v. Sullivan, 906 F.2d 910, 918 (2d Cir.1990)). CRHs claims in this

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Court are entirely collateral to the claim it is pursuing before the CMS and HHS

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because it is not requesting that this Court in any way disturb CMSs determination to

terminate its Medicare provider agreement. Rather, CRH merely seeks declaratory

judgments that defendants have violated its procedural due process rights, statutory

rights under the Medicare Act and statutory rights under the APA. In aid of pursuing

those claims for relief, CRH seeks temporarily and preliminarily to stay termination of

its Medicare provider agreement pending termination of those claims and finality of the

administrative appeal it is expeditiously pursuing.

Any attempt to exhaust administrative remedies would clearly be futile in this

case. First the Administrative Law Judge does not have the authority to adjudicate

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constitutional claims, Oak Park Healthcare Center v. Centers for Medicare and

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Medicaid Services, DAB No. CR1917, 2009 WL 2148143 (H.H.S. Mar. 5, 2009), to

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decide whether the Secretary had the power to terminate CRHs Medicare provider

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agreement, Mediplex of Massachusetts, Inc., 39 F. Supp. 2d at 93, or to grant a stay.

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Mediplex of Massachusetts, Inc., 39 F. Supp. 2d at 93; International Long Term Care,

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Inc., 947 F. Supp. at 19. Second, given that CMS has terminated CRHs Medicare

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provider agreement on July 10, 2015, by the time a hearing is conducted, appeals taken

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including to this Court to review the propriety of the administrative determination, CRH

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will be out of business. See Pathfinder Healthcare, Inc. v. Thompson, 177 F. Supp. 2d

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895, 896 (E.D. Ark. 2001)(The Court answers in the affirmative the threshold issue of

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whether this Court may exercise subject matter jurisdiction. . . . [T]he Court is

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convinced that denying Pathfinder this limited relief would amount to the practical

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equivalent of a total denial of judicial review.) (internal citations and quotes omitted.).

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Where, as here, it would be pointless to exercise a providers administrative remedies,

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the futility requirement has been met. State of New York v. Sullivan, 906 F.2d at 918.

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Lastly, if CRH were compelled to exhaust its administrative remedies, CRH and the

community would suffer an extreme and irreparable harm. CRH receives 50% of its

gross revenues from its participation in the Medicare program. Without Medicare

payments, the hospital cannot operate and will be forced to shut down. In the event that

the hospital shuts down, it will be difficult, if not impossible, for the hospital to reopen.

CRH would have trouble opening due to two important factors: (1) the impact of

negative cash flow, and (2) the need for CRH to comply with all the new hospital

standards that the existing hospital is not required to adhere to because it was

grandfathered.

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For all these reasons, CRH need not exhaust its administrative remedies before

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coming to this Court, and this Court can and should exercise its subject matter

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jurisdiction to adjudicate CRHs constitutional due process, Medicare Act and APA

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claims.

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B. CRH Seeks Mandamus Relief

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Under 28 U.S.C. 1361, [d]istrict courts shall have original jurisdiction of any

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action in the nature of mandamus to compel an officer or employee of the United States

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or any agency thereof to perform a duty owed to the plaintiff. Here, CRH seeks to

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compel defendants to provide it with administrative review prior to terminating its

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Medicare provider agreement. While 42 U.S.C. 405(h) limits the courts jurisdiction

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over claims rendered pursuant to 28 U.S.C. 1331 and 1346, the statute does not

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preclude on its face claims for relief brought pursuant to 28 U.S.C. 1361. 42 U.S.C.

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405(h) does not preclude procedural claims resting on mandamus jurisdiction in

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appropriate circumstances. City of New York v. Heckler, 742 F.2d at 739; Ellis v. Blum,

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643 F.2d 68 (2d Cir 1981); Pronti v. Barnhart, 339 F. Supp. 2d 480, 500 (W.D.N.Y.

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2004).

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Since all that CRH is seeking is a fair and meaningful opportunity to be pursue

its administrative rights and remedies before the hospital is forced to shutdown,

requiring the Secretary to provide that opportunity to CRH would fall under 28 U.S.C.

1361 jurisdiction and not run afoul of 42 U.S.C. 405(h).

For all these reasons, CRH need not exhaust its administrative remedies before

coming to this Court, and this Court can and should exercise its subject matter

jurisdiction to adjudicate CRHs claim under the Fifth and Fourteenth Amendments.

8 II.

CRH Is Entitled To A Preliminary Injunction

The grant or denial of a motion for a preliminary injunction lies within the

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discretion of the district court. Its order granting or denying the injunction will be

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reversed only if the district court abused its discretion. Zepeda v. I.N.S., 753 F.2d 719,

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724 (9th Cir. 1983). A district judge may abuse his discretion in any of three ways: (1)

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he may apply incorrect substantive law or an incorrect preliminary injunction standard;

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(2) he may rest his decision to grant or deny a preliminary injunction on a clearly

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erroneous finding of fact that is material to the decision to grant or deny the injunction;

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or (3) he may apply an acceptable preliminary injunction standard in a manner that

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results in an abuse of discretion. Id.

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The standard for either a temporary restraining order or a preliminary injunction

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is well-settled and requires a plaintiff to demonstrate: (1) a strong likelihood of success

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on the merits, (2) the possibility of irreparable injury to the plaintiff if relief is not

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granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the

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public interest. Id. at 727. The Ninth Circuit has held that the party requesting relief

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is entitled to a preliminary injunction if it demonstrates either (1) a combination of

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probable success on the merits and the possibility of irreparable injury or (2) that serious

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questions are raised and the balance of hardships tips sharply in its favor. Id.

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A. CRH Will Suffer Irreparable Injury In The Absence Of Injunctive Relief

CRH will be irreparably harmed if CMSs termination of CRHs Medicare

provider agreement and payments to CRH are allowed to continue. Medicare payments

represent 50% of CRHs gross revenues. CRH receives 50% of its gross revenues from

its participation in the Medicare program. Without Medicare payments, the hospital

cannot operate and will be forced to shut down. In the event that the hospital shuts

down, it will be difficult, if not impossible, for the hospital to reopen.

have trouble re-opening due to two important factors: (1) the impact of negative cash

flow, and (2) the need for CRH to comply with all the new hospital standards that the

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CRH would

existing hospital is not required to adhere to because it was grandfathered.

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Not only will CRH be irreparably harmed but also would the city of Douglas,

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CRHs employees, patients and their families, and the community as a whole. If CRH

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closes, the 20,000 people living in Douglas, Arizona will be without access to top

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quality medical care. See Guterman Decl. 15, Ex. A. CRH is the only hospital in the

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southeastern border of Arizona for rural citizens in this area. Id. All of the areas fire

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department patients will need to be transported to Bisbee (25 miles) or Sierra Vista (45

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miles) causing a significant impact to the staffing levels at the areas fire station not

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taking into account the fiscal impact to Douglass city budget and the patients.

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Chronically-ill patients (heart failure, renal failure, diabetes, chest pain, hip/knee

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replacement, etc.) will have to drive two hours just for basic hospital in-patient medical

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care. Id. And the patients family will also have to drive 2 hours to provide love and

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support for their sick family member. Id. Any person in Douglas, Arizona seeking

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surgery, chemotherapy, basic heart stress tests, colon cancer screening, or immediate

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medical attention to life threatening illnesses will have to trek two hours. Id.

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Furthermore, the 70 CRH employees will lose their jobs immediately, causing distress

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on an already financially-challenged community. Id. Accordingly, CRH requires

immediate injunctive relief, enjoining the defendants from terminating CRHs Medicare

provider agreements and Medicare payments.

B. Defendants Will Suffer No Harm If Injunctive Relief Is Granted

Compared to the enormous irreparable harm to CRH, its employees, patients,

families, and the community of Douglas, the Defendants will suffer no harm if the Court

issues a preliminary injunction because the Defendants will have to pay the same

Medicare fees, regardless of which hospital the CRH patients are located. The interest

of the Government in administering the Medicare and Medicaid programs is to ensure

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that the recipients of benefits are receiving adequate treatment and care. It is in the best

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interest of no one to incur the risks inherent in the relocation of the [patients] unless it is

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necessary. Therefore, it is also in the best interest of the Government where an

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immediate jeopardy finding has not been made, that the Facility be brought into

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compliance with the applicable regulations, thereby obviating the need to relocate the

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[patients]. Libbie Rehabilitation Center, Inc. v. Shalala, 26 F. Supp. 2d 128, 132-33

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(D.D.C. 1998).

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C. CRH Is Likely To Succeed On The Merits Of Its Claim

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Under the Fifth Amendment to the United States Constitution, No person shall

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be . . . deprived of life, liberty, or property, without due process of law. Similarly, the

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Fourteenth Amendment provides in pertinent part: nor shall any State deprive any

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person of life, liberty, or property, without due process. The essence of due process is

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the requirement that a person in jeopardy of serious loss (be given) notice of the case

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against him and opportunity to meet it. Mathews v. Eldridge, 424 U.S. at 348; See

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also, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).

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The inquiry on a due process challenge is whether the government has deprived

the claimant of a protected property interest and whether the governments procedures

comport with due process. Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 195

(2001); American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999). CRH has a

property interest in its Medicare provider agreement. Property interests are not created

by the Constitution; they are defined by existing rules or understandings that stem from

an independent source such as state law. Board of Regents v. Roth, 408 U.S. 564, 577

(1972). While a plaintiff does not have a protected property interest in a future license,

once that license has been granted, its continued retention cannot be deprived by the

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government without the appropriate procedural safeguards. See Spinelli v. City of New

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York, 579 F.3d 160, 169-70 (2d Cir. 2009).

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In addition, where the law bestows a right that cannot properly be eliminated

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except for cause, that right constitutes property protected by procedural due process.

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Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 581 (2d Cir. 1989). CRH has a

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protected property interest in its continuation as a Medicare provider. Medicare is

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wholly run by the federal government pursuant to federal law and federal regulations.

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Prior to terminating a Medicare provider agreement, CMS must show cause. See 42

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U.S.C. 1395i-3(h)(2)(Secretary can only terminate Medicare provider agreement in

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instances of immediate jeopardy to patient health); 42 U.S.C. 1395cc(b)(2) (Secretary

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may terminate a provider agreement after determining the provider fails to comply

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substantially with provisions of the agreement, statute or regulation). Since under either

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section of the Medicare Act, cause must be shown prior to termination, CRH has a

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property interest in its Medicare provider agreement. See Pathfinder Healthcare, Inc.,

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177 F. Supp. 2d 895; Oak Park Health Care Center, LLC, 2009 WL 331563; Ridgeview

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Manor of the Midlands, L.P., 2007 WL 1110915 (all implicitly concluding that a health

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care facility had a property interest in its continued status as a Medicare provider by

holding that plaintiff had demonstrated a likelihood of success on the merits of its claim

that its procedural due process rights had been violated).

Procedural due process is not a rigid concept, but rather a flexible one and calls

for the amount of process due in a particular situation. See Morrissey v. Brewer, 408

U.S. 471, 481 (1972). In determining how much process is due a court must consider,

(1) the private interest affected, (2) the risk of erroneous deprivation through the

procedures used and the value of other safeguards and (3) the governments interest. See

Mathew v. Eldridge, 424 U.S. at 335. Concerning the private interest affect, the

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Supreme Court has repeatedly recognized the severity of depriving someone of his or

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her livelihood. Federal Deposit Ins. Corp. v. Mallen, 486 U.S. 230, 243 (1988).

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Moreover, because of the nature of this interest, a licensee erroneously deprived of a

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license cannot be made whole simply by reinstating the license. Spinelli, 579 F.3d

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at 171 (internal quotations and citations omitted).

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Here, a loss of CRHs Medicare provider agreement will result in closure of the

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hospital. If CRH closes, the 20,000 people living in Douglas, Arizona will be without

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access to top quality medical care. See Guterman Decl. 16, Ex. A. CRH is the only

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hospital in the southeastern border of Arizona for rural citizens in this area. Id. All of

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the areas fire department patients will need to be transported to Bisbee (25 miles) or

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Sierra Vista (45 miles) causing a significant impact to the staffing levels at the areas

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fire station not taking into account the fiscal impact to Douglass city budget and the

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patients. Id. Chronically-ill patients (heart failure, renal failure, diabetes, chest pain,

23

hip/knee replacement, etc.) will have to drive two hours just for basic hospital in-

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patient medical care. Id. And the patients family will also have to drive 2 hours to

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provide love and support for their sick family member. Id. Any person in Douglas,

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Arizona seeking surgery, chemotherapy, basic heart stress tests, colon cancer screening,

or immediate medical attention to life threatening illnesses will have to trek two hours.

Id. Furthermore, the 70 CRH employees will lose their jobs immediately, causing

distress on an already financially-challenged community. Id.

D. A Preliminary Injunction Furthers The Public Interest

Maintaining the health and safety of the residents of CRH by preventing an

unnecessary transfer is in the public interest. Mediplex of Massachusetts, Inc., 39 F.

Supp. 2d at 101. And where, as here, there is no immediate jeopardy to the residents, the

interests of avoiding a harmful disruption to their lives outweighs the regulatory

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interests involved. Mediplex of Massachusetts, Inc., 39 F. Supp. 2d at 101; see also

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International Long Term Care, Inc., 947 F. Supp. at 20 (an injunction will further the

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significant public interest both in the smooth functioning of the administrative process

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and in protecting the residents' interests, as suggested by the purposes of the Medicare

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statute); Claridge House, Inc., 795 F. Supp. at 1405 (public interest exists in preserving

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scarce financial and administrative resources).

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Furthermore, it is certainly in public interest to have CRH stay open. If CRH

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closes, the 20,000 people living in Douglas, Arizona will be without access to top

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quality medical care. See Guterman Decl. 16, Ex. A. CRH is the only hospital in the

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southeastern border of Arizona for rural citizens in this area. Id. All of the areas fire

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department patients will need to be transported to Bisbee (25 miles) or Sierra Vista (45

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miles) causing a significant impact to the staffing levels at the areas fire station not

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taking into account the fiscal impact to Douglass city budget and the patients.

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Chronically-ill patients (heart failure, renal failure, diabetes, chest pain, hip/knee

24

replacement, etc.) will have to drive two hours just for basic hospital in-patient medical

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care. Id. And the patients family will also have to drive 2 hours to provide love and

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support for their sick family member. Id. Any person in Douglas, Arizona seeking

surgery, chemotherapy, basic heart stress tests, colon cancer screening, or immediate

medical attention to life threatening illnesses will have to trek two hours. Id.

Furthermore, the 70 CRH employees will lose their jobs immediately, causing distress

on an already financially-challenged community. Id.

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E. The Court May Issue Injunctive Relief by Exercising its Equity

Jurisdiction

It is well settled that equitable powers are inherent part of the judicial power

committed to federal courts under Article III. See Rodriguez v. Hayes, 591 F.3d 1105,

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1120 (9th Cir. 2010) (citing Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S.

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460, 462 (1855)). Furthermore, the All Writs Act empowers a district court to preserve

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the status quo pending an administrative appeal challenging a decision by the Secretary.

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V.N.A. of Greater Tift County, Inc. v. Heckler, 711 F.2d 1020 (11th Cir. 1983).

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Accordingly, this Court also has the authority pursuant to the All Writs Act, 28 U.S.C.

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1651 and its inherent equitable powers and jurisdiction to grant CRH the injunction it

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seeks pending final determination of its administrative appeal currently pending.

CONCLUSION

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For the foregoing reasons, CRHs application for a temporary restraining order
and motion for a preliminary injunction should be granted.
RESPECTFULLY SUBMITTED this 16th day of July, 2015.

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GUST ROSENFELD P.L.C.

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By /s/ William S. Sowders (#022286)

One S. Church Ave., Suite 1900
Tucson, Arizona 85701-1627

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Attorneys for Plaintiff

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WSS:tno 2429173.1 7/16/2015

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