Respondents, who include an association of family physicians and
several individual doctors, filed suit in Federal District Court to
challenge the validity of a regulation that was promulgated under
Part B of the Medicare program and that authorizes the payment of
benefits in different amounts for similar physicians' services.
Holding that the regulation contravened several statutory
provisions governing the Medicare program, the court rejected the
Secretary of Health and Human Services' contention (the question
presented in this Court) that Congress has forbidden judicial
review of all questions affecting the amount of benefits payable
under Part B of the Medicare program. The Court of Appeals
agreed.
Held: In neither 42 U.S.C. § 1395ff (1982 ed. and Supp.
II) nor § 1395ii (1982 ed., Supp. II), has Congress barred judicial
review of regulations promulgated under Part B of the Medicare
program. Pp.
476 U. S.
670-682.
(a) There is a strong presumption that Congress intends judicial
review of administrative action. Only upon a showing of clear and
convincing evidence of a contrary legislative intent should the
courts restrict access to judicial review. Pp.
476 U. S.
670-673.
(b) The provisions of § 1395ff(b) that authorize administrative
and judicial review of determinations as to the amount of benefits
under Part A of the Medicare program do not impliedly foreclose
judicial review of Part B regulations. The reticulated statutory
scheme, which details the forum and limits of review of
determinations of the amounts of benefits payable under Parts A and
B, simply does not speak to challenges as to the
method by
which such amounts are to be determined, rather than the
determinations themselves. That Congress did not preclude
review of the method by which Part B awards are computed (as
opposed to the computation) is supported by the legislative
history.
United States v. Erika, Inc., 456 U.
S. 201, explained. Pp.
476 U. S.
674-678.
(c) Nor does § 1395ii, which states that 42 U.S.C. § 405(h)
(1982 ed., Supp. II), along with other provisions of the Social
Security Act, shall be applicable to the Medicare program, preclude
judicial review here. Regardless of the abstract meaning of §
405(h), which prohibits certain actions
Page 476 U. S. 668
against the Government or its officers, that section does not
apply on its own terms to Part B, but is instead incorporated
mutatis mutandis by § 1395ii. The legislative history of
the Medicare program provides specific evidence of Congress' intent
to foreclose review only of "amount determinations," not of
substantial statutory and constitutional challenges to the
Secretary's administration of Part B. Pp.
476 U. S.
678-681.
757 F.2d 91, affirmed.
STEVENS, J., delivered the opinion of the Court, in which all
other Members joined except REHNQUIST, J., who took no part in the
consideration or decision of the case.
JUSTICE STEVENS delivered the opinion of the Court.
The question presented in this case is whether Congress, in
either § 1395ff or § 1395ii of Title 42 of the United States Code,
barred judicial review of regulations promulgated under Part B of
the Medicare program.
Respondents, who include an association of family physicians and
several individual doctors, filed suit to challenge the validity of
42 CFR § 405.504(b) (1985), which authorizes the payment of
benefits in different amounts for similar physicians' services. The
District Court held that the regulation contravened several
provisions of the statute governing the Medicare program:
"There is no basis to justify the segregation of allopathic
family physicians from all other types of physicians. Such
segregation is not rationally related to any legitimate purpose of
the Medicare statute. To lump MDs who are family physicians, but
who have chosen not
Page 476 U. S. 669
to become board certified family physicians for whatever motive,
with chiropractors, dentists, and podiatrists for the purpose of
determining Medicare reimbursement defies all reason."
Michigan Academy of Family Physicians v. Blue Cross and Blue
Shield of Michigan, 502 F.
Supp. 751, 755 (ED Mich.1980). Because it ruled in favor of
respondents on statutory grounds, the District Court did not reach
their constitutional claims.
See id. at 756. The Court of
Appeals agreed with the District Court that the Secretary's
regulation was "obvious[ly] inconsisten[t] with the plain language
of the Medicare statute," and held that "this regulation is
irrational and is invalid."
Michigan Academy of Family
Physicians v. Blue Cross and Blue Shield of Michigan, 728 F.2d
326, 332 (CA6 1984). Like the District Court, it too declined to
reach respondents' constitutional claims.
See id. at 332,
n. 5.
The Secretary of Health and Human Services has not sought review
of the decision on the merits invalidating the regulation. Instead,
he renews the contention, rejected by both the District Court and
the Court of Appeals, that Congress has forbidden judicial review
of all questions affecting the amount of benefits payable under
Part B of the Medicare program. Because the question is important
and has divided the Courts of Appeals, [
Footnote 1] we granted the petition for a writ of
certiorari. [
Footnote 2] We now
affirm.
Page 476 U. S. 670
I
We begin with the strong presumption that Congress intends
judicial review of administrative action. From the beginning,
"our cases [have established] 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."
Abbott Laboratories v. Gardner, 387 U.
S. 136,
387 U. S. 140
(1967) (citing cases).
See generally L. Jaffe, Judicial
Control of Administrative Action 339-353 (1965). In
Marbury v.
Madison, 1 Cranch 137,
5 U. S. 163
(1803), a case itself involving review of executive action, Chief
Justice Marshall insisted that "[t]he very essence of civil liberty
certainly consists in the right of every individual to claim the
protection of the laws." Later, in the lesser known but nonetheless
important case of
United States v.
Nourse, 9 Pet. 8,
34 U. S. 28-29
(1835), the Chief Justice noted the traditional observance of this
right and laid the foundation for the modern presumption of
judicial review:
"It would excite some surprise if, in a government of laws and
of principle, furnished with a department whose appropriate duty it
is to decide questions of right, not only between individuals, but
between the government and individuals; a ministerial officer
might, at his discretion, issue this powerful process . . . leaving
to the debtor no remedy, no appeal to the laws of his country, if
he should believe the claim to be unjust. But this anomaly does not
exist; this imputation cannot be cast on the legislature of the
United States."
Committees of both Houses of Congress have endorsed this view.
In undertaking the comprehensive rethinking of the place of
administrative agencies in a regime of separate and
Page 476 U. S. 671
divided powers that culminated in the passage of the
Administrative Procedure Act (APA), 5 U.S.C. §§ 551-559, 701-706,
the Senate Committee on the Judiciary remarked:
"Very rarely do statutes withhold judicial review. It has never
been the policy of Congress to prevent the administration of its
own statutes from being judicially confined to the scope of
authority granted or to the objectives specified. Its policy could
not be otherwise, for in such a case, statutes would in effect be
blank checks drawn to the credit of some administrative officer or
board."
S.Rep. No. 752, 79th Cong., 1st Sess., 26 (1945).
Accord, H.R.Rep. No.1980, 79th Cong., 2d Sess., 41 (1946).
The Committee on the Judiciary of the House of Representatives
agreed that Congress ordinarily intends that there be judicial
review, and emphasized the clarity with which a contrary intent
must be expressed:
"The statutes of Congress are not merely advisory when they
relate to administrative agencies, any more than in other cases. To
preclude judicial review under this bill, a statute, if not
specific in withholding such review, must upon its face give clear
and convincing evidence of an intent to withhold it. The mere
failure to provide specially by statute for judicial review is
certainly no evidence of intent to withhold review."
Ibid. Taking up the language in the House Committee
Report, Justice Harlan reaffirmed the Court's holding in
Rusk
v. Cort, 369 U. S. 367,
369 U. S.
379-380 (1962), that
"only upon a showing of 'clear and convincing evidence' of a
contrary legislative intent should the courts restrict access to
judicial review."
Abbott Laboratories v. Gardner, 387 U.S. at
387 U. S. 141
(citations omitted). This standard has been invoked time and again
when
Page 476 U. S. 672
considering whether the Secretary has discharged "the heavy
burden of overcoming the strong presumption that Congress did not
mean to prohibit all judicial review of his decision,"
Dunlop
v. Bachowski, 421 U. S. 560,
421 U. S. 567
(1975). [
Footnote 3]
Subject to constitutional constraints, Congress can, of course,
make exceptions to the historic practice whereby
Page 476 U. S. 673
courts review agency action. The presumption of judicial review
is, after all, a presumption, and "like all presumptions used in
interpreting statutes, may be overcome by,"
inter alia,
"specific language or specific legislative history that is a
reliable indicator of congressional intent," or a specific
congressional intent to preclude judicial review that is
"
fairly discernible' in the detail of the legislative scheme."
Block v. Community Nutrition Institute, 467 U.
S. 340, 467 U. S. 349,
467 U. S. 351
(1984). [Footnote 4]
In this case, the Government asserts that two statutory
provisions remove the Secretary's regulation from review under the
grant of general federal question jurisdiction found in 28 U.S.C. §
1331. First, the Government contends that 42 U.S.C. § 1395ff(b)
(1982 ed., Supp. II), which authorizes "Appeal by individuals,"
impliedly forecloses administrative or judicial review of any
action taken under Part B of the Medicare program by failing to
authorize such review while simultaneously authorizing
administrative and judicial review of "any determination . . . as
to . . . the amount of benefits under part A," § 1395ff(b)(1)(C).
Second, the Government asserts that 42 U.S.C. § 1395ii (1982 ed.,
Supp. II), which makes applicable 42 U.S.C. § 405(h) (1982 ed.,
Supp. II), of the Social Security Act to the Medicare program,
expressly precludes all administrative or judicial review not
otherwise provided in that statute. We find neither argument
persuasive.
Page 476 U. S. 674
II
Section 1395ff on its face is an explicit authorization of
judicial review, not a bar. [
Footnote 5] As a general matter,
"'[t]he mere fact that some acts are made reviewable should not
suffice to support an implication of exclusion as to others. The
right to review is too important to be excluded on such slender and
indeterminate evidence of legislative intent.'"
Abbott Laboratories v. Gardner, 387 U.S. at 141
(quoting L. Jaffe, Judicial Control of Administrative Action 357
(1965)).
See Barlow v. Collins, 397 U.
S. 159,
397 U. S. 166
(1970);
Stark v. Wickard, 321 U.
S. 288,
321 U. S. 309
(1944).
In the Medicare program, however, the situation is somewhat more
complex. Under Part B of that program, which is at issue here, the
Secretary contracts with private health insurance carriers to
provide benefits for which individuals voluntarily remit premiums.
This optional coverage, which is federally subsidized, supplements
the mandatory institutional
Page 476 U. S. 675
health benefits (such as coverage for hospital expenses)
provided by Part A. Subject to an amount-in-controversy
requirement, individuals aggrieved by delayed or insufficient
payment with respect to benefits payable under Part B are afforded
an "opportunity for a fair hearing by the
carrier," 42
U.S.C. § 1395u(b)(3)(C) (emphasis added); in comparison, and
subject to a like amount-in-controversy requirement, a similarly
aggrieved individual under Part A is entitled "to a hearing thereon
by the
Secretary . . . and to judicial review," 42 U.S.C.
§§ 1395ff(b)(1)(C), (b)(2) (1982 ed. and Supp. II). "In the context
of the statute's precisely drawn provisions," we held in
United
States v. Erika, Inc., 456 U. S. 201,
456 U. S. 208
(1982), that the failure
"to authorize further review for determinations of the amount of
Part B awards . . . provides persuasive evidence that Congress
deliberately intended to foreclose further review of such
claims."
Not limiting our consideration to the statutory text, we
investigated the legislative history which "confirm[ed] this view,"
ibid., and disclosed a purpose to "
avoid overloading
the courts'" with "`trivial matters,'" a consequence which would
"`unduly ta[x]'" the federal court system with "`little real
value'" to be derived by participants in the program, id.
at 456 U. S. 210,
n. 13 (quoting 118 Cong.Rec. 33992 (1972) (remarks of Sen.
Bennett)).
Respondents' federal court challenge to the validity of the
Secretary's regulation is not foreclosed by § 1395ff as we
construed that provision in
Erika. The reticulated
statutory scheme, which carefully details the forum and limits of
review of "any determination . . . of . . . the amount of benefits
under part A," 42 U.S.C. § 1395ff(b)(1)(C) (1982 ed., Supp. II),
and of the "amount of . . . payment" of benefits under Part B, 42
U.S.C. § 1395u(b)(3)(C), simply does not speak to challenges
mounted against the
method by which such amounts are to be
determined, rather than the
determinations themselves. As
the Secretary has made clear, "the legality, constitutional or
otherwise, of any provision of
Page 476 U. S. 676
the Act or regulations relevant to the Medicare Program" is not
considered in a "fair hearing" held by a carrier to resolve a
grievance related to a determination of the amount of a Part B
award. [
Footnote 6] As a
result, an attack on the validity of a regulation is not the kind
of administrative action that we described in
Erika as an
"amount determination" which decides "the amount of the Medicare
payment to be made on a particular claim" and with respect to which
the Act impliedly denies judicial review. 456 U.S. at
456 U. S.
208.
That Congress did not preclude review of the method by which
Part B awards are computed (as opposed to the computation) is borne
out by the very legislative history we found persuasive in
Erika. The Senate Committee Report on the original 1965
legislation reveals an intention to preclude "judicial review of a
determination concerning the
amount of benefits under part
B where claims will probably
Page 476 U. S. 677
be for substantially smaller amounts than under part A." S.Rep.
No. 404, 89th Cong., 1st Sess., 54-55 (1965) (emphasis added). The
Report makes plain that "carriers, not the Secretary, would review
beneficiary complaints regarding the
amount of benefits."
Ibid. (emphasis added).
Accord, H.R.Rep. No. 213,
89th Cong., 1st Sess., 47 (1965) ("Under the supplementary plan
[Part B], carriers, not the Secretary, would review beneficiary
complaints regarding the
amount of benefits" (emphasis
added)). The legislative history of the pertinent 1972 amendment
likewise reveals that judicial review was precluded only as to
controversies regarding determinations of amounts of benefits. The
Conference Report on the 1972 amendment explains that
"there is no authorization for an appeal to the Secretary or for
judicial review on matters
solely involving amounts of benefits
under Part B."
H.R.Conf.Rep. No. 92-1605, p. 61 (1972) (emphasis added).
Senator Bennett's introductory explanation to the amendment
confirms that preclusion of judicial review of Part B awards --
designed "to avoid overloading the courts with quite minor matters"
-- embraced only "decisions on a claim for payment for a given
service." 118 Cong.Rec. 33992 (1972). The Senator feared that,
"[i]f judicial review is made available where any claim is
denied, as some court decisions have held, the resources of the
Federal court system would be unduly taxed and little real value
would be derived by the enrollees. The proposed amendment would
merely clarify the original intent of the law and prevent the
overloading of the courts with trivial matters because the intent
is considered unclear."
Ibid. As we found in
Erika, 456 U.S. at
456 U. S. 206,
Congress has precluded judicial review only "of adverse hearing
officer determinations of the amount of Part B payments." [
Footnote 7]
Page 476 U. S. 678
Careful analysis of the governing statutory provisions and their
legislative history thus reveals that Congress intended to bar
judicial review only of determinations of the amount of benefits to
be awarded under Part B. Congress delegated this task to carriers
who would finally determine such matters in conformity with the
regulations and instructions of the Secretary. We conclude,
therefore, that those matters which Congress did
not leave
to be determined in a "fair hearing" conducted by the carrier --
including challenges to the validity of the Secretary's
instructions and regulations -- are not impliedly insulated from
judicial review by 42 U.S.C. § 1395ff (1982 ed. and Supp. II).
III
In light of Congress' express provision for carrier review of
millions of what it characterized as "trivial" claims, it is
implausible to think it intended that there be
no forum to
adjudicate statutory and constitutional challenges to regulations
promulgated by the Secretary. The Government nevertheless maintains
that this is precisely what Congress intended to accomplish in 42
U.S.C. § 1395ii (1982 ed., Supp. II). That section states that 42
U.S.C. § 405(h) (1982 ed., Supp. II), along with a string citation
of 10 other provisions of Title II of the Social Security Act,
"shall also apply with respect to this subchapter to the same
extent as they are applicable with respect to subchapter II of this
chapter." Section 405(h), in turn, reads in full as follows:
"(h) Finality of Secretary's decision "
Page 476 U. S. 679
"The findings and decision 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
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."
The Government contends that the third sentence of § 406(h) by
its terms prevents any resort to the grant of general federal
question jurisdiction contained in 28 U.S.C. § 1331. [
Footnote 8] It finds support for this
construction in
Weinberger v. Salfi, 422 U.
S. 749,
422 U. S.
756-762 (1975), and
Heckler v. Ringer,
466 U. S. 602,
466 U. S.
614-616,
466 U. S.
620-626 (1984). Respondents counter that the
dispositions in these two cases are consistent with the view that
Congress' purpose was to make clear that whatever specific
procedures it provided for judicial review of final action by the
Secretary were exclusive, and could not be circumvented by resort
to the general jurisdiction of the federal courts. [
Footnote 9]
Cf. Weinberger v. Salfi,
422 U.S. at
422 U. S.
764-765;
Heckler v. Ringer, 466 U.S. at
466 U. S.
621-622.
Page 476 U. S. 680
Whichever may be the better reading of
Salfi and
Ringer, we need not pass on the meaning of § 405(h) in the
abstract to resolve this case. Section 405(h) does not apply on its
own terms to Part B of the Medicare program, but is instead
incorporated
mutatis mutandis by § 1395ii. The legislative
history of both the statute establishing the Medicare program and
the 1972 amendments thereto provides specific evidence of Congress'
intent to foreclose review only of "amount determinations" --
i.e., those "quite minor matters," 118 Cong.Rec. 33992
(1972) (remarks of Sen. Bennett), remitted finally and exclusively
to adjudication by private insurance carriers in a "fair hearing."
[
Footnote 10] By the same
token, matters which Congress did
not delegate to private
carriers, such as challenges to the validity of the Secretary's
instructions and regulations, are cognizable in courts of law. In
the face of this persuasive evidence of legislative intent, we will
not indulge the Government's assumption that Congress contemplated
review by carriers of "trivial" monetary claims,
ibid.,
but intended no review at all of substantial statutory and
constitutional challenges to the Secretary's administration of Part
B of the Medicare program. [
Footnote 11] This is an extreme position, and one
Page 476 U. S. 681
we would be most reluctant to adopt without "a showing of
clear and convincing evidence,'" Abbott Laboratories v.
Gardner, 387 U.S. at 387 U. S. 141,
to overcome the "strong presumption that Congress did not mean to
prohibit all judicial review" of executive action, Dunlop v.
Bachowski, 421 U.S. at 421 U. S. 567.
We ordinarily presume that Congress intends the executive to obey
its statutory commands and, accordingly, that it expects the courts
to grant relief when an executive agency violates such a command.
That presumption has not been surmounted here. [Footnote 12]
Page 476 U. S. 682
The judgment of the Court of Appeals is
Affirmed.
JUSTICE REHNQUIST took no part in the consideration or decision
of this case.
[
Footnote 1]
The Court of Appeals for the Fourth Circuit, in conflict with
the Court of Appeals for the Sixth Circuit, has held that
regulations promulgated under Part B of the Medicare program are
insulated from judicial review.
See Starnes v. Schweiker,
748 F.2d 217, 218 (1984) (per curiam),
cert. denied, 471
U.S. 1017 (1985).
[
Footnote 2]
In fact, we did so twice. We first granted the petition for a
writ of certiorari to allow the Court of Appeals to consider its
jurisdictional ruling in the light of
Heckler v. Ringer,
466 U. S. 602
(1984). 467 U.S. 1223 (1984). On remand, the Court of Appeals
ultimately decided to reinstate its original judgment,
see
Michigan Academy of Family Physicians v. Blue Cross and Blue Shield
of Michigan, 757 F.2d 91 (1985);
Michigan Academy of
Family Physicians v. Blue Cross and Blue Shield of Michigan,
751 F.2d 809 (1984), whereupon we issued the writ on which the
judgment is now before us. 474 U.S. 815 (1985).
[
Footnote 3]
See, e.g., Lindahl v. Office of Personnel Management,
470 U. S. 768,
470 U. S. 778
(1985);
Dunlop v. Bachowski, 421 U.S. at
421 U. S. 567;
Citizens to Preserve Overton Park v. Volpe, 401 U.
S. 402,
401 U. S. 410
(1971);
Barlow v. Collins, 397 U.
S. 159,
397 U. S.
166-167 (1970) ("Indeed, judicial review of such
administrative action is the rule, and nonreviewability an
exception which must be demonstrated").
See also Wons Wing Hang
v. INS, 360 F.2d 715, 718 (CA2 1966) (Friendly, J.) ("[O]nly
in the rare -- some say nonexistent -- case . . . may review for
abuse' be precluded"). Of course, this Court has "never applied
the `clear and convincing evidence' standard in the strict
evidentiary sense"; nevertheless, the standard serves as
"a useful reminder to courts that, where substantial doubt about
the congressional intent exists, the general presumption favoring
judicial review of administrative action is controlling."
Block v. Community Nutrition Institute, 467 U.
S. 340,
467 U. S.
350-351 (1984).
A strong presumption finds support in a wealth of scholarly
literature.
See, e.g., 2 K. Davis, Administrative Law §
9:6, p. 240 (1979) (praising "the case law since 1974" for being
"strongly on the side of reviewability"); L. Jaffe, Judicial
Control of Administrative Action 327 (1965) ("An agency is not an
island entire of itself. It is one of the many rooms in the
magnificent mansion of the law. The very subordination of the
agency to judicial jurisdiction is intended to proclaim the premise
that each agency is to be brought into harmony with the totality of
the law, the law as it is found in the statute at hand, the statute
book at large, the principles and conceptions of the
common
law,' and the ultimate guarantees associated with the
Constitution"); B. Schwartz, Administrative Law § 8.1, p. 436 (2d
ed.1984) ("The responsibility of enforcing the limits of statutory
grants of authority is a judicial function; . . . [w]ithout
judicial review, statutory limits would be naught but empty
words"); Jaffe, The Right to Judicial Review I, 71 Harv.L.Rev. 401,
432 (1958) ("[J]udicial review is the rule. . . . It is a basic
right; it is a traditional power and the intention to exclude it
must be made specifically manifest"); Shapiro, Administrative
Discretion: The Next Stage, 92 Yale L.J. 1487, 1489, n. 11 (1983)
(since passage of the APA, the sustained effort of administrative
law has been to "continuously narro[w] the category of actions
considered to be so discretionary as to be exempted from
review").
[
Footnote 4]
"The congressional intent necessary to overcome the presumption
may also be inferred from contemporaneous judicial construction
barring review and the congressional acquiescence in it,
see,
e.g., Ludecke v. Watkins, 335 U. S. 160 (1948), or from
the collective import of legislative and judicial history behind a
particular statute,
see, e.g., Heikkila v. Barber,
345 U. S.
229 (1953). More important for purposes of this case,
the presumption favoring judicial review of administrative action
may be overcome by inferences of intent drawn from the statutory
scheme as a whole.
See, e.g., Morris v. Gressette,
432 U. S.
491 (1977);
Switchmen v. National Mediation
Board, 320 U. S. 297 (1943)."
Block v. Community Nutrition Institute, 467 U.S. at
467 U. S.
349.
[
Footnote 5]
The pertinent text of § 1395ff reads as follows:
"(a) 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."
"(b) Appeal by individuals"
" (1) Any individual dissatisfied with any determination under
subsection (a) of this section as to -- "
" (A) whether he meets the conditions of section 426 or section
426a of this title [which set forth eligibility requirements to be
satisfied before an individual is permitted to participate in Part
A of the Medicare program], or"
" (B) whether he is eligible to enroll and has enrolled pursuant
to the provisions of part B of [the Medicare program] . . .
or,"
" (C) the amount of the 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."
[
Footnote 6]
Medicare Carrier's Manual § 12016 (1985). In a "fair hearing"
conducted pursuant to § 1395u(b)(3)(C),
see 42 CFR §
405.820 (1985), the carrier designates a hearing officer, §
405.823, whose jurisdiction is circumscribed by regulation as
follows:
"The hearing officer in exercising the authority to conduct a
hearing under section 1842(b)(3)(C) of the Act is to comply with
all the provisions of title XVIII of the Act and regulations issued
thereunder, as well as with policy statements, instructions, and
other guides issued by the Health Care Financing Administration in
accordance with the Secretary's agreement with the carriers."
§ 405.860. One of those guides is a compilation of instructions
prepared by the Secretary and entitled the "Carrier's Manual."
Section 12016 of the Manual, part of which is quoted in text,
provides as follows:
"Authority -- the HO [Hearing Officer] occupies a significant
position in the administration appeals process. Authority of the HO
is limited to the extent that he must comply with all provisions of
title XVIII of the Act and regulations issued thereunder, as well
as with HCFA. The HO may not overrule the provisions of the law or
interpret them in a way different than HCFA does when he disagrees
with their intent; nor may he use hearing decisions as a vehicle
for commenting upon the legality, constitutional or otherwise, of
any provision of the Act or regulations relevant to the Medicare
Program."
[
Footnote 7]
The fourth footnote of our opinion in
Heckler v.
Ringer, 466 U.S. at
466 U. S.
608-609, n. 4, on which the Government relies for the
proposition that Part B challenges are never cognizable in a
judicial forum, merely declined to review "claims for Part B
benefits."
Id. at
466 U. S. 609, n. 4. The single sentence in which we
disposed of respondents' claim rested entirely on
Erika
and its companion case of
Schweiker v. McClure,
456 U. S. 188
(1982). (
Schweiker upheld the constitutionality of "fair
hearing" proceedings conducted by private insurance carriers
against a Due Process Clause attack.) We did not, in that single
sentence, extend the preclusion of judicial review beyond the Part
B "amount determinations" with which both
Erika and that
part of the
Ringer opinion were concerned.
[
Footnote 8]
The Government also argues that the challenged regulation is a
"decision of the Secretary" which the second sentence of § 405(h)
excepts from "revie[w] by any . . . tribunal." The Government's
assumption that the regulation is such a decision, however, ignores
the contextual definition of "decision" in the first sentence as
those determinations made by "the Secretary after a hearing." The
purpose of "the first two sentences of § 406(h)," as we made clear
in
Weinberger v. Salfi, 422 U. S. 749,
422 U. S. 757
(1975), is to "assure that administrative exhaustion will be
required." Respondents' attack on the regulation here is not
subject to such a requirement because there is no hearing, and thus
no administrative remedy, to exhaust.
[
Footnote 9]
See Ellis v. Blum, 643 F.2d 68, 74 (CA2 1981)
(Friendly, J.).
Cf. S.Rep. No. 734, 76th Cong., 1st Sess.,
52 (1939); H.R.Rep. No. 728, 76th Cong., 1st Sess., 43-44
(1939).
[
Footnote 10]
In this connection, it bears mention that the legislative
history summarized in the preceding section speaks to provisions
for appeal generically, and is thus as probative of congressional
intent in enacting §1395ii as it is of § 1395ff.
See
S.Rep. No. 404, 89th Cong., 1st Sess., 54 (1965)
("
Appeals"); H.R.Rep. No. 213, 89th Cong., 1st Sess., 47
(1965) ("
Appeals"); H.R.Conf.Rep. No. 92-1605, p. 61
(1972) ("CLARIFICATION OF MEDICARE APPEAL PROCEDURES"); 118
Cong.Rec. 33991 (1972) ("DETERMINATIONS AND APPEALS") (caption to
amendment proposed by Sen. Bennett).
[
Footnote 11]
We do not believe that our decision will open the floodgates to
millions of Part B Medicare claims. Unlike the determinations of
amounts of benefits, the method by which such amounts are
determined ordinarily affects vast sums of money, and thus differs
qualitatively from the "quite minor matters" review of which
Congress confined to hearings by carriers. In addition, as one
commentator pointed out,
"permitting review only [of] . . . a particular statutory or
administrative standard . . . would not result in a costly flood of
litigation, because the validity of a standard can be readily
established, at times even in a single case."
Note, 97 Harv.L.Rev. 778, 792 (1984) (footnote omitted). We
observed no flood of litigation in the first 20 years of operation
of Part B of the Medicare program, and we seriously doubt that we
will be inundated in the future.
[
Footnote 12]
Our disposition avoids the "serious constitutional question"
that would arise if we construed § 1395ii to deny a judicial forum
for constitutional claims arising under Part B of the Medicare
program.
Weinberger v. Salfi, 422 U.S. at
422 U. S. 762
(citing
Johnson v. Robison, 415 U.
S. 361,
415 U. S.
366-367 (1974)).
See Yakus v. United States,
321 U. S. 414,
321 U. S.
433-444 (1944);
St. Joseph Stock Yards Co. v. United
States, 298 U. S. 38,
298 U. S. 84
(1936) (Brandeis, J., concurring); Gunther, Congressional Power to
Curtail Federal Court Jurisdiction: An Opinionated Guide to the
Ongoing Debate, 36 Stan.L.Rev. 895, 921, n. 113 (1984) ("[A]ll
agree that Congress cannot bar all remedies for enforcing federal
constitutional rights").
Cf. Hart, The Power of Congress
to Limit the Jurisdiction of Federal Courts: An Exercise in
Dialectic, 66 Harv.L.Rev. 1362, 1378-1379 (1953). It also accords
with our decision in
Schweiker v. McClure, 456 U.
S. 188 (1982), in which we resolved a constitutional
challenge arising under Part B of the Medicare program. Although
the Government notes, quite accurately, that our opinion in
McClure makes no mention of the jurisdictional question,
we can hardly be charged with overlooking that point.
McClure was argued and announced the same day as
Erika, a case which did concern the judicial competence to
review a challenge arising under Part B; it was written by the same
Member of this Court who authored
Erika, immediately
precedes
Erika in the United States Reports, and contains
a number of cross-references to that opinion. Finally, we cannot,
as the Government would have us, dismiss respondents'
constitutional attack as insubstantial -- that is to say,
"essentially fictitious," "obviously frivolous," and "obviously
without merit" -- under
Hagans v. Lavine, 415 U.
S. 528,
415 U. S. 537
(1974) (internal quotations omitted), as would be necessary to
decline jurisdiction over the case. Both courts below found the
classification embodied in the regulation to be "irrational,"
see supra at
476 U. S.
668-669, and although this finding was made with respect
to respondents' statutory claims, it surely casts sufficient doubt
on the constitutionality of the classification under the Due
Process and Equal Protection Clauses to merit resolution of the
constitutional challenge.