Part A of Title XVIII of the Social Security Act, commonly known
as the Medicare Act, provides insurance for the cost of hospital
and related post-hospital expenses, but precludes reimbursement for
services which are not "reasonable and necessary" for the diagnosis
or treatment of illness or injury. Judicial review of a claim under
the Medicare Act is available only after the Secretary of Health
and Human Services renders a "final decision" on the claim in the
same manner as is provided in 42 U.S.C. § 405(g) for old-age and
disability claims arising under Title II of the Social Security
Act. Title 42 U.S.C. § 405(h), to the exclusion of 28 U.S.C. § 1331
(federal question jurisdiction), makes § 405(g) the sole avenue for
judicial review of all "claim[s] arising under" the Medicare Act.
Pursuant to her rulemaking authority, the Secretary has provided
that a "final decision" is rendered on a Medicare claim only after
the claimant has pressed the claim through all designated levels of
administrative review. In January, 1979, the Secretary issued an
administrative instruction to all fiscal intermediaries that no
payment is to be made for Medicare claims arising out of a surgical
procedure known as bilateral carotid body resection (BCBR) when
performed to relieve respiratory distress. Until October, 1980,
Administrative Law Judges (ALJs), who were not bound by the
instruction, consistently ruled in favor of claimants whose BCBR
claims had been denied by the intermediaries. The Appeals Council
also authorized payment for BCBR Part A expenses in a case
involving numerous claimants. On October 28, 1980, the Secretary
issued a formal administrative ruling, intended to have a binding
effect on the ALJs and the Appeals Council, prohibiting them from
ordering Medicare payments for BCBR operations occurring after that
date, the Secretary having concluded that the BCBR procedure was
not "reasonable and necessary" within the meaning of the Medicare
Act. Without having exhausted their administrative remedies,
respondents brought an action in Federal District Court challenging
the Secretary's instruction and ruling, and relying on 28 U.S.C. §
1331, 28 U.S.C. § 1361 (mandamus against federal official), and 42
U.S.C. § 405(g) to establish jurisdiction. Respondents are four
Medicare claimants for whom BCBR surgery was prescribed to relieve
pulmonary problems. Three of the respondents (Holmes,
Webster-Zieber, and Vescio) had the surgery before
Page 466 U. S. 603
October 28, 1980, and filed claims for reimbursement with the
fiscal intermediary, and the fourth respondent (Ringer) never had
the surgery, claiming that he was unable to afford it. The
complaint sought a declaration that the Secretary's refusal to find
that BCBR surgery is "reasonable and necessary" under the Medicare
Act is unlawful, and an injunction compelling her to instruct her
intermediaries to provide payment for BCBR claims and barring her
from forcing claimants to pursue administrative appeals in order to
obtain payment. The District Court dismissed the complaint for lack
of jurisdiction, holding that, in essence, respondents were
claiming entitlement to benefits for the BCBR procedure, that any
challenges to the Secretary's procedure were "inextricably
intertwined" with respondents' claim for benefits, and that
therefore respondents must exhaust their administrative remedies
pursuant to § 405(g) before pursuing their action in federal court.
The Court of Appeals reversed, holding that, to the extent
respondents were seeking to invalidate the Secretary's
procedure for determining entitlement to benefits, those
claims were cognizable under the federal question and mandamus
statutes, without the administrative exhaustion requirement of §
405(g). While acknowledging that § 405(g), with its exhaustion
requirement, provides the only jurisdictional basis for seeking
judicial review of claims for benefits, the court nonetheless held
that the District Court erred in requiring respondents to exhaust
their administrative remedies, since exhaustion would be futile and
might not fully compensate respondents for their asserted injuries
in view of the fact that they sought payment without the prejudice
-- and the necessity of appeal -- resulting from the existence of
the Secretary's instruction and ruling.
Held:
1. Exhaustion of administrative remedies is in no sense futile
for respondents Holmes, Webster-Zieber, and Vescio, and they,
therefore, must adhere to the administrative procedure that
Congress has established for adjudicating their Medicare claims.
Pp.
466 U. S.
613-619.
(a) The Court of Appeals erred in concluding that any portion of
these respondents' claims could be channeled into federal court by
way of federal question jurisdiction. The inquiry in determining
whether § 405(h) bars federal question jurisdiction must be whether
the claim "arises under" the Medicare Act, not whether it lends
itself to a "substantive," rather than a "procedural," label. Here,
all aspects of these respondents' challenge to the Secretary's BCBR
payment policy "aris[e] under" the Medicare Act. Pp.
466 U. S.
613-616.
(b) Assuming without deciding that § 405(h) does not foreclose
mandamus jurisdiction in all Social Security Act cases, the
District Court did not err in dismissing respondents' complaint,
because no writ of mandamus could properly issue. Title 28 U.S.C. §
1361 is intended to provide a remedy only if the plaintiff has
exhausted all other avenues of
Page 466 U. S. 604
relief, and only if the defendant owes him a nondiscretionary
duty. Here, the above respondents clearly have an adequate remedy
under § 405(g) for challenging all aspects of the Secretary's
denial of their claims, and thus § 405(g) is the only avenue for
judicial review of their claims. While these respondents satisfied
the nonwaivable requirement of presenting a claim to the Secretary,
they did not satisfy the waivable requirement that administrative
remedies be exhausted. Pp.
466 U. S. 616-619.
2. The District Court had no jurisdiction as to respondent
Ringer. His claim is essentially one requesting the payment of
benefits for BCBR surgery, a claim cognizable only under § 405(g).
Mandamus jurisdiction is unavailable to him for the same reasons it
is unavailable to the other respondents. Regarding federal question
jurisdiction, as with the other respondents, all aspects of
Ringer's claim "aris[e] under" the Medicare Act. He must pursue his
claim under § 405(g) in the same manner that Congress has provided.
Because he has not given the Secretary an opportunity to rule on a
concrete claim for reimbursement, he has not satisfied the
nonwaivable exhaustion requirement of § 405(g). Pp.
466 U. S.
620-626.
697 F.2d 1291, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, POWELL, and O'CONNOR, JJ.,
joined. STEVENS, J., filed an opinion concurring in the judgment in
part and dissenting in part, in which BRENNAN and MARSHALL, JJ.,
joined,
post, p.
466 U. S.
627.
JUSTICE REHNQUIST delivered the opinion of the Court.
Respondents are individual Medicare claimants who raise various
challenges to the policy of the Secretary of Health and Human
Services (Secretary) as to the payment of Medicare
Page 466 U. S. 605
benefits for a surgical procedure known as bilateral carotid
body resection (BCBR). The United States District Court for the
Central District of California dismissed the action for lack of
jurisdiction, finding that, in essence, respondents are claiming
entitlement to benefits for the BCBR procedure, and therefore must
exhaust their administrative remedies pursuant to 42 U.S.C. §
405(g) before pursuing their action in federal court. The Court of
Appeals for the Ninth Circuit reversed and remanded for
consideration on the merits. 697 F.2d 1291 (1982). We granted
certiorari to sort out the thorny jurisdictional problems which
respondents' claims present, 463 U.S. 1206 (1983), and we now
reverse as to all respondents.
I
Title XVIII of the Social Security Act, 79 Stat. 291, as
amended, 42 U.S.C. § 1395
et seq., commonly known as the
Medicare Act, establishes a federally subsidized health insurance
program to be administered by the Secretary. Part A of the Act, 42
U.S.C. § 1395c
et seq., provides insurance for the cost of
hospital and related post-hospital services, but the Act precludes
reimbursement for any "items or services . . . which are not
reasonable and necessary for the diagnosis or treatment of illness
or injury." § 1395y(a)(1). The Medicare Act authorizes the
Secretary to determine what claims are covered by the Act "in
accordance with the regulations prescribed by him." § 1395ff(a).
Judicial review of claims arising under the Medicare Act is
available only after the Secretary renders a "final decision" on
the claim, in the same manner as is provided in 42 U.S.C. § 405(g)
[
Footnote 1] for old age and
disability claims arising under Title II of the Social Security
Act. 42 U.S.C. § 1395ff(b)(1)(C).
Page 466 U. S. 606
Pursuant to her rulemaking authority,
see 42 U.S.C. §§
1395hh, 1395ii (incorporating 42 U.S.C. § 405(a)), the Secretary
has provided that a "final decision" is rendered on a Medicare
claim only after the individual claimant has pressed his claim
through all designated levels of administrative review. [
Footnote 2] First, the Medicare Act
authorizes the Secretary to enter into contracts with fiscal
intermediaries providing that the latter will determine whether a
particular medical service is covered by Part A, and if so, the
amount of the reimbursable expense for that service. 42 U.S.C. §
1395h; 42 CFR § 405.702 (1983). If the intermediary determines that
a particular service is not covered under Part A, the claimant can
seek reconsideration by the Health Care Financing Administration
(HCFA) in the Department of Health and Human Services. 42 CFR §§
405.710-405.716 (1983). If denial of the claim is affirmed after
reconsideration, and if the claim exceeds $100, the claimant is
entitled to a hearing before an administrative law judge (ALJ) in
the same manner as is provided for claimants under Title II of the
Act. 42 U.S.C. §§ 1395ff(b)(1)(C), (b)(2); 42 CFR § 405.720
(1983).
Page 466 U. S. 607
If the claim is again denied, the claimant may seek review in
the Appeals Council. 42 CFR §§ 405.701(c), 405.724 (1983)
(incorporating 20 CFR § 404.967 (1983)). If the Appeals Council
also denies the claim and if the claim exceeds $1,000, only then
may the claimant seek judicial review in federal district court of
the "Secretary's final decision." 42 U.S.C. §§ 1395ff(b)(1)(C),
(b)(2).
In January, 1979, the Secretary, through the HCFA, issued an
administrative instruction to all fiscal intermediaries,
instructing them that no payment is to be made for Medicare claims
arising out of the BCBR surgical procedure when performed to
relieve respiratory distress.
See 45 Fed.Reg. 71431-71432
(1980) (reproducing the instruction). [
Footnote 3] Relying on information from the Public Health
Service and a special Task Force of the National Heart, Lung and
Blood Institute of the National Institutes of Health,
id.
at 71426, the HCFA explained that BCBR has been "shown to lack
[the] general acceptance of the professional medical community,"
and that "controlled clinical studies establishing the safety and
effectiveness of this procedure are needed."
Id. at 71431.
It concluded that the procedure "must be considered
investigational" and not "reasonable and necessary" within the
meaning of the Medicare Act.
Ibid.
Many claimants whose BCBR claims were denied by the
intermediaries as a result of the instruction sought review of the
denial before ALJs, who were not bound by the Secretary's
instructions to the intermediaries. Until October,
Page 466 U. S. 608
1980, ALJs were consistently ruling in favor of individual BCBR
claimants. The Appeals Council also authorized payment for BCRB
Part A expenses in a consolidated case involving numerous
claimants,
see In re Ferguson, No. 12612-3830 (HHS Appeals
Council, Oct. 18, 1979), while stressing that its decision applied
only to the claimants involved in that case, and was not to be
cited as precedent in future cases.
In response to the rulings of the ALJs and the Appeals Council,
on October 28, 1980, the Secretary, through the HCFA, issued a
formal administrative ruling, intended to have binding effect on
the ALJs and the Appeals Council,
see 20 CFR § 422.408
(1983), prohibiting them in all individual cases from ordering
Medicare payments for BCBR operations occurring after that date. 45
Fed.Reg. 71426-71427 (1980). In the ruling, the Secretary noted
that she had examined the proceedings in
In re Ferguson,
had consulted with the Public Health Service, and again had
concluded that the BCBR procedure was not "reasonable and
necessary" within the meaning of the Medicare Act.
Ibid.
On September 18, 1980, respondents in this case filed a
complaint in the District Court for the Central District of
California, raising numerous challenges focused on the Secretary's
January, 1979, instructions to her intermediaries precluding
payment for BCBR surgery. [
Footnote
4] On November 7, 1980,
Page 466 U. S. 609
after the Secretary issued the formal ruling binding on the ALJs
and the Appeals Council as well as the intermediaries, respondents
amended their complaint to challenge that ruling as well.
Respondents relied on 28 U.S.C. § 1331 (federal question), 28
U.S.C. § 1361 (mandamus against a federal official), and 42 U.S.C.
§ 405(g) (Social Security Act), to establish jurisdiction in the
District Court.
The individuals named in the amended complaint, who are
respondents before this Court, [
Footnote 5] are four individual Medicare claimants. Their
physician, Dr. Benjamin Winter, [
Footnote 6] who has developed a special technique for
performing BCBR surgery and who has performed the surgery over
1,000 times, prescribed BCBR surgery for all four respondents to
relieve their pulmonary problems. Respondents Sanford Holmes,
Norman Webster-Zieber, and Jean Vescio had the surgery before
October 28, 1980, and all three filed a claim for reimbursement
with their fiscal intermediary. At the time
Page 466 U. S. 610
that the amended complaint was filed, none of the three had
exhausted their administrative remedies, and thus none had received
a "final decision" on their claims for benefits from the Secretary.
The fourth respondent, Freeman Ringer, informally inquired of the
Secretary and learned that BCBR surgery is not covered under the
Medicare Act. Thus, he has never had the surgery, claiming that he
is unable to afford it. App. 32.
The essence of their amended complaint is that the Secretary has
a constitutional and statutory obligation to provide payment for
BCBR surgery because overwhelmingly her ALJs have ordered payment
when they have considered individual BCBR claims.
Id. at
9-10. According to the complaint, the Secretary's instructions to
the contrary to her intermediaries violate constitutional due
process and numerous statutory provisions in that they force
eligible Medicare claimants who have had BCBR surgery to pursue
individual administrative appeals in order to get payment, even
though ALJs overwhelmingly have determined that payment is
appropriate.
Id. at 16-22. Regarding the Secretary's
formal administrative ruling, the complaint asserts that the ruling
merely reaffirms the instructions and creates an "additional
administrative barrier" to Medicare beneficiaries desiring the BCBR
treatment, and that it also is unlawful on numerous substantive and
procedural grounds.
Id. at 23-25. [
Footnote 7] The
Page 466 U. S. 611
complaint seeks a declaration that the Secretary's refusal to
find that BCBR surgery is "reasonable and necessary" under the Act
is unlawful, an injunction compelling the Secretary to instruct her
intermediaries to provide payment for BCBR claims, and an
injunction barring the Secretary from forcing claimants to pursue
individual administrative appeals in order to obtain payment.
Id. at 9-10, 25-27.
The District Court dismissed the complaint in its entirety for
lack of jurisdiction. [
Footnote
8] It concluded that "[t]he essence of [respondents' claim] . .
. is a claim of entitlement [to] benefits for the BCBR procedure,"
and that any challenges respondents raise to the Secretary's
procedures are "inextricably intertwined" with their claim for
benefits. App. to Pet. for Cert. 14a. Thus the court concluded that
42 U.S.C. § 405(g), with its administrative exhaustion
prerequisite, provides the sole avenue for judicial review. Relying
on our decision in
Mathews v. Eldridge, 424 U.
S. 319,
424 U. S.
330-332 (1976), the court concluded that none of
respondents' claims are so "collateral" to their overall claim for
benefits that the
Page 466 U. S. 612
exhaustion requirement should be waived as to those claims.
Because none of the named respondents have satisfied the exhaustion
prerequisite of § 405(g), the court dismissed the complaint.
On appeal, the Court of Appeals for the Ninth Circuit reversed.
It concluded that the thrust of respondents' claim is that
"the Secretary's presumptive rule that the BCBR operation is not
reasonable and necessary was an unlawful administrative mechanism
for determining awards of benefits."
697 F.2d at 1294. The Court of Appeals concluded that, to the
extent that respondents are seeking to invalidate the Secretary's
procedure for determining entitlement to benefits, those claims are
cognizable without the requirement of administrative exhaustion
under the federal question statute, 28 U.S.C. § 1331, and the
mandamus statute, 28 U.S.C. § 1361. 697 F.2d at 1294.
The Court of Appeals agreed with the District Court that
respondents also had raised
substantive claims for
benefits, in that they had sought an injunction requiring the
Secretary to declare that BCBR is reasonable and necessary under
the Act. In the Court of Appeals' view, the fact that respondents
had not sought an actual award of benefits in their complaint did
not alter the court's characterization of a portion of their claim
as essentially a claim for benefits.
Ibid. Acknowledging
that § 405(g) with its exhaustion prerequisite provides the only
jurisdictional basis for seeking judicial review of claims for
benefits, the court nonetheless concluded that the District Court
had erred in requiring respondents to exhaust their administrative
remedies in this case. Relying on our opinions in
Weinberger v.
Salfi, 422 U. S. 749
(1975), and
Mathews v. Eldridge, supra, the Court of
Appeals concluded that exhaustion would be futile for respondents,
and that it may not fully compensate them for the injuries they
assert because they seek payment without the prejudice -- and the
necessity of appeal -- resulting from the existence of the
instructions and the rule. 697 F.2d at 1294-1296. Because we
disagree with the Court of Appeals' characterization
Page 466 U. S. 613
of the claims at issue in this case and its reading of our
precedents, we now reverse.
II
Preliminarily, we must point out that, although the Court of
Appeals seemed not to have distinguished them, there are in fact
two groups of respondents in this case. Respondents Holmes, Vescio,
and Webster-Zieber constitute one group of respondents, those who
have had BCBR surgery before October 28, 1980, and who have
requested reimbursement at some, but not all, levels of the
administrative process. Although the Court of Appeals did not seem
to realize it, there is no dispute that the Secretary's formal
administrative ruling simply does not apply to those three
respondents' claims for reimbursement for their BCBR surgery.
[
Footnote 9] Their claims only
make sense then if they are understood as challenges to the
Secretary's instructions to her intermediaries, instructions which
resulted in those respondents' having to pursue administrative
remedies in order to get payment. They have standing to challenge
the formal ruling as well only because, construing their complaint
liberally, they argue that the existence of the formal rule creates
a presumption
Page 466 U. S. 614
against payment of their claims in the administrative process,
even though the rule does not directly apply to bar their claims.
The relief respondents request is that the Secretary change her
policy so as to allow payment for BCBR surgery so that respondents
simply will not have to resort to the administrative process.
It seems to us that it makes no sense to construe the claims of
those three respondents as anything more than, at bottom, a claim
that they should be paid for their BCBR surgery. Arguably
respondents do assert objections to the Secretary's "procedure" for
reaching her decision -- for example, they challenge her decision
to issue a generally applicable rule, rather than to allow
individual adjudication, and they challenge her alleged failure to
comply with the rulemaking requirements of the APA in issuing the
instructions and the rule. We agree with the District Court,
however, that those claims are "inextricably intertwined" with
respondents' claims for benefits. Indeed the relief that
respondents seek to redress their supposed "procedural" objections
is the invalidation of the Secretary's current policy and a
"substantive" declaration from her that the expenses of BCBR
surgery are reimbursable under the Medicare Act. We conclude that
all aspects of respondents' claim for benefits should be channeled
first into the administrative process which Congress has provided
for the determination of claims for benefits. We therefore disagree
with the Court of Appeals' separation of the particular claims here
into "substantive" and "procedural" elements. We disagree in
particular with its apparent conclusion that, simply because a
claim somehow can be construed as "procedural," it is cognizable in
federal district court by way of federal question jurisdiction.
The third sentence of 42 U.S.C. § 405(h), [
Footnote 10] made applicable to the Medicare Act
by 42 U.S.C. § 1395ii, provides
Page 466 U. S. 615
that § 405(g), to the exclusion of 28 U.S.C. § 1331, is the sole
avenue for judicial review for all "claim[s] arising under" the
Medicare Act.
See Weinberger v. Salfi, supra, at
422 U. S.
760-761. Thus, to be true to the language of the
statute, the inquiry in determining whether § 405(h) bars federal
question jurisdiction must be whether the claim "arises under" the
Act, not whether it lends itself to a "substantive," rather than a
"procedural," label.
See Mathews v. Eldridge, 424 U.S. at
424 U. S. 327
(recognizing that federal question jurisdiction is barred by 42
U.S.C. § 405(h) even in a case where claimant is challenging the
administrative procedures used to terminate welfare benefits).
In
Weinberger v. Salfi, supra, at
422 U. S.
760-761, we construed the "claim arising under" language
quite broadly to include any claims in which "both the standing and
the substantive basis for the presentation" of the claims is the
Social Security Act. In that case, we held that a constitutional
challenge to the duration-of-relationship eligibility statute
pursuant to which the claimant had been denied benefits, was a
"claim arising under" Title II of the Social Security Act within
the meaning of 42 U.S.C. § 405(h), even though we recognized that
it was, in one sense, also a claim arising under the
Constitution.
Under that broad test, we have no trouble concluding that all
aspects of respondents Holmes', Vescio's, and Webster-Zieber's
challenge to the Secretary's BCBR payment policy "aris[e] under"
the Medicare Act. It is of no importance that respondents here,
unlike the claimants in
Weinberger v. Salfi, sought only
declaratory and injunctive relief, and not an actual award of
benefits as well. Following the declaration which respondents seek
from the Secretary -- that BCBR surgery is a covered service --
only essentially ministerial details will remain before respondents
would receive reimbursement.
Page 466 U. S. 616
Had our holding in
Weinberger v. Salfi turned on the
fact that claimants there did seek retroactive benefits, we might
well have done as the dissent in that case suggested, and held that
§ 405(h) barred federal question jurisdiction only over claimants'
specific request for benefits, and not over claimants' declaratory
and injunctive claims as well.
See 422 U.S. at
422 U. S.
798-799, and n. 13 (BRENNAN, J., dissenting). Thus we
hold that the Court of Appeals erred in concluding that any portion
of Holmes', Vescio's, or Webster-Zieber's claims here can be
channeled into federal court by way of federal question
jurisdiction.
The Court of Appeals also relied on the mandamus statute as a
basis for finding jurisdiction over a portion of those three
respondents' claims. We have on numerous occasions declined to
decide whether the third sentence of § 405(h) bars mandamus
jurisdiction over claims arising under the Social Security Act,
either because we have determined that jurisdiction was otherwise
available under § 405(g),
see Califano v. Yamasaki,
442 U. S. 682,
442 U. S. 698
(1979);
Mathews v. Eldridge, supra, at
424 U. S. 332,
n. 12, or because we have determined that the merits of the
mandamus claim were clearly insubstantial,
Norton v.
Mathews, 427 U. S. 524,
427 U. S.
528-533 (1976). We need not decide the effect of the
third sentence of § 405(h) on the availability of mandamus
jurisdiction in Social Security cases here either.
Assuming without deciding that the third sentence of § 405(h)
does not foreclose mandamus jurisdiction in all Social Security
cases,
see generally Dietsch v. Schweiker, 700 F.2d 865,
867-868 (CA2 1983);
Ellis v. Blum, 643 F.2d 68, 78-82 (CA2
1981), the District Court did not err in dismissing respondents'
complaint here, because it is clear that no writ of mandamus could
properly issue in this case. The common law writ of mandamus, as
codified in 28 U.S.C. § 1361, is intended to provide a remedy for a
plaintiff only if he has exhausted all other avenues of relief, and
only if the defendant owes him a clear nondiscretionary duty.
See Kerr v.
United
Page 466 U. S. 617
States District Court, 426 U.
S. 394,
426 U. S.
402-403 (1976) (discussing 28 U.S.C. § 1651);
United
States ex rel. Girard Trust Co. v. Helvering, 301 U.
S. 540,
301 U. S.
543-544 (1937).
Here, respondents clearly have an adequate remedy in § 405(g)
for challenging all aspects of the Secretary's denial of their
claims for payment for the BCBR surgery, including any objections
they have to the instructions or to the ruling if either ultimately
should play a part in the Secretary's denial of their claims. The
Secretary's decision as to whether a particular medical service is
"reasonable and necessary," and the means by which she implements
her decision, whether by promulgating a generally applicable rule
or by allowing individual adjudication, are clearly discretionary
decisions.
See 42 U.S.C. § 1395ff(a);
see also Heckler
v. Campbell, 461 U. S. 458,
461 U. S. 467
(1983).
Thus, § 405(g) is the only avenue for judicial review of
respondents' Holmes', Vescio's, and Webster-Zieber's claims for
benefits, and, when their complaint was filed in District Court,
each had failed to satisfy the exhaustion requirement that is a
prerequisite to jurisdiction under that provision. We have
previously explained that the exhaustion requirement of § 405(g)
consists of a nonwaivable requirement that a "claim for benefits
shall have been presented to the Secretary,"
Mathews v.
Eldridge, 424 U.S. at
424 U. S. 328, and a waivable requirement that the
administrative remedies prescribed by the Secretary be pursued
fully by the claimant.
Ibid. All three respondents
satisfied the nonwaivable requirement by presenting a claim for
reimbursement for the expenses of their BCBR surgery, but none
satisfied the waivable requirement.
Respondents urge us to hold them excused from further
exhaustion, and to hold that the District Court could have properly
exercised jurisdiction over their claims under § 405(g). We have
held that the Secretary herself may waive the exhaustion
requirement when she deems further exhaustion futile,
Mathews
v. Diaz, 426 U. S. 67,
426 U. S. 76-77
(1976);
Page 466 U. S. 618
Weinberger v. Salfi, 422 U.S. at
422 U. S.
766-767. We have also recognized that, in certain
special cases, deference to the Secretary's conclusion as to the
utility of pursuing the claim through administrative channels is
not always appropriate. We held that
Mathews v. Eldridge,
supra, at
424 U. S.
330-332, was such a case, where the plaintiff asserted a
procedural challenge to the Secretary's denial of a pretermination
hearing, a claim that was wholly "collateral" to his claim for
benefits, and where he made a colorable showing that his injury
could not be remedied by the retroactive payment of benefits after
exhaustion of his administrative remedies.
The latter exception to exhaustion is inapplicable here where
respondents do not raise a claim that is wholly "collateral" to
their claim for benefits under the Act, and where they have no
colorable claim that an erroneous denial of BCBR benefits in the
early stages of the administrative process will injure them in a
way that cannot be remedied by the later payment of benefits. And
here, it cannot be said that the Secretary has in any sense waived
further exhaustion. In the face of the Secretary's vigorous
disagreement, the Court of Appeals concluded that the Secretary's
formal ruling denying payment for BCBR claims rendered further
exhaustion by respondents futile. But as we have pointed out above,
the administrative ruling is not even applicable to respondents'
claims, because they had their surgery before October 28, 1980. We
therefore agree with the Secretary that exhaustion is in no sense
futile for these three respondents, and that the Court of Appeals
erred in second-guessing the Secretary's judgment. [
Footnote 11]
Page 466 U. S. 619
Respondents also argue that there would be a presumption against
them as they pursue their administrative appeals because of the
very existence of the Secretary's instructions and her formal
ruling and thus that exhaustion would not fully vindicate their
claims. The history of this litigation as recited to us by
respondents belies that conclusion. Indeed, according to
respondents themselves, in every one of 170 claims filed with ALJs
between the time of the Secretary's instructions to her
intermediaries and the filing of this lawsuit, before the formal
ruling became effective, ALJs allowed recovery for BCBR claims.
Brief for Respondents 3. In promulgating the formal ruling, the
Secretary took pains to exempt from the scope of the ruling
individuals in respondents' position who may have had the surgery
relying on the favorable ALJ rulings. 45 Fed.Reg. 71427 (1980).
Although respondents would clearly prefer an immediate appeal to
the District Court, rather than the often lengthy administrative
review process, exhaustion of administrative remedies is in no
sense futile for these respondents, and they, therefore, must
adhere to the administrative procedure which Congress has
established for adjudicating their Medicare claims. [
Footnote 12]
Page 466 U. S. 620
III
Respondent Ringer is in a separate group from the other three
respondents in this case. He raises the same challenges to the
instructions and to the formal ruling as are raised by the other
respondents. His position is different from theirs, however,
because he wishes to have the operation and claims that the
Secretary's refusal to allow payment for it precludes him from
doing so. Because Ringer's surgery, if he ultimately chooses to
have it, would occur after the effective date of the formal ruling,
Ringer's claim for reimbursement, unlike that of the others, would
be covered by the formal ruling. Ringer insists that, just as in
the case of the other three respondents, the only relief that will
vindicate his claim is a declaration that the formal ruling, and
presumably the instructions as well, are invalid, and an injunction
compelling the Secretary to conclude that BCBR surgery is
"reasonable and necessary" within the meaning of the Medicare Act.
It is only after that declaration and injunction, Ringer insists,
that he will be assured of payment, and thus only then that he will
be able to have the operation.
Again, regardless of any arguably procedural components, we see
Ringer's claim as essentially one requesting the payment of
benefits for BCBR surgery, a claim cognizable only under § 405(g).
Our discussion of the unavailabilty of mandamus jurisdiction over
the claims of the other three respondents is equally applicable to
Ringer. As to § 1331 jurisdiction, as with the other three
respondents, all aspects of Ringer's claim "aris[e] under" the
Medicare Act in that the Medicare Act provides both the substance
and the standing for Ringer's claim,
Weinberger v. Salfi,
422 U.S. at
422 U. S.
760-761. Thus, consistent with our decision with respect
to the other three respondents, we hold that §§ 1331 and 1361 are
not
Page 466 U. S. 621
available as jurisdictional bases for vindicating Ringer's
claim.
Ringer's situation does differ from that of the other three
respondents in one arguably significant way. Because he has not yet
had the operation, and thus has no reimbursable expenses, it can be
argued that Ringer does not yet have a "claim" to present to the
Secretary, and thus that he does not have a "claim arising under"
the Medicare Act so as to be subject to § 405(h)'s bar to federal
question jurisdiction. The argument is not that Ringer's claim does
not "arise under" the Medicare Act as we interpreted that term in
Weinberger v. Salfi; it is rather that it has not yet
blossomed into a "claim" cognizable under § 405(g). We find that
argument superficially appealing, but ultimately unavailing.
Although it is true that Ringer is not seeking the immediate
payment of benefits, he is clearly seeking to establish a right to
future payments should he ultimately decide to proceed with BCBR
surgery.
See Attorney Registration & Disciplinary Comm'n v.
Schweiker, 715 F.2d 282, 287 (CA7 1983). The claim for future
benefits must be construed as a "claim arising under" the Medicare
Act because any other construction would allow claimants
substantially to undercut Congress' carefully crafted scheme for
administering the Medicare Act.
If we allow claimants in Ringer's position to challenge in
federal court the Secretary's determination, embodied in her rule,
that BCBR surgery is not a covered service, we would be inviting
them to bypass the exhaustion requirements of the Medicare Act by
simply bringing declaratory judgment actions in federal court
before they undergo the medical procedure in question.
Ibid. Congress clearly foreclosed the possibility of
obtaining such advisory opinions from the Secretary herself,
requiring instead that a claim could be filed for her scrutiny only
after the medical service for which payment is sought has been
furnished.
See 42 U.S.C. §§ 1395d(a), 1395f(a); 42 CFR §§
405.1662-495.1667 (1983). Under the
Page 466 U. S. 622
guise of interpreting the language of § 405(h), we refuse to
undercut that choice by allowing federal judges to issue such
advisory opinions. Thus it is not the case that Ringer has no
"claim" cognizable under § 405(g); it is that he must pursue his
claim under that section in the manner which Congress has provided.
Because Ringer has not given the Secretary an opportunity to rule
on a concrete claim for reimbursement, he has not satisfied the
nonwaivable exhaustion requirement of § 405(g). The District Court,
therefore, had no jurisdiction as to respondent Ringer.
With respect to our holding that there is no jurisdiction
pursuant to § 1331, the dissent argues that § 405(h) is not a bar
to § 1331 jurisdiction, because Ringer's challenge to the
Secretary's rule is "arising under" the Administrative Procedure
Act, not the Medicare Act.
Post at
466 U. S. 633.
But the dissent merely resurrects an old argument that has already
been raised and rejected before by this Court in
Weinberger v.
Salfi, supra. As we have already noted earlier,
supra, at
466 U. S. 615,
the Court rejected the argument that the claimant in
Salfi
could bring his constitutional challenge to a Social Security Act
provision in federal court pursuant to § 1331 because the claim was
"arising under" the Constitution, not the Social Security Act.
Ringer's claim may well "aris[e] under" the APA in the same sense
that Salfi's claim arose under the Constitution, but we held in
Salfi that the constitutional claim was nonetheless barred
by § 405(h). It would be anomalous indeed for this Court to breathe
life into the dissent's already discredited statutory argument in
order to give greater solicitude to an APA claim than the Court
thought the statute allowed it to give to the
constitutional claim in
Salfi.
The dissent suggests that
Salfi is distinguishable on
two grounds. First, it seems to suggest that
Salfi is
distinguishable because, after rejecting the claim that there was
jurisdiction under § 1331, the Court in
Salfiwent on to
conclude that there was jurisdiction under § 405(g).
Post
at
466 U. S.
633-635. We fail to see how the Court's conclusion that
the claimants in
Salfi had satisfied all of the
prerequisites to jurisdiction
Page 466 U. S. 623
under § 405(g) has anything at all to do with the proper
construction of § 405(h). If the dissent is suggesting that the
meaning of § 405(h) somehow shifts depending on whether a court
finds that the waivable and nonwaivable requirements of § 405(g)
are met in any given case, that suggestion is simply untenable.
Second, the dissent seems to suggest that
Salfi is
distinguishable because the claimants there appended a claim for
benefits to their claim for declaratory and injunctive relief as to
the unconstitutionality of the statute.
Post at
466 U. S.
635-637. Again, as we have already pointed out in text,
supra at
466 U. S.
615-616, there is no indication in
Salfi that
our holding in any way depended on the fact that the claimants
there sought an award of benefits. Furthermore, today we explicitly
hold that our conclusion that the claims of Holmes, Vescio, and
Webster-Zieber are barred by § 405(h) is in no way affected by the
fact that those respondents did not seek an award of benefits.
Supra at
466 U. S.
615-616. If the dissent finds that the fact that Ringer
does not expressly ask that he be paid benefits for his future
surgery [
Footnote 13] is
crucial to its conclusion that his claims are not barred under §
405(h), it is difficult to see why the dissent also does not
conclude that the claims of the other three respondents are not
barred by § 405(h) for the same reason.
The crux of the dissent's position as to § 1331 jurisdiction
then seems to be that Ringer's claims do not "arise under" the
Medicare Act so as to be barred by § 405(h), because Ringer and his
surgeon have not yet filed, and indeed cannot yet file, a concrete
claim for reimbursement because Ringer has not yet had BCBR
surgery. Thus, in the dissent's view, if a claimant wishes to claim
entitlement to benefits in advance
Page 466 U. S. 624
of undergoing the procedure for which payment is sought, his
claim does not "arise under" the Medicare Act, and hence he is not
precluded by § 405(h) from resorting to federal question
jurisdiction. But that argument amounts to no more than an
assertion that the substance of Ringer's claim somehow changes and
"arises under" another statute simply because he has not satisfied
the procedural prerequisites for jurisdiction which Congress has
prescribed in § 405(g).
The substance of Ringer's claim is identical to the substance of
the claims of the other three respondents, claims whose substance
and standing we have earlier concluded are derived from the
Medicare Act.
Supra at
466 U. S.
615-616. As we have earlier noted,
supra at
466 U. S. 620,
the fairest reading of the rather confusing amended complaint is
that all respondents, including Ringer, wish both to invalidate the
Secretary's rule and her instructions and to replace them with a
new rule that allows them to get payment for BCBR surgery. While it
is true that all of the respondents complain about the presumptive
nature of the Secretary's current rule, it is equally true that
they all -- including Ringer -- complain about the burden of
exhaustion of administrative remedies, and that they all seek
relief that will allow them to receive benefits, yet bypass that
administrative process altogether. App. 9-10; n. 13,
supra. With respect to the other three respondents, we
hold today that all their claims -- identical to Ringer's -- are
inextricably intertwined with what we hold is, in essence, a claim
for benefits, and that § 1331 jurisdiction over all their claims is
barred by § 405(h).
Supra at
466 U. S.
614-616. We decline to hold that the same claim asserted
by Ringer should somehow be characterized in a different way for
the purpose of § 1331 jurisdiction simply because Ringer has not
satisfied the prerequisites for jurisdiction under § 405(g).
With respect to our holding that Ringer has not satisfied the
nonwaivable requirement of § 405(g), the dissent adopts the
remarkable view that the Secretary's promulgation of a
Page 466 U. S. 625
rule regarding BCBR surgery satisfies that nonwaivable
requirement. The dissent would thus open the doors of the federal
courts in the first instance to everyone -- those who can and those
who cannot afford to pay their surgeons without reliance on
Medicare -- who thinks that he might be eligible to participate in
the Medicare program, who thinks that someday he might wish to have
some kind of surgery, and who thinks that this surgery might
somehow be affected by a rule that the Secretary has promulgated.
Of course, it is of no great moment to the dissent that, after
adjudicating his claim in federal court, that individual may simply
abandon his musings about having surgery. And it is of no great
moment to the dissent that Congress, who surely could have provided
a scheme whereby claimants could obtain declaratory judgments about
their entitlement to benefits, has instead expressly set up a
scheme that requires the presentation of a concrete claim to the
Secretary.
The dissent's declaratory judgment notion effectively ignores
the scheme which Congress has created, and does nothing less than
change the whole character of the Medicare system. The dissent
argues that its frustration of Congress' scheme can be limited to
the situation where the Secretary has promulgated a rule, or, in
the dissent's words, where she has "already issued an advisory
opinion" about a certain surgical procedure in the form of a
generally applicable rule.
Post at
466 U. S.
642-643. Such a quest for restraint is admirable, but
the logic of the dissent's position makes the quest futile. The
dissent's concern in this case is with those perhaps millions of
people, like Ringer, who desire some kind of controversial
operation but who are unable to have it because their surgeons will
not perform the surgery without knowing in advance whether they
will be victorious in challenging the Secretary's rule in the
administrative or later in the judicial process.
Post at
466 U. S.
629-630,
466 U. S. 643.
But that concern exists to the same degree with any claimant, even
in the absence of a generally applicable ruling by the Secretary.
For example, a
Page 466 U. S. 626
surgeon called upon to perform any kind of surgery for a
prospective claimant would, in the best of all possible worlds,
wish to know in advance whether the surgery is "reasonable and
necessary" within the meaning of the Medicare Act. And indeed some
such surgeons may well decline to perform the requested surgery
because of fear that the Secretary will not find the surgery
"reasonable and necessary," and thus will refuse to reimburse them.
The logic of the dissent's position leads to the conclusion that
those individuals, as well as Ringer, are entitled to an advance
declaration so as to ensure them the opportunity to have the
surgery that they desire.
Furthermore, the solution that the dissent provides for Ringer
-- allowing him to challenge the Secretary's rule in federal court
-- hardly solves the problem that the dissent identifies. It is
mere speculation to assume, as the dissent does,
post at
466 U. S.
636-637, that a surgeon who is unwilling to perform
surgery because of the existence of a rule will all of a sudden be
willing to perform the surgery if the rule is struck down. That
surgeon still faces a risk of not being paid in the administrative
process, a risk that may well cause him to refuse to perform the
surgery. The only sure way to ensure that all people desiring
surgery are able to have it is to allow all of them to go into
federal court or into the administrative process in advance of
their surgery and get declarations of entitlement. Surely not even
the dissent could sanction such a wholesale restructuring of the
Medicare system in the face of clear congressional intent to the
contrary.
IV
We hold that the District Court was correct in dismissing the
complaint as to all respondents. Respondents urge affirmance of the
Court of Appeals because
"elderly, ill and disabled citizens who [
sic] Congress
intended to benefit from Social Security Act programs actually have
suffered financially as well as physically"
from the Secretary's conclusion that BCBR surgery is never
"reasonable and necessary."
Page 466 U. S. 627
Brief for Respondents 31. But respondents Holmes,
Webster-Zieber, and Vescio are not subject to the Secretary's
formal ruling, and stood the chance of prevailing in administrative
appeals. Respondent Ringer has not undergone the procedure, and
could prevail only if federal courts were free to give declaratory
judgments to anyone covered by Medicare as to whether he would be
entitled to reimbursement for a procedure if he decided later to
undergo it.
In the best of all worlds, immediate judicial access for all of
these parties might be desirable. But Congress, in § 405(g) and §
405(h), struck a different balance, refusing declaratory relief and
requiring that administrative remedies be exhausted before judicial
review of the Secretary's decisions takes place. Congress must have
felt that cases of individual hardship resulting from delays in the
administrative process had to be balanced against the potential for
overly casual or premature judicial intervention in an
administrative system that processes literally millions of claims
every year. [
Footnote 14] If
the balance is to be struck anew, the decision must come from
Congress, and not from this Court.
The judgment of the Court of Appeals is accordingly
Reversed.
[
Footnote 1]
Title 42 U.S.C. § 405(g) provides in part as follows:
"Any individual, after any final decision of the Secretary made
after a hearing to which he was a party, irrespective of the amount
in controversy, may obtain a review of such decision by a civil
action commenced within sixty days after the mailing to him of
notice of such decision or within such further time as the
Secretary may allow. Such action shall be brought in the district
court of the United States for the judicial district in which the
plaintiff resides, or has his principal place of business, or, if
he does not reside or have his principal place of business within
any such judicial district, in the United States District Court for
the District of Columbia. . . . The court shall have power to
enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the Secretary,
with or without remanding the cause for a rehearing. The findings
of the Secretary as to any fact, if supported by substantial
evidence, shall be conclusive. . . . The judgment of the court
shall be final except that it shall be subject to review in the
same manner as a judgment in other civil actions."
[
Footnote 2]
The Secretary has recognized one exception which is not
applicable here. She has provided by regulation that, when the
facts and her interpretation of the law are not in dispute and when
the only factor precluding an award of benefits is a statutory
provision which the claimant challenges as unconstitutional, the
claimant need not exhaust his administrative remedies beyond the
reconsideration stage. 42 CFR §§ 405.718-405.718e (1983); 20 CFR §§
404.923-404.928 (1983).
[
Footnote 3]
BCBR, first performed in this country in the 1960's, involves
the surgical removal of the carotid bodies, structures the size of
a rice grain which are located in the neck and which control the
diameter of the bronchial tubes. Proponents of the procedure claim
that it reduces the symptoms of pulmonary diseases such as asthma,
bronchitis, and emphysema. Although the Secretary concluded that
BCBR for that purpose is not "reasonable and necessary" within the
meaning of the Medicare Act, she did note that the medical
community had accepted the procedure as effective for another
purpose, the removal of a carotid body tumor in the neck. 45
Fed.Reg. 71431 (1980).
[
Footnote 4]
Respondents objected to the denial of reimbursement for Part B
as well as the Part A expenses of BCBR surgery. Part B of the
Medicare Act, 42 U.S.C. § 1395j
et seq., establishes a
voluntary program of supplemental medical insurance covering
expenses not covered by the Part A program, such as reasonable
charges for physicians' services, medical supplies, and laboratory
tests. Payments for Part B expenses are made by private insurance
carriers under contract to the Department of Health and Human
Services, 42 U.S.C. § 1395u, and the claimant is entitled to
reconsideration of the carrier's initial denial of those claims. 42
CFR §§ 405.807405.860 (1983). Congress has not, however, provided
for judicial review of the denial of Part B claims.
See
Schweiker v. McClure, 456 U. S. 188
(1982);
United States v. Erika, Inc., 456 U.
S. 201 (1982). Thus, respondents seem to concede that,
to the extent that their claims are characterized as claims for
Part B benefits, there is no judicial review of those claims under
McClure and
Erika. Brief for Respondents 1, n. 1.
Respondents do argue, however, that, to the extent that their
claims can be characterized as collateral constitutional
challenges,
see n 7,
infra, those constitutional challenges are properly before
us. In light of our characterization of respondents' claims
essentially as claims for benefits,
see text at
466 U. S. 614,
and the fact that whatever constitutional claims respondents assert
are clearly too insubstantial to support subject matter
jurisdiction,
see Hagans v. Lavine, 415 U.
S. 528,
415 U. S.
536-538 (1974), we view this case as involving only
respondents' Part A claims.
[
Footnote 5]
Respondents requested certification of a class, App. 12, but the
District Court dismissed the complaint before ruling on the class
certification question.
[
Footnote 6]
Dr. Winter is also named as a plaintiff in the amended
complaint, but he is pressing no claims on his own behalf before
this Court, serving instead as a representative of BCBR claimants
pursuant to 20 CFR § 404.1700
et seq. (1983); Brief for
Respondents 6, n. 4. Because we find that there is no jurisdiction
as to the BCBR claimants whose claims are before this Court, there
is, of course, no jurisdiction as to their representative, Dr.
Winter.
[
Footnote 7]
In particular, respondents contend that the instructions and the
formal ruling barring payment for BCBR surgery violate the
requirement in 42 U.S.C. § 1395y(a)(1) that payment be made for
"reasonable and necessary" medical services, and that the policy is
arbitrary and capricious under the Administrative Procedure Act
(APA), 5 U.S.C. § 706(2), under the provision in 42 U.S.C. § 405(a)
authorizing the Secretary to issue "reasonable" rules, and under
the Due Process Clause of the Fifth Amendment. They contend that
requiring them to pursue administrative remedies in order to obtain
BCBR payment violates their rights to prompt administrative action
under 5 U.S.C. § 555(b) and § 706(2)(A). Finally, they argue that
the Secretary violated the rulemaking requirements of the APA, 5
U.S.C. § 553, in issuing the 1979 instructions and the 1980 formal
ruling. The complaint also stated objections, not pressed before
this Court, to the assignment of BCBR claims to an ALJ other than
the one who usually considers Dr. Winter's patients' claims, and to
the Secretary's assertion of control over the practice of medicine
allegedly in violation of constitutional and statutory
provisions.
[
Footnote 8]
Amici point out that the District Court failed to grant
respondents leave to amend their complaint to challenge the formal
ruling, and that the District Court did not, in fact, consider the
issues raised in the amended complaint. Brief for the Alliance of
Social Security Disability Recipients and the Gray Panthers as
Amici Curiae 7-8, n. 1. The amended complaint, however,
merely attacked the new ruling on the same grounds as had been
asserted to attack the instructions, and the District Court's
finding of no jurisdiction fairly can be read to apply to the
issues raised in the amended complaint as well. It is unclear
whether respondents contested the District Court's apparent failure
formally to grant the amendment, but in any event, the Court of
Appeals explicitly considered the issues raised in the amended
complaint. The Solicitor General has not objected in this Court to
the Court of Appeals' nor to our consideration of those issues, and
we will thus regard any possible objection to have been waived.
[
Footnote 9]
The Secretary's formal ruling states:
"
Effective Date: As explained above, we have previously
issued [a] policy in manual instructions excluding this service
from Medicare coverage. However, since ALJs and the Appeals Council
have ruled in several cases that claims for these services are
payable, it is possible that some beneficiaries, relying on these
rulings, have proceeded to have the operation performed in
expectation of Medicare payment. In fairness to those
beneficiaries, we are making the ruling effective for services
furnished after the date of publication [October 28, 1980]."
45 Fed.Reg. 71427 (1980). One ALJ already expressly has held
that the regulation is inapplicable to claimants whose BCBR surgery
was performed before October 28, 1980.
In re Benjamin Winter,
M. D., Representative for 12 Claimants (SSA Office Hearing
App. Feb. 27, 1982). Dr. Winter pursued that case administratively
during the pendency of this litigation on behalf of several of the
named respondents and other BCBR claimants.
See n 12,
infra. See
also Tr. of Oral Arg. 16-17.
[
Footnote 10]
That provision reads as follows:
"The findings and decisions of the Secretary after a hearing
shall be binding upon all individuals who were parties to the
hearing. No findings of fact or decision of the Secretary shall be
reviewed by any person, tribunal, or governmental agency except as
herein provided. No action against the United States, the
Secretary, or any officer or employee thereof shall be brought
under section 1331 or 1346 of title 28 to recover on any claim
arising under this subchapter."
42 U.S.C. § 405(h).
[
Footnote 11]
Respondents' reliance on
Mathews v. Diaz, 426 U. S.
67 (1976), is unavailing. In that case, plaintiffs
challenged the constitutionality of the duration of residency
requirement for enrollment in the Part B Medicare Program. We
concluded that the Secretary had waived further exhaustion because
he had stipulated that the plaintiffs' applications would be denied
on the basis of the challenged provision, and because he had
stipulated that the only issue before the courts was the
constitutionality of the provision, an issue beyond the Secretary's
competence.
Id. at
426 U. S. 76-77.
Here, however, the disputed question of coverage for BCBR surgery
is peculiarly within the Secretary's competence, and the formal
ruling, which respondents liken to the stipulated denial of
plaintiffs' applications in
Diaz, is not even applicable
to their claims.
[
Footnote 12]
We noted in
Weinberger v. Salfi, 422 U.
S. 749,
422 U. S. 765
(1975), that the purpose of the exhaustion requirement is to
prevent "premature interference with agency processes" and to give
the agency a chance "to compile a record which is adequate for
judicial review." This case aptly demonstrates the wisdom of
Congress' exhaustion scheme. Several respondents in this case
pursued their administrative remedies during the pendency of this
litigation,
see n 9,
supra, and the claims of respondents Holmes and
Webster-Zieber were denied on grounds not even related to the
instructions and rule which they now seek to challenge in federal
court. Further, the ALJ determined that the formal rule was not
even applicable to respondent Vescio's claim because of the date of
her surgery, and he thus concluded that additional evidence was
necessary to determine whether she was entitled to payment.
[
Footnote 13]
Of course, as we have pointed out, Ringer and the other
respondents come quite close to asking just that in asking the
federal court to invalidate the Secretary's rule and to compel the
Secretary to declare BCBR surgery "reasonable and necessary" within
the meaning of the Medicare Act.
Supra at
466 U. S.
610-611,
466 U. S. 614,
466 U. S. 620;
Brief for Respondents 1, 10; App. 25-26.
[
Footnote 14]
In 1982, there were 48 million claims filed under Part A of the
Medicare Program. Bureau of Program Operations, HCFA, U.S.
Department of Health and Human Services, B.P.O. Part A,
Intermediary Workload Report (May 1983).
JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
join, concurring in the judgment in part and dissenting in
part.
The Medicare Act is designed to insure the elderly against the
often crushing costs of medical care. [
Footnote 2/1] To that end, § 1862(a)(1) of the Act
guarantees payment of all expenses "reasonable and necessary for
the diagnosis or treatment of
Page 466 U. S. 628
illness or injury." [
Footnote
2/2] The Secretary has issued a formal ruling stating that she
will not pay the costs of bilateral carotid body resection (BCBR)
surgery performed after October 28, 1980, in order to treat
pulmonary distress because, for that purpose, BCBR is neither
medically reasonable nor necessary. 45 Fed.Reg. 71426-71427 (1980).
Respondents contend that the rule was not adopted in accord with
the relevant limitations on the Secretary's authority.
The three respondents who have undergone the BCBR procedure all
did so prior to October 28, 1980. The Secretary's ruling as of that
date does not prevent them from obtaining payment for BCBR, and in
fact states that they may prevail if they demonstrate that they
underwent the procedure in reliance on previous rulings indicating
that BCBR is reimbursable. [
Footnote
2/3] I agree with the Court that the Secretary's ruling does
not foreclose relief for them, and that it is therefore appropriate
to require them to exhaust their administrative remedies. If, after
the administrative process is complete, these respondents are
dissatisfied with the Secretary's decision, they may obtain
judicial review pursuant to § 205(g) of the Social Security Act.
[
Footnote 2/4]
Page 466 U. S. 629
The claim of respondent Ringer, however, stands on a different
footing. The complaint indicates that Ringer, "who is 68 years of
age, suffers from severe, chronic obstructive airways disease,
(
i.e., severe emphysema), cor pulmonale and right heart
strain," and that he is eligible for Medicare benefits and needs
the operation, [
Footnote 2/5] but
cannot afford it unless the Secretary agrees to pay for it.
[
Footnote 2/6] App. 10-11. The
Secretary, however, has formally ruled that she will not pay for
it, and has taken the position that Ringer cannot challenge her
ruling, except in a proceeding seeking reimbursement for the cost
of the surgery. Yet precisely because Ringer cannot afford the
surgery, the Secretary will not permit him to file a claim for
reimbursement, since he has incurred no expense that can be
reimbursed.
Today, the majority holds that Ringer must have the operation
that he cannot afford and cannot obtain because of the Secretary's
ruling before he can challenge that ruling. As I understand it, the
Court concludes that there is no federal question jurisdiction over
this case under 28 U.S.C. § 1331 [
Footnote 2/7]
Page 466 U. S. 630
because Ringer has a "claim arising under the Medicare Act,"
ante at
466 U. S. 621,
which cannot be asserted under § 1331 by virtue of § 205(h) of the
Social Security Act. [
Footnote 2/8]
Therefore, the Court continues, jurisdiction over this case can be
exercised, if at all, under § 205(g). Yet the Court also holds that
there is no jurisdiction under § 205(g), because Ringer has not
submitted a claim for reimbursement. Of course, the reason he has
not filed such a claim is that there is nothing to reimburse -- he
has incurred no expenses, because he cannot afford to do so.
Without anything to reimburse, the Secretary refuses to provide a
hearing on what she and the Court believe to be a nonexistent
"claim." Thus, the only way Ringer can pursue his § 205(g) remedy
is by doing something that the Secretary will not let him do.
Thus, it would seem, Ringer both does and does not have a claim
which arises under the Medicare Act. He cannot file a claim under
the Medicare Act until after he has the operation; he cannot have
the operation unless he can challenge the Secretary's ruling; and
he cannot challenge that ruling except in an action seeking
judicial review of the denial of a claim under the Medicare Act.
This one-eyed procedural analysis frustrates the remedial intent of
Congress as plainly as it frustrates this litigant's plea for a
remedy. The cruel irony is that a statute designed to help the
elderly in need of medical assistance is being construed to protect
from administrative absolutism only those wealthy enough to be able
to afford an operation and then seek reimbursement.
Page 466 U. S. 631
The Court's mistaken analysis of Ringer's claim stems from its
failure to recognize that the jurisdictional limitation in § 205(h)
refers only to actions "to recover on any claim arising under this
subchapter" -- claims that are within the jurisdictional grant in §
205(g). Section 205(h) is simply inapplicable to a claim that
cannot be asserted in an action under § 205(g), and hence does not
preclude the assertion of jurisdiction over such a claim under §
1331.
I
A careful reading of the plain language of the relevant statutes
indicates that the statutory scheme does not preclude jurisdiction
over Ringer's challenge to the Secretary's ruling under 28 U.S.C. §
1331. That is because the preclusive provision on which the Court
relies, § 205(h), simply does not apply to Ringer's claim.
[
Footnote 2/9]
Section 1869(a) of the Medicare Act provides that the
determination whether an individual is entitled to Medicare
benefits shall be made by the Secretary pursuant to prescribed
regulations. [
Footnote 2/10]
Since the Secretary and the Court agree that Ringer has submitted
no "claim" on which the Secretary
Page 466 U. S. 632
could have acted, [
Footnote
2/11] it is perfectly clear that the Secretary has made no
determination pertaining to Ringer that is covered by § 1869(a).
[
Footnote 2/12] Section
1869(b)(1)(C) states that an individual "dissatisfied with any
determination made under subsection (a)" is entitled to the kind of
hearing authorized by § 205(b) of Title II of the Social Security
Act, and to judicial review as prescribed in § 205(g) of that
Title. [
Footnote 2/13] Since
there has been no "determination" in this case, this provision does
not apply to Ringer either. [
Footnote
2/14]
We come then to § 1872, which, in relevant part, provides that §
205(h) shall "apply with respect to this subchapter to the same
extent as [it is] applicable with respect to subchapter II of this
chapter." [
Footnote 2/15] Nowhere
in this reticulated
Page 466 U. S. 633
statutory scheme is there any requirement that every "question"
arising under the Medicare Act must be litigated in an action
brought under § 205(g). Quite the contrary § 1872 applies § 205(h)
to "this subchapter,"
i.e., to the provisions concerning
reimbursement determinations contained in § 1869. Yet not one of
the provisions in that section is relevant to Ringer. Ringer's
claim is not the type of claim covered by "this subchapter," since
the subchapter applies only to the type of hearing provided for in
§ 205(b). What Ringer seeks is not the type of hearing provided for
in § 205(b), which would arise under "this subchapter," but instead
an action under the right-of-review provisions of the
Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706. [
Footnote 2/16] Hence, 28 U.S.C. § 1331
provides jurisdiction to entertain such a claim.
See Califano
v. Sanders, 430 U. S. 99
(1977).
This analysis is confirmed by
Weinberger v. Salfi,
422 U. S. 749
(1975). In that case, on which the majority relies so heavily, the
Court held that, when a claimant seeks payment of benefits under
the Social Security Act, his claim "arises under" that Act within
the meaning of § 205(h), and hence may not be brought pursuant to
28 U.S.C. § 1331. [
Footnote 2/17]
The obvious difference between this case and
Salfi is that
Salfi had a claim which could be raised under §§ 205(b) and (g);
indeed the Court upheld the exercise of jurisdiction over that case
under § 205(g).
See 422 U.S. at
422 U. S.
763-767. Salfi
Page 466 U. S. 634
therefore had a "claim" under the Social Security Act, and fell
within the literal language of § 205(h) because he had filed an
application for payment of benefits; review of the decision on such
an application falls within the preclusive provisions of §
205(h):
"The entitlement sections of the Act specify the filing of an
application as a prerequisite to entitlement, so a court could not
in any event award benefits absent an application. . . . Once the
application is filed, it is either approved, in which event any
suit for benefits would be mooted, or it is denied. Even if the
denial is nonfinal, it is still a 'decision of the Secretary'
which, by virtue of the second sentence of § [2]05(h), may not be
reviewed save pursuant to §[2]05(g)."
422 U.S. at
422 U. S. 759,
n. 6. Thus, what
Salfi holds is that § 205(h) "precludes
federal question jurisdiction in an action challenging denial of
claimed benefits."
Mathews v. Eldridge, 424 U.
S. 319,
424 U. S. 327
(1976).
In contrast to Salfi, Ringer has no "claim" within the meaning
of the Social Security Act -- because he is unable to have the
operation, he cannot file an application for reimbursement, and no
"decision of the Secretary" has been made denying such a claim
[
Footnote 2/18] which could fall
under § 205(h). Hence he
Page 466 U. S. 635
does not fall within the preclusive language of § 205(h), which
requires the existence of a "claim arising under the Social
Security Act." Section 205(h) cannot operate in this context as it
was intended -- "to route review through § 205(g)."
Sanders, 430 U.S. at
430 U. S. 103,
n. 3. It thus simply has no application. Because Ringer cannot
afford the operation and obtain judicial review under the relevant
provisions of the Medicare Act, he has no "claim" that "arises
under" that Act, and is unable to generate one. [
Footnote 2/19]
There is yet another fundamental reason why § 205(h) does not
preclude Ringer's claim. Section 205(h) precludes only actions "to
recover" on a claim arising under the Social Security Act. That
language plainly refers to an action in which the claimant seeks
payment of benefits. Indeed, as I observed
Page 466 U. S. 636
above,
Salfi stressed that the claimant in that case
sought the payment of benefits. [
Footnote 2/20] Today's majority finds § 205(h)
applicable because Ringer "is clearly seeking to establish a right
to future payments should he ultimately decide to proceed with BCBR
surgery."
Ante at
466 U. S. 621. If Ringer were seeking payment of
benefits, this might well be a different case, but that is plainly
not what he seeks. Ringer seeks a declaration that the Secretary's
BCBR rule is invalid and an injunction against its operation. He
alleges that it is the "irrefutable presumption" contained in the
rule -- which denies administrative law judges discretion to decide
in a hearing under § 205(b) whether BCBR is reimbursable -- that
prevents him from having the operation. [
Footnote 2/21] Ringer disavows any desire to obtain a
judicial determination that benefits must be paid to him. Brief for
Respondents 6-7. Thus, Ringer is not seeking "to recover." Instead
he seeks an injunction against this "irrefutable presumption." Such
an injunction would not result in the payment of benefits, but
merely remove the hurdle to his having the operation, since, under
those circumstances, his physician would have some hope of
obtaining reimbursement through the administrative process.
[
Footnote 2/22]
"Unlike the plaintiff in [
Salfi], whose action was the
run-of-mine type clearly fitting the language 'to recover
Page 466 U. S. 637
on any claim arising under' Title II, the plaintiff in this case
. . . raises only a procedural challenge, the adjudication of which
will not affect the substantive question of continued entitlement
to [Medicare] benefits."
Ells v. Blum, 643 F.2d 68, 82 (CA2 1981) (Friendly,
J.). [
Footnote 2/23]
Ringer is not seeking to "bypass the exhaustion requirements of
the Medicare Act,"
ante at
466 U. S. 621,
but rather to be able to exhaust -- something he can only do if the
rule is enjoined so that he and his surgeon can seek reimbursement
through the administrative process. [
Footnote 2/24] Ringer's challenge to the operation of a
rule that prevents him from having a "claim" he can pursue under §
205 is therefore not a claim covered by § 205(h) -- it is a
challenge to a procedural rule that could prove meritorious even if
Ringer is ultimately not entitled to reimbursement. Hence it can be
asserted under § 1331.
II
Unfortunately the majority's errors in this case are not limited
to its construction of § 205(h). For even if we assume that §
205(h) is applicable to Ringer's case, and that he can obtain
judicial review only through § 205(g), the majority's disposition
would still be incorrect.
Page 466 U. S. 638
Section 205(g) contains three jurisdictional prerequisites to
judicial review: a "[1] final [2] decision of the Secretary [3]
made after a hearing. . . ." [
Footnote 2/25] In
Salfi, the Court decided
that the first and third elements are "waivable" upon an
appropriate showing, whereas the second element is nonwaivable, and
must be satisfied in all cases before judicial review may be
obtained.
See 422 U.S. at
422 U. S.
764-767.
Ringer has plainly satisfied the nonwaivable element. While
"some decision by the Secretary is clearly required by the
statute,"
Mathews v. Eldridge, 424 U.S. at
424 U. S. 328,
[
Footnote 2/26] the Secretary has
made a decision here. By issuing the challenged BCBR regulation,
she decided that BCBR can in no event be reimbursable. If that is
not a "decision of the Secretary," I do not know what is. The fact
that Ringer himself has not raised his legal arguments concerning
the BCBR regulation in the administrative process is irrelevant, as
Eldridge makes clear. There, the claimant did not raise
his constitutional challenge to procedures the Secretary had
adopted by regulation in the administrative process, yet the Court
held that the nonwaivable element had been satisfied, since the
Secretary had already made clear what his "decision" was with
respect to Eldridge's challenge through the issuance of the
disputed regulations:
"It is unrealistic to expect that the Secretary would consider
substantial changes in the current administrative review system at
the behest of a single aid recipient raising a constitutional
challenge in an adjudicatory context."
Id. at
424 U. S. 330.
It is similarly unrealistic to think that the Secretary would
reconsider her BCBR regulation in the context of a single
adjudicatory proceeding.
Page 466 U. S. 639
The regulation was issued to prevent claimants from litigating
the reimbursability of BCBR in an adjudicatory context. Thus, the
relevant decision of the Secretary here could not be any decision
made in the administrative process; rather, it is the decision to
issue the BCBR regulation. That "decision of the Secretary"
satisfies the nonwaivable portion of § 205(g). [
Footnote 2/27]
The waivable elements are satisfied as well. In
Salfi,
the Court held that waiver was appropriate when there is no chance
that the claimant could prevail in the administrative process. In
such circumstances,
"further exhaustion would not merely be futile for the
applicant, but would also be a commitment of administrative
resources unsupported by any administrative or judicial
interest."
422 U.S. at
422 U. S.
765-766. [
Footnote
2/28] Here, just as in
Salfi, "a hearing [would] be
futile and wasteful."
Id. at
422 U. S. 767.
[
Footnote 2/29] The Secretary has
stipulated that, if
Page 466 U. S. 640
Ringer had the operation and filed a claim for reimbursement, it
would be denied under the BCBR regulation. App. 32. Since the
Secretary
"stipulated in the District Court that [Ringer]'s application
would be denied, . . . we treat the stipulation in the District
Court as tantamount to a decision denying the application and as a
waiver of the exhaustion requirements."
Mathews v. Diaz, 426 U. S. 67,
426 U. S. 76-77
(1976). Requiring the administrative process to be invoked so it
can be determined whether applications such as Ringer's could also
be denied on some other ground would simply be "a commitment of
administrative resources unsupported by any administrative or
judicial interest," especially since Ringer is not seeking the
payment of benefits at this juncture. When a case is ripe for
summary judgment because of a dispositive legal question, we do not
require district courts to hold a trial anyway to determine if the
complaint might be meritless on some other ground. It makes no more
sense to impose such a requirement in the context of § 205(g).
[
Footnote 2/30] Indeed, in light
of the dispositive rule, there is no reason to believe that the
Secretary would waste her resources by holding a hearing to see if
Ringer's claim could be denied on some other ground, and the
Secretary has not represented that such a hearing in fact would be
held.
Moreover, even if a claim such as Ringer's should ordinarily be
exhausted, the waivable element is satisfied when there is a
"colorable claim" that the claimant will be injured if forced to
exhaust in a way that cannot be remedied by later payment of
benefits.
Ante at
466
U.S. 617-618. Ringer clearly has such a claim. He suffers
from serious pulmonary distress, and represents that, if he does
not get BCBR, he faces a risk
Page 466 U. S. 641
of continued deterioration in his health, and even death.
[
Footnote 2/31] Surely, the
injury Ringer faces while awaiting judicial review -- which, on the
majority's view, he in any event can never obtain, because of his
inability to afford the operation -- constitutes a collateral
injury not remedied even if Ringer somehow could exhaust his
administrative "remedy."
"To allow a serious illness to go untreated until it requires
emergency hospitalization is to subject the sufferer to the danger
of a substantial and irrevocable deterioration in his health.
Cancer, heart disease, or respiratory illness, if untreated for a
year, may become all but irreversible paths to pain, disability,
and even loss of life. The denial of medical care is all the more
cruel in this context, falling as it does on indigents who are
often without the means to obtain alternative treatment."
Memorial Hospital v. Maricopa County, 415 U.
S. 250,
415 U. S. 261
(1974) (footnote omitted).
Thus, Ringer
"has raised at least a colorable claim that, because of his
physical condition and dependency on [Medicare] benefits, an
erroneous termination would damage him in a way not recompensable
through retroactive payments."
Eldridge, 424 U.S. at
424 U. S. 331
(footnote omitted). Ringer should be permitted to challenge the
BCBR rule which causes this injury without satisfying the waivable
requirements of § 205(g). [
Footnote
2/32]
Page 466 U. S. 642
Thus, jurisdiction over this case is appropriate under § 205(g).
The Secretary has surely made a "decision" on BCBR within the
meaning of that statute, and to require further pursuit of
adjudicatory remedies when the purpose of the challenged rule is to
preclude adjudication is a potentially tragic exercise in
futility.
III
The Court's inability to find a jurisdictional basis for
Ringer's challenge to the Secretary's formal ruling stems in part
from a concern that the Secretary and the federal courts would
otherwise be flooded by requests for advisory opinions by
individuals contemplating various forms of medical treatment. There
is no need to evaluate this purely hypothetical concern, because
this case presents no question concerning Ringer's "right" to an
advisory opinion or the Secretary's "duty" to provide one. We may
assume that the Secretary is under no duty to volunteer an opinion
on the reimbursability of a given procedure, and yet sustain
Ringer's claim. The reason is simple -- the Secretary has already
issued an advisory opinion on BCBR. That is exactly what her BCBR
regulation is. The regulation was specifically designed to prevent
this issue from arising in a concrete adjudicatory context. Indeed,
her ruling is far more significant than mere advice; it is a formal
pronouncement directing the bureaucracy under her command to reject
all claims for reimbursement for BCBR surgery, despite the uniform
course of decision by a variety of Administrative Law Judges, as
well as the Secretary's Appeals Council, that such claims qualify
for reimbursement. Thus, this is not a case concerning a "right" to
an advisory opinion. Rather, this case poses the question whether,
once the Secretary issues a rule which has the effect of denying a
Medicare beneficiary surgery, that beneficiary may obtain judicial
review as to the validity of the rule. [
Footnote 2/33] I see no reason why that question should
be answered
Page 466 U. S. 643
negatively. Medicare beneficiaries can obtain judicial review of
all of the Secretary's adjudicatory decisions that deny them
benefits; I am certain that Congress did not intend to preclude
judicial review of the Secretary's legislative decisions which have
the same effect. [
Footnote
2/34]
IV
The majority has decided that it is proper to prevent a citizen
from ever challenging a rule which denies him surgery he
desperately needs. Ringer cannot afford the operation, and
therefore his "claim" can never be "pursued" in a reimbursement
proceeding. In making this decision, the Court ignores a basic
proposition of administrative law. What Justice Harlan wrote for
the Court in
Abbott Laboratories v. Gardner, 387 U.
S. 136 (1967), illustrates the point:
Page 466 U. S. 644
"The first question we consider is whether Congress, by the
Federal Food, Drug, and Cosmetic Act, intended to forbid
preenforcement review of this sort of regulation promulgated by the
Commissioner. The question is phrased in terms of 'prohibition,'
rather than 'authorization,' because a survey of our cases shows
that judicial review of a final agency action by an aggrieved
person will not be cut off unless there is persuasive reason to
believe that such was the purpose of Congress. Early cases in which
this type of judicial review was entertained have been reinforced
by the enactment of the Administrative Procedure Act, which
embodies the basic presumption of judicial review to one"
"suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a
relevant statute,"
5 U.S.C. § 702, so long as no statute precludes such relief or
the action is not one committed by law to agency discretion, 5
U.S.C. § 701(a). The Administrative Procedure Act provides
specifically not only for review of "[a]gency action made
reviewable by statute," but also for review of "final agency action
for which there is no other adequate remedy in a court," 5 U.S.C. §
704. The legislative material elucidating that seminal act
manifests a congressional intention that it cover a broad spectrum
of administrative actions, and this Court has echoed that theme by
noting that the Administrative Procedure Act's "generous review
provisions" must be given a "hospitable" interpretation. Again, in
Rusk v. Cort,
[
369 U.S.
367,
369 U. S.
379-380 (1967)], the Court held that only upon a showing
of "clear and convincing evidence" of a contrary legislative intent
should the courts restrict access to judicial review.
Id. at
387 U. S.
139-141 (citations omitted).
As Justice Harlan indicated,
Abbott is but one in a
long line of cases holding that nothing less than clear and
convincing
Page 466 U. S. 645
evidence of legislative intent to preclude judicial review is
required before a statute will be construed to preclude the
citizen's right to seek judicial redress for violations of his
rights. [
Footnote 2/35]
Salfi itself applied this presumption to the Social
Security Act, and construed § 205(h) to preclude judicial review in
that case only because review was available under § 205(g). 422
U.S. at
422 U. S. 762.
In our system of government under law, administrative absolutism is
not the rule, but only the narrow exception.
In this case, Ringer, whose only sin is that he is unable to
afford BCBR surgery, is denied access to any judicial review of
what we must take to be a rule that violates the Secretary's
statutory duty to assure reimbursement of necessary and reasonable
medical expenses under a health insurance program. Because he
cannot afford the surgery, he will never be able to seek
administrative or judicial review.
"Here . . . 'absence of jurisdiction of the federal courts'
would mean 'a sacrifice or obliteration of a right which Congress
has given,' . . . for there is no other means within [Ringer's]
control, to protect and enforce that right. And 'the inference [is]
strong that Congress intended the statutory provisions governing
the general jurisdiction of those courts to control.' This Court
cannot lightly infer that Congress does not intend judicial
protection of rights it confers against agency action taken in
excess of delegated powers."
Leedom v. Kyne,
Page 466 U. S. 646
358 U. S. 184,
358 U. S. 190
(1958) (citations omitted) (quoting
Switchmen v. National
Mediation Board, 320 U. S. 297,
320 U. S. 300
(1943))
When the issue is properly phrased in terms of whether there is
clear and convincing evidence that Congress intended to preclude
judicial review of such a case, it is essential to remember that
the entire statutory scheme was enacted for the benefit of the
aged, the infirm, and the impoverished. It was the medically needy
that Congress sought to aid through the provision of health
insurance under the Medicare program. Yet those most in need of
comprehensive medical insurance are those with the least ability to
assert their statutory right to such insurance under the majority's
approach. In telling Ringer that "he must pursue his claim" under §
205(g), the Court indicates that he will have the "right" to
judicial review only if he can pay for it -- and he cannot.
"To sanction such a ruthless consequence . . . would justify a
latter-day Anatole France to add one more item to his ironic
comments on the 'majestic equality' of the law."
"The law, in its majestic equality, forbids the rich as well as
the poor to sleep under bridges, to beg in the streets, and to
steal bread."
Griffin v. Illinois, 351 U. S. 12,
351 U. S. 23
(1956) (Frankfurter, J., concurring in judgment). On the majority's
view, it would appear the rich and the poor alike also have the
right to front the money for major surgery. I cannot believe that
is what Congress intended, or what our precedents require.
Of course, the integrity of the administrative exhaustion
mechanism created by Congress is vital, and the Act should not be
construed in a way that would undermine that system. But all Ringer
seeks to do is challenge a rule that prevents him from having the
operation and then seeking reimbursement through the statutory
review system. It is not Ringer who is bypassing the administrative
review system, but the
Page 466 U. S. 647
Secretary, whose BCBR rule prevents persons such as Ringer from
seeking administrative review of a concrete claim for benefits. I
can find no evidence, much less clear and convincing evidence, that
Congress intended to prohibit judicial review in these
circumstances.
Ringer does not seek payment of benefits under the Medicare Act,
but rather to challenge a rule that prevents him from ever filing a
claim for reimbursement under that Act. Therefore I would hold that
Ringer is not seeking "to recover on a claim" under the Social
Security Act, and hence federal jurisdiction over his claim is not
barred by § 205(h) of that Act. Moreover, even if § 205(h) applied
here, I would not require Ringer to pursue administrative review
which is manifestly futile. Accordingly, while I concur in the
Court's disposition of the claims asserted by the respondents who
have had BCBR surgery, I respectfully dissent from its disposition
of respondent Ringer's claim.
[
Footnote 2/1]
See, e.g., H.R.Rep. No. 213, 89th Cong., 1st Sess.,
20-22, 63-64 (1965); S.Rep. No. 404, 89th Cong., 1st Sess., 73-74
(1965).
[
Footnote 2/2]
"Notwithstanding any other provision of this subchapter, no
payment may be made under part A or part B for any expenses
incurred for items or services -- "
"(1) which are not reasonable and necessary for the diagnosis or
treatment of illness or injury or to improve the functioning of a
malformed body member,"
42 U.S.C. § 1395y(a)(1).
[
Footnote 2/3]
"As explained above, we have previously issued [a] policy in
manual instructions excluding this service from Medicare coverage.
However, since [Administrative Law Judges] and the Appeals Council
have ruled in several cases that claims for these services are
payable, it is possible that some beneficiaries, relying on these
rulings, have proceeded to have the operation performed in
expectation of Medicare payment. In fairness to those
beneficiaries, we are making the ruling effective for services
furnished after the date of publication."
45 Fed.Reg. 71427 (1980).
[
Footnote 2/4]
In pertinent part that section provides:
"(g) Judicial review"
"Any individual, after any final decision of the Secretary made
after a hearing to which he was a party, irrespective of the amount
in controversy, may obtain a review of such decision by a civil
action commenced within sixty days after the mailing to him of
notice of such decision or within such further time as the
Secretary may allow. Such action shall be brought in the district
court of the United States for the judicial district in which the
plaintiff resides, or has his principal place of business, or, if
he does not reside or have his principal place of business within
any such judicial district, in the United States District Court for
the District of Columbia."
42 U.S.C. § 405(g).
[
Footnote 2/5]
The Secretary stipulated that each of the respondents would
testify that he has been diagnosed as suffering from severe lung
disease, that each has experienced severe breathing difficulties as
a symptom of his or her illness, and that BCBR surgery has been
prescribed to alleviate the symptoms of their lung diseases. The
respondents are all Medicare beneficiaries eligible for statutory
benefits. App. 32.
[
Footnote 2/6]
The Secretary stipulated that Ringer will testify that he has
had prescribed and desires to undergo BCBR surgery but is unable to
pay the cost thereof.
Ibid.
[
Footnote 2/7]
That section provides:
"The district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties of
the United States."
[
Footnote 2/8]
That subsection provides:
"Finality of Secretary's decision"
"The findings and decisions of the Secretary after a hearing
shall be binding upon all individuals who were parties to such
hearing. No findings of fact or decision of the Secretary shall be
reviewed by any person, tribunal, or governmental agency except as
herein provided. No action against the United States, the
Wecretary, or any officer or employee thereof shall be brought
under sections 1331 or 1346 of title 2 to recover on any claim
arising under this subchapter."
42 U.S.C. § 405(h).
[
Footnote 2/9]
The Court's analysis is confined to the question whether
Ringer's action is one "arising under" the Medicare Act; it never
attempts to construe the immediately preceding words in § 205(h):
"any claim to recover."
See ante at
466 U. S.
621-624. The majority thereby is able to attack a straw
man, since, by focusing only on the words "arising under," it
avoids the question of how Ringer can have "any claim to recover
arising under" that Act when he cannot submit any claim for
Medicare benefits because he cannot afford the operation. Since
Ringer cannot have the operation and is not seeking reimbursement,
he has nothing on which he can recover. When the statute is read as
a whole, the flaw in the Court's analysis becomes apparent.
[
Footnote 2/10]
Section 1869(a) provides:
"Entitlement to and amount of benefits"
"The determination of whether an individual is entitled to
benefits under part A or part B, and the determination of the
amount of benefits under part A, shall be made by the Secretary in
accordance with regulations prescribed by him."
42 U.S.C. § 1395ff(a).
[
Footnote 2/11]
See ante at
466 U. S. 622;
Brief for Petitioner 37.
[
Footnote 2/12]
In fact, Ringer wrote the Secretary a letter seeking such a
determination, but was told that no determination could be made
unless he had the surgery and then sought reimbursement. Respondent
Vescio also could not afford the operation. Eventually her
condition deteriorated to the point where her physician agreed to
operate without any assurance of payment. Ms. Vescio died a little
more than a year after the operation. Brief for Respondents 9, and
n. 10.
[
Footnote 2/13]
"(1) Any individual dissatisfied with any determination under
subsection (a) of this section as to -- "
"
* * * *"
"(C) the amount of benefits under part A (including a
determination where such amount is determined to be zero)"
"shall be entitled to a hearing thereon by the Secretary to the
same extent as is provided in section 405(b) of this title and to
judicial review of the Secretary's final decision after such
hearing as is provided in section 405(g) of this title."
42 U.S.C. § 1395ff(b)(1)(C).
[
Footnote 2/14]
This is made even clearer by the fact that § 1869(b)(1)(C) also
provides for the applicant's right to an administrative hearing as
provided by § 205(b) and "to judicial review of the Secretary's
final decision after such hearing as is provided in § [2]05(g)."
Because Ringer's action is not such a challenge, the provisions of
§ 1869 have no application here.
[
Footnote 2/15]
Section 1872 reads as follows:
"The provisions of sections 406 and 416(j) of this title, and of
subsections (a), (d), (e), (f), (h), (i), (j), (k), and (1) of
section 405 of this title, shall also apply with respect to this
subchapter to the same extent as they are applicable with respect
to subchapter II of this chapter."
42 U.S.C. § 1395ii.
[
Footnote 2/16]
In particular, the APA provides:
"A person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning
of a relevant statute, is entitled to judicial review thereof. . .
."
5 U.S.C. § 702.
"Agency action made reviewable by statute and final agency
action for which there is no other adequate remedy in a court are
subject to judicial review. . . ."
§ 704.
[
Footnote 2/17]
It should be noted that the portion of
Salfi on which
the majority relies is dicta. Since the Court held that it had
jurisdiction over that case under § 205(g), its discussion of the
preclusive effect of § 205(h) was unnecessary to the decision in
that case.
See 422 U.S. at
422 U. S.
787-788 (BRENNAN, J., dissenting).
[
Footnote 2/18]
The Solicitor General makes this point very clearly:
"As typically is the case in insurance programs generally, a
claim may be filed under Medicare (thereby invoking the
administrative process that must precede the right to judicial
review under 42 U.S.C. 405(g)) only
after the individual
has been furnished the services for which payment is sought.
See 42 U.S.C. (& Supp. V) 1395c, 1395d(a), 1395f(a),
1395ff(b) and 405(b); 42 CFR 405.1662-405.1667. Congress obviously
appreciated that the task of administering the Medicare Program
would be burdensome enough with the processing of concrete claims
for services already rendered, without also providing for a scheme
by which an individual could obtain a declaratory ruling on whether
certain services would be covered should the individual elect to
obtain them in the future."
Brief for Petitioner 37, n. 26 (emphasis in original).
[
Footnote 2/19]
There is a wealth of authority in the lower courts for the
proposition that, when the Social Security Act provides no avenue
for review, there is no claim arising under that Act within the
meaning of § 205(h), and hence no bar to jurisdiction under 28
U.S.C. § 1331.
See National Assn. of Home Health Agencies v.
Schweiker, 223 U.S.App.D.C. 209, 217-218, 690 F.2d 932,
940-942 (1982),
cert. denied, 459 U.S. 1205 (1983);
Chelsea Community Hospital, SNF v. Michigan Blue Cross
Assn., 630 F.2d 1131, 1133-1136 (CA6 1980);
Humana of
South Carolina, Inc. v. Califano, 191 U.S.App.D.C. 368,
374-375, 590 F.2d 1070, 1076-1077 (1978);
Overlook Nursing
Home, Inc. v. United States, 214 Ct.Cl. 60, 64-65, 556 F.2d
500, 502 (1977);
Hazelwood Chronic & Convalescent Hospital,
Inc. v. Weinberger, 543 F.2d 703, 706-707 (CA9 1976);
Whitecliff, Inc. v. United States, 210 Ct.Cl. 53, 66-59,
536 F.2d 347, 350-351 (1976),
cert. denied, 430 U.S. 969
(1977);
Rothman v. Hospital Service of Southern
California, 510 F.2d 956, 958-959 (CA9 1975);
Kingsbrook
Jewish Medical Center v. Richardson, 486 F.2d 663, 666-668
(CA2 1973);
Mid Atlantic Nephrology Center, Ltd. v.
Califano, 433 F. Supp.
23, 31-32 (Md.1977);
Hillside Community Hospital of Ukiah
v. Mathews, 423 F.
Supp. 1168, 1172-1173 (ND Cal.19, 6);
Americana Nursing
Center, Inc. v. Weinberger, 387 F.
Supp. 1116, 1118 (SD Ill.1975);
Mount Sinai Hospital of
Greater Miami, Inc. v. Weinberger, 376 F.
Supp. 1099,
1005-1108
(SD Fla.1974),
rev'd on other grounds, 517 F.2d 329 (CA5
1975),
modified, 522 F.2d 179,
cert. denied, 425
U.S. 935 (1976);
Gainville v. Richardson, 319 F. Supp.
16, 18 (Mass.1970) (three-judge court).
[
Footnote 2/20]
See supra at
466 U. S.
633-635.
See also 422 U.S. at
422 U. S.
760-761.
[
Footnote 2/21]
App. 10-11.
See also Brief for Respondents 9,
26-29.
[
Footnote 2/22]
In this connection, it must be remembered that surgeons have had
remarkable success in winning cases before Administrative Law
Judges concerning BCBR surgery. The parties stipulated that, as of
the date the BCBR regulation was issued, at least 199 appeals of
denials of Medicare reimbursement for BCBR surgery had been heard
by Administrative Law Judges. Of these, reimbursement was ordered
in at least 170 cases, and at least 12 cases were dismissed as
premature. Decisions ordering reimbursement had been rendered by at
least 10 different Administrative Law Judges and the three judges
of the Secretary's Appeals Council. App. 32. It was this success
which led to the promulgation of the challenged rule.
[
Footnote 2/23]
See National Assn. of Home Health Agencies v.
Schweiker, 223 U.S.App.D.C. at 213-214, 690 F.2d at 936-937;
Humana of South Carolina, Inc. v. Califano, 191
U.S.App.D.C. at 378-379, 590 F.2d at 1080-1081;
Mid Atlantic
Nephrology Center, Ltd. v. Califano, 433 F.Supp. at 31-32;
Gainville v. Richardson, 319 F. Supp. at 18 (three-judge
court).
See also Griffin v. Richardson, 346 F.
Supp. 1226, 1230 (Md.) (three-judge court),
summarily
aff'd, 409 U.S. 1069 (1972).
[
Footnote 2/24]
As a result, the majority's statement that "Ringer has not given
the Secretary an opportunity to rule on a concrete claim for
reimbursement,"
ante at
466 U. S. 622,
has a somewhat callous tone. Ringer would like nothing more than to
give the Secretary that opportunity. It is the challenged rule
which prevents Ringer from having the operation and giving the
Secretary "an opportunity" to rule on his claim for
reimbursement.
[
Footnote 2/25]
See 466
U.S. 602fn2/4|>n. 4,
supra. Section 205(g) also
contains a statute of limitations and a venue requirement.
"As such, they are waivable by the parties, and not having been
timely raised below,
see Fed.Rules Civ.Proc. 8(c),
12(h)(1), need not be considered here."
422 U.S. at
422 U. S.
764.
[
Footnote 2/26]
See also Heckler v. Lopez, 464 U.
S. 879, 883 (1983) (STEVENS, J., dissenting in part) (on
motion to vacate stay);
Schweiker v. Wilson, 450 U.
S. 221,
450 U. S. 228,
n. 8 (1981);
Califano v. Sanders, 430 U. S.
99,
430 U. S. 108
(1977).
[
Footnote 2/27]
Thus, the majority's characterization of the nonwaivable
requirement as "presenting a claim for reimbursement" to the
Secretary,
ante at
466
U.S. 617, is not quite correct. What the plain language of
the statute requires is not "presentment" of a "claim for
reimbursement" -- those words appear nowhere in § 205(g). Rather,
what the statute requires is a "decision of the Secretary." As for
the language in
Eldridge on which the majority relies, it
is most sensibly read not as indicating that the statute says
something that it manifestly does not, but rather that the usual
(but not necessarily the only) means for obtaining a "decision of
the Secretary" is the filing of an application for benefits.
[
Footnote 2/28]
While
Salfi contains language suggesting that only the
Secretary can decide whether the finality and hearing elements of §
205(g) should be waived, subsequent cases have made clear that,
when no purpose would be served by requiring further exhaustion,
deference to the Secretary's judgment as to waiver would be
inappropriate, and the waivable elements may be satisfied over the
Secretary's objection because of futility.
See Mathews v.
Diaz, 426 U. S. 67,
426 U. S. 76-77
(1976);
Eldridge, 424 U.S. at
424 U. S. 330.
See also ante at
466 U.S.
617-619;
Heckler v. Lopez, 464 U.S. at 883
(STEVENS, J., dissenting in part) (on motion to vacate stay).
[
Footnote 2/29]
See also Califano v. Goldfarb, 430 U.
S. 199,
430 U. S. 203,
n. 3 (1977);
Mathews v. Diaz, 426 U.S. at
426 U. S. 76-77;
Weinberger v. Wiesenfeld, 420 U.
S. 636,
420 U. S. 641,
n. 8 (1975).
[
Footnote 2/30]
See, e.g., Kehner v. Schweiker, 717 F.2d 813, 817-818
(CA3 1983);
Jones v. Califano, 576 F.2d 12, 18-19 (CA2
1978);
Liberty Alliance of the Blind v. Califano, 568 F.2d
333, 346 (CA3 1977);
De Lao v. Califano, 560 F.2d 1384,
1388 (CA9 1977);
Fitzgerald v. Schweiker, 538 F.
Supp. 992, 997-999 (Md.1982);
Kennedy v. Harris, 87
F.R.D. 372 (SD Cal.1980).
[
Footnote 2/31]
One of the original plaintiffs in the District Court, Ernie M.
Haley, was, like Ringer, unable to afford the operation, and died
while awaiting BCBR. Brief for Respondents 9. Thus, the risk Ringer
faces because of his inability to obtain judicial review at this
juncture is far from speculative.
[
Footnote 2/32]
Cf. Eldridge, 424 U.S. at
424 U. S. 331,
n. 11 ("the core principle that statutorily created finality
requirements should, if possible, be construed so as not to cause
crucial collateral claims to be lost and potentially irreparable
injuries to be suffered remains applicable [to § 205(g)]").
[
Footnote 2/33]
The majority argues that the logic of my position applies to any
person who wishes to obtain an advisory opinion from the Secretary.
Ante at
466 U. S.
624-626. It does not. If a surgeon thinks that a given
procedure is medically necessary and reasonable, he should be
confident of his ability to convince an administrative law judge of
exactly that, and therefore will provide the operation with the
expectation of receiving reimbursement after the fact through the
administrative process. Indeed that is the way that
most
surgery is in fact provided under Medicare; the surgeon does not
require prepayment precisely because he is confident he will be
reimbursed. That is certainly true here -- Ringer's surgeon would
provide the surgery if he were given an opportunity to obtain a
hearing after the fact. My position only applies to persons who are
unable to obtain a hearing because the Secretary has
preempted the administrative process. That is the effect of her
BCBR rule, and why it is meaningless to speak of Ringer's
"pursuing" his administrative remedies.
[
Footnote 2/34]
The majority's fear of a flood of Medicare actions seeking
advisory opinions is put into perspective by the fact that not a
single lawsuit was filed seeking an advisory determination as to
the reimbursability of BCBR until the Secretary issued the
challenged regulation. The reason is simple enough -- at that
point, persons like Ringer had access to an administrative remedy.
Jurisdiction over Ringer's claim would not increase the volume of
Social Security Act litigation; rather, it would simply enable
persons aggrieved by the Secretary's legislative rulings to obtain
the judicial review that they otherwise would have been able to
obtain following an adjudicative proceeding. Moreover, it appears
that actions like Ringer's would be relative rarities. The
Secretary's decision to preempt the administrative process with
respect to BCBR appears to be highly unusual.
[
Footnote 2/35]
See, e.g., Southern R. Co. v. Seaboard Allied Milling
Corp., 442 U. S. 444,
442 U. S. 454,
462 (1979);
Morris v. Gressette, 432 U.
S. 491,
432 U. S.
500-501 (1977);
Dunlop v. Bachowski,
421 U. S. 560,
421 U. S.
567-568 (1975);
Johnson v. Robison,
415 U. S. 361,
415 U. S.
373-374 (1974);
Citizens To Preserve Overton Park,
Inc. v. Volpe, 401 U. S. 402,
401 U. S. 410
(1971);
Tooahnippah v. Hickel, 397 U.
S. 598,
397 U. S.
605-606 (1970);
Barlow v. Collins, 397 U.
S. 159,
397 U. S.
166-167 (1970);
Association of Data Processing
Service Organizations, Inc. v. Camp, 397 U.
S. 150,
397 U. S.
156-157 (1970);
Brownell v. Tom We Shung,
352 U. S. 180,
352 U. S. 185
(1956);
Heikkila v. Barber, 345 U.
S. 229,
345 U. S. 232
(1953).