CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1999
Syllabus
SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.
v. ILLINOIS COUNCIL ON LONG TERM CARE, INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT
No. 98-1109. Argued November 8, 1999-Decided February 29,
2000
Under the Medicare Act's special review provisions, a nursing
home that is "dissatisfied ... with
a determination described in
subsection (b)(2)" is "entitled to a hearing ... to the same
extent as is provided in" the Social Security Act, 42 U. S. C. §
405(b), "and to judicial review of the Secretary's final decision
after such hearing as is provided in section 405(g) .... " 42 U. S.
C. § 1395cc(h)(1) (emphasis added). The crossreferenced subsection
(b)(2) gives petitioner Secretary of Health and Human Services
(HHS) power to terminate a provider agreement with a home where,
for example, she determines that a home has failed to comply
substantially with the statute and the regulations. The
crossreferenced § 405(b) describes the administrative hearing to
which a "dissatisfied" home is entitled, and the cross-referenced §
405(g) provides that the home may obtain federal district court
review of the Secretary's "final decision ... made after a hearing
.... " Section 405(h), a provision of the Social Security Act
incorporated into the Medicare Act by 42 U. S. C. § 1395ii,
provides that "[n]o action ... to recover on any claim arising
under" the Medicare laws shall be "brought under [28 U. S. C. §
]1331." It channels most, if not all, Medicare claims through this
special review system. Respondent, the Illinois Council on Long
Term Care, Inc. (Council), an association of nursing homes,
2
Syllabus
did not rely on these provisions when it filed suit against,
inter alios, petitioners (hereinafter Secretary),
challenging the validity of Medicare regulations that impose
sanctions or remedies on nursing homes that violate certain
substantive standards. Rather, it invoked federalquestion
jurisdiction, 28 U. S. C. § 1331. In dismissing for lack of
jurisdiction, the Federal District Court found that 42 U. S. C. §
405(h), as interpreted in
Weinberger v.
Salfi,
422 U. S. 749,
and
Heckler v.
Ringer, 466 U. S. 602, barred a §
1331 suit. The Seventh Circuit reversed, holding that
Bowen
v.
Michigan Academy of Family Physicians, 476 U. S. 667, had
significantly modified such earlier case law.
Held: Section 405(h), as incorporated by § 1395ii, bars
federal-question jurisdiction here. pp. 10-25.
(a) Section 405(h) purports to make exclusive § 405(g)'s
judicial review method. While its "to recover on any claim arising
under" language plainly bars § 1331 review where an individual
challenges on any legal ground the agency's denial of a monetary
benefit under the Social Security and Medicare Acts, the question
here is whether an anticipatory challenge to the lawfulness of a
policy, regulation, or statute that might later bar recovery or
authorize imposition of a penalty is also an action "to recover on
any claim arising under" those Acts. P.lO.
(b) Were the Court not to take account of
Michigan
Academy, § 405(h), as interpreted in
Salfi and
Ringer, would clearly bar this § 1331 lawsuit. The Court
found in the latter cases that § 405(h) applies where "both the
standing and the substantive basis for the presentation" of a claim
is the Social Security Act,
Salfi, supra, at 760-761, or the
Medicare Act,
Ringer, 466 U. S., at 615. All aspects of a
present or future benefits claim must be channeled through the
administrative process.
Id., at 621-622. As so interpreted,
§405(h)'s bar reaches beyond ordinary administrative law principles
of "ripeness" and "exhaustion of administrative remedies"-doctrines
that normally require channeling a legal challenge through the
agency-by preventing the application of exceptions to those
doctrines. This nearly absolute channeling requirement assures the
agency greater opportunity to apply, interpret, or revise policies,
regulations, or statutes without possibly premature interference by
individual courts applying "ripeness" and "exhaustion" exceptions
case by case. The assurance comes at the price of occasional
individual, delay-related hardship, but paying such a price in the
context of a massive, complex health and safety program such as
Medicare was justified in the judgment of Congress as understood in
Salfi and
Ringer. Salfi and
Ringer cannot be
distinguished from the instant
3
case. They themselves foreclose distinctions based upon the
"potential future" versus "actual present" nature of the claim, the
"general legal" versus the "fact-specific" nature of the challenge,
the "collateral" versus the "noncollateral" nature of the issues,
or the "declaratory" versus "injunctive" nature of the relief
sought. Nor can the Court accept a distinction that limits §
405(h)'s scope to claims for monetary benefits or that involve
"amounts," as neither the language nor the purposes of §405 support
such a distinction. Neither
McNary v.
Haitian Refugee
Center, Inc., 498
U. S. 479, nor
Mathews v.
Eldridge, 424 U. S. 319, supports
the Council's effort to distinguish
Salfi and
Ringer.
The Court's approval of a § 1331 suit against the Immigration and
Naturalization Service in
McNary rested on the different
language of the immigration statute. And
Eldridge was a case
in which the respondent had complied with, not disregarded, the
Social Security Act's special review procedures-specifically the
nonwaivable and nonexcusable requirement that an individual present
a claim to the agency before raising it in court. The upshot is
that the Council's argument must rest primarily upon
Michigan
Academy. Pp. 11-15.
(c)
Michigan Academy did not, contrary to the Court of
Appeals' holding, modify the Court's earlier holdings by limiting §
405(h)'s scope, as incorporated by § 1395ii, to "amount
determinations." That case involved the lawfulness of HHS
regulations governing procedures used to calculate Medicare Part B
benefits; and the Medicare statute, as it then existed, did not
provide for § 405(g) review of such decisions. The Court ruled that
this silence did not itself foreclose § 1331 review. In response to
the argument that § 405(h) barred § 1331 review, the Court declined
to pass in the abstract on the meaning of § 405(h) because that
section was made applicable to the Medicare Act "to the same extent
as" it is applicable to the Social Security Act by virtue of 42 U.
S. C. § 1395ii. The Court interpreted that phrase to foreclose
application of § 405(h) where its application would preclude
judicial review rather than channel it through the agency. As
limited by the Court of Appeals,
Michigan Academy would have
overturned or dramatically limited earlier precedents such as
Salfi and
Ringer, and would have created a hardly
justifiable distinction between "amount determinations" and many
similar HHS determinations. This Court does not normally overturn,
or so dramatically limit, earlier authority
sub silentio,
and it did not do so here. Pp. 15-20.
(d) The Council's argument that it falls within the
Michigan
Academy exception because it can obtain no review at all unless
it can obtain § 1331 review is unconvincing. It argues that review
is available only after the Secretary terminates a home's provider
agreement. But in
4
Syllabus
her brief and regulations, the Secretary offers a legally
permissible interpretation of the statute: that it permits a
dissatisfied nursing home to have an administrative hearing on a
determination that it has failed to comply substantially with the
statute, agreements, or regulations, whether termination or some
other remedy is imposed. See,
e. g., Chevron U. S.
A.
Inc. v.
Natural Resources Defense Council, Inc.,
467 U. S. 837,
843. The Secretary also denies that she engages in any practice
that forces a home to submit a corrective plan and sacrifice appeal
rights in order to avoid termination, or that penalizes more
severely a home that chooses to appeal. Because the Council offers
no convincing reason to doubt her description of the agency's
practice, the Court need not decide whether a practice that forced
homes to abandon legitimate challenges could amount to the
practical equivalent of a total denial of judicial review. If, as
the Council argues, the regulations unlawfully limit the extent to
which the agency will provide the administrative review channel
leading to judicial review, its members remain free, after
following the special review route, to contest in court the
lawfulness of the relevant regulation or statute. That is true even
if the agency does not or cannot resolve the particular contention,
because it is the "action" arising under the Medicare Act that must
be channeled through the agency. The Council finally argues that,
as an association speaking on behalf of its injured members, it has
no standing to take advantage of the special review channel.
However, it is the members' rights to review that are at stake, and
the statutes creating the special review channel adequately protect
those rights. Pp. 20-24.
143 F.3d
1072, reversed.
BREYER, J., delivered the OpInIOn of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SOUTER, and GINSBURG, JJ., joined.
STEVENS, J.,
post, p. 30, and SCALIA, J.,
post, p.
31, filed dissenting opinions. THOMAS, J., filed a dissenting
opinion, in which STEVENS and KENNEDY, JJ., joined, and in which
SCALIA, J., joined except as to Part III,
post, p.32.
Jeffrey A. Lamken argued the cause for petitioners.
With him on the briefs were Solicitor General Waxman, Acting
Assistant Attorney General Ogden, Deputy Solicitor General
Kneedler, Barbara C. Biddle, Jeffrey Clair, Harriet S. Rabb, and
Jeffrey Golland.
5
Kimball R. Anderson argued the cause for respondent.
With him on the brief were Charles P. Sheets, Bruce R. Braun,
and Brian E. Neuffer.
*
JUSTICE BREYER delivered the opinion of the Court.
The question before us is one of jurisdiction. An association of
nursing homes sued,
inter alios, the Secretary of Health and
Human Services (HHS) and another federal party (hereinafter
Secretary) in Federal District Court claiming that certain
Medicare-related regulations violated various statutes and the
Constitution. The association invoked the court's federal-question
jurisdiction, 28 U. S. C. § 1331. The District Court dismissed the
suit on the ground that it lacked jurisdiction. It believed that a
set of special statutory provisions creates a separate, virtually
exclusive, system of administrative and judicial review for denials
of Medicare claims; and it held that one of those provisions
explicitly barred a § 1331 suit. See 42 U. S. C. § 1395ii
(incorporating into the Medicare Act 42 U. S. C. § 405(h), which
provides that "[n]o action ... to recover on any claim" arising
under the Medicare laws shall be "brought under section 1331 ... of
title 28"). The Court of Appeals, however, reversed.
We conclude that the statutory provision at issue, § 405(h), as
incorporated by § 1395ii, bars federal-question jurisdiction here.
The association or its members must proceed instead through the
special review channel that the Medicare statutes create. See 42 U.
S. C. §§ 1395cc(h), (b)(2)(A), 1395ii; §§ 405(b), (g), (h).
*Briefs of
amici curiae urging affirmance were filed for
the American Association of Homes and Services for the Aging by
Mark H. Gallant; for the American Health Care Association et
al. by
Thomas C.
Fox and
Harvey M. Tettlebaum;
for the American Hospital Association by
Charles G.
Curtis, Jr., and
Edward J. Green; and
for the American Medical Association et al. by
Paul M. Smith,
Robert M. Portman, Michael L. Ile, Leonard A. Nelson, Richard N
Peterson, Ann E. Allen, Stuart M. Gerson, Saul J.
Morse, and
Robert J. Kane.
6
I A
We begin by describing the regulations that the association's
lawsuit attacks. Medicare Act Part A provides payment to nursing
homes which provide care to Medicare beneficiaries after a stay in
a hospital. To receive payment, a home must enter into a provider
agreement with the Secretary of HHS, and it must comply with
numerous statutory and regulatory requirements. State and federal
agencies enforce those requirements through inspections. Inspectors
report violations, called "deficiencies." And "deficiencies" lead
to the imposition of sanctions or "remedies." See generally § §
1395i-3, 1395cc.
The regulations at issue focus on the imposition of sanctions or
remedies. They were promulgated in 1994, 59 Fed. Reg. 56116,
pursuant to a 1987 law that tightened the substantive standards
that Medicare (and Medicaid) imposed upon nursing homes and that
significantly broadened the Secretary's authority to impose
remedies upon violators. Omnibus Budget Reconciliation Act of 1987,
§§ 4201-4218, 101 Stat. 1330-160 to 1330-221 (codified as amended
at 42 U. S. C. § 1395i-3 (1994 ed. and Supp. II!)).
The remedial regulations (and a related manual) in effect tell
Medicare-administering agencies how to impose remedies after
inspectors find that a nursing home has violated substantive
standards. They divide a nursing home's deficiencies into three
categories of seriousness depending upon a deficiency's severity,
its prevalence at the home, its relation with other deficiencies,
and the home's compliance history. Within each category they list a
set of remedies that the agency may, or must, impose. Where, for
example, deficiencies "immediately jeopardize the health or safety
of ... residents," the Secretary must terminate the home's provider
agreement or appoint new, temporary management. Where deficiencies
are less serious, the Secretary
7
may impose lesser remedies, such as civil penalties, transfer of
residents, denial of some or all payment, state monitoring, and the
like. Where a nursing home, though deficient in some respects, is
in "[s]ubstantial compliance," i.
e., where its deficiencies
do no more than create a "potential for [causing] minimal harm,"
the Secretary will impose no sanction or remedy at all. See
generally 42 U. S. C. § 1395i-3(h); 42 CFR § 488.301 (1998); §
488.400
et seq.; App. 54, 66 (Manual). The statute and
regulations also create various review procedures. 42 U. S. C. §§
1395cc(b)(2)(A), (h); 42 CFR § 431.151
et seq. (1998); §
488.408(g); 42 CFR pt. 498 (1998).
The association's complaint filed in Federal District Court
attacked the regulations as unlawful in four basic ways. In its
view: (1) certain terms,
e. g., "substantial
compliance" and "minimal harm," are unconstitutionally vague; (2)
the regulations and manual, particularly as implemented, violate
statutory requirements seeking enforcement consistency, 42 U. S. C.
§ 1395i-3(g)(2)(D), and exceed the legislative mandate of the
Medicare Act; (3) the regulations create administrative procedures
inconsistent with the Federal Constitution's Due Process Clause;
and (4) the manual and other agency publications create legislative
rules that were not promulgated consistent with the Administrative
Procedure Act's demands for "notice and comment" and a statement of
"basis and purpose," 5 U. S. C. § 553. See App. 18-19,27-38, 43-49
(Amended Complaint).
B
We next describe the two competing jurisdictional routes through
which the association arguably might seek to mount its legal
attack. The route it has followed, federal-question jurisdiction,
is set forth in 28 U. S. C. § 1331, which simply states that
"district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the
United States." The route that it did not follow, the special
Medicare review route, is set forth in a complex
8
set of statutory provisions, which must be read together. See
Appendix,
infra. The Medicare Act says that a
home"dissatisfied with a determination described in sub
section
(b)(2) ... shall be entitled to a hearing ... to the same
extent as is provided in [the Social Security Act, 42 U. S. C. §
]405(b) ... and to judicial review of the Secretary's final
decision after such hearing as is provided in section 405(g) .... "
42 U. S. C. § 1395cc(h)(1) (emphasis added).
The cross-referenced subsection (b)(2) gives the Secretary power
to terminate an agreement where, for example, the Secretary
"has determined that the provider fails to comply
substantially with the provisions [of the Medicare Act] and
regulations thereunder .... " § 1395cc(b)(2)(A) (emphasis
added).
The cross-referenced § 405(b) describes the nature of the
administrative hearing to which the Medicare Act entitles a home
that is "dissatisfied" with the Secretary's "determination." The
cross-referenced § 405(g) provides that a "dissatisfied" home may
obtain judicial review in federal district court of "any final
decision of the [Secretary] made after a hearing .... " Separate
statutes provide for administrative and judicial review of civil
monetary penalty assessments. § 1395i-3(h)(2)(B)(ii); §§
1320a-7a(c)(2), (e).
A related Social Security Act provision, § 405(h), channels
most, if not all, Medicare claims through this special review
system. It says:
"(h) Finality of [Secretary's] decision.
"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 pro-
9
vided. No action against the United States, the [Secretary], or
any officer or employee thereof shall be brought under section 1331
or 13.1,6 [federal defendant jurisdiction] of title 28 to recover
on any claim arising under this subchapter." (Emphasis added.)
Section 1395ii makes § 405(h) applicable to the Medicare Act "to
the same extent as" it applies to the Social Security Act.
C
The case before us began when the Illinois Council on Long Term
Care, Inc. (Council), an association of about 200 Illinois nursing
homes participating in the Medicare (or Medicaid) program, filed
the complaint we have described,
supra, at 7, in Federal
District Court. (Medicaid is not at issue in this Court.) The
District Court, as we have said, dismissed the complaint for lack
of federal-question jurisdiction. No. 96 C 2953 (ND Ill., Mar. 31,
1997), App. to Pet. for Cert. 13a, 15a. In doing so, the court
relied upon § 405(h) as interpreted by this Court in
Weinberger v.
Salfi, 422 U. S. 749 (1975), and
Heckler v.
Ringer, 466 U. S. 602 (1984).
App. to Pet. for Cert. 15a-19a.
The Court of Appeals reversed the dismissal. 143 F. 3d
1072
(CA7 1998). In its view, a later case,
Bowen v.
Michigan Academy of Family Physicians, 476 U. S. 667 (1986), had
significantly modified this Court's earlier case law. Other
Circuits have understood
Michigan Academy differently. See
Michigan Assn. of Homes and Servs. for the Aging v.
Shalala, 127 F.3d
496, 500-501
(CA6 1997);
American Academy of
Dermatology v.
HHS, 118 F.3d
1495,1499
1501 (CAll 1997);
St. Francis Medical
Center v.
Shalala, 32 F.3d
805, 812-813
(CA3 1994), cert. denied, 514 U. S. 1016
(1995);
Farkas v.
Blue Cross &
Blue
Shield, 24 F.3d
853, 855-860
(CA6 1994);
Abbey v.
Sullivan, 978 F.2d
37,
41-44 (CA2 1992);
National Kidney Patients
Assn. v.
Sullivan, 958 F.2d
1127, 1130-1134
(CADC 1992), cert. denied,
10
506 U. S. 1049 (1993). We granted certiorari to resolve those
differences.
II
Section 405(h) purports to make exclusive the judicial review
method set forth in § 405(g). Its second sentence says that "[n]o
findings of fact or decision of the [Secretary] shall be reviewed
by any person, tribunal, or governmental agency except as herein
provided." § 405(h). Its third sentence, directly at issue here,
says that "[n]o 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." (Emphasis added.)
The scope of the italicized language "to recover on any claim
arising under" the Social Security (or, as incorporated through §
1395ii, the Medicare) Act is, if read alone, uncertain. Those words
clearly apply in a typical Social Security or Medicare benefits
case, where an individual seeks a monetary benefit from the agency
(say, a disability payment, or payment for some medical procedure),
the agency denies the benefit, and the individual challenges the
lawfulness of that denial. The statute plainly bars § 1331 review
in such a case, irrespective of whether the individual challenges
the agency's denial on evidentiary, rule-related, statutory,
constitutional, or other legal grounds. But does the statute's bar
apply when one who
might later seek money or some other
benefit from (or contest the imposition of a penalty by) the agency
challenges in advance (in a § 1331 action) the lawfulness of a
policy, regulation, or statute that
might later bar recovery
of that benefit (or authorize the imposition of the penalty)?
Suppose, as here, a group of such individuals, needing advance
knowledge for planning purposes, together bring a § 1331 action
challenging such a rule or regulation on general legal grounds. Is
such an action one "to recover on any claim arising under" the
Social Security or Medicare Acts? That, in effect, is the question
before us.
11
III
In answering the question, we temporarily put the case on which
the Court of Appeals relied,
Michigan Academy, supra, to the
side. Were we not to take account of that case, § 405(h) as
interpreted by the Court's earlier cases of
Weinberger v.
Salfi, supra, and
Heckler v.
Ringer, supra,
would clearly bar this § 1331 lawsuit.
In
Salfi, a mother and a daughter, filing on behalf of
themselves and a class of individuals, brought a § 1331 action
challenging the constitutionality of a statutory provision that, if
valid, would deny them Social Security benefits. See 42 U. S. C. §§
416(c)(5), (e)(2) (imposing a duration-ofrelationship Social
Security eligibility requirement for surviving wives and
stepchildren of deceased wage earners). The mother and daughter had
appeared before the agency but had not completed its processes. The
class presumably included some who had, and some who had not,
appeared before the agency; the complaint did not say. This Court
held that § 405(h) barred § 1331 jurisdiction for all members of
the class because "it is the Social Security Act which provides
both the standing and the substantive basis for the presentation of
thee] constitutional contentions."
Salfi, supra, at 760-761.
The Court added that the bar applies "irrespective of whether
resort to judicial processes is necessitated by discretionary
decisions of the Secretary or by his nondiscretionary application
of allegedly unconstitutional statutory restrictions." 422 U. S.,
at 762. It also pointed out that the bar did not "preclude
constitutional challenges," but simply "require[d] that they be
brought" under the same "jurisdictional grants" and "in conformity
with the same standards" applicable "to nonconstitutional claims
arising under the Act."
Ibid.
We concede that the Court also pointed to certain special
features of the case not present here. The plaintiff class had
asked for relief that included a direction to the Secretary to pay
Social Security benefits to those entitled to them but for
12
the challenged provision. See
id., at 761. And the Court
thought this fact helped make clear that the action arose "under
the Act whose benefits [were] sought."
Ibid. But in a later
case,
Ringer, the Court reached a similar result despite the
absence of any request for such relief. See 466 U. S., at 616,
623.
In
Ringer, four individuals brought a § 1331 action
challenging the lawfulness (under statutes and the Constitution) of
the agency's determination not to provide Medicare Part A
reimbursement to those who had undergone a particular medical
operation. The Court held that § 405(h) barred § 1331 jurisdiction
over the action, even though the challenge was in part to the
agency's procedures, the relief requested amounted simply to a
declaration of invalidity (not an order requiring payment), and one
plaintiff had as yet no valid claim for reimbursement because he
had not even undergone the operation and would likely never do so
unless a court set aside as unlawful the challenged agency "no
reimbursement" determination. See
id., at 614-616, 621-623.
The Court reiterated that § 405(h) applies where "both the standing
and the substantive basis for the presentation" of a claim is the
Medicare Act,
id., at 615 (quoting
Salfi, 422 U. S.,
at 760-761) (internal quotation marks omitted), adding that a
"claim for future benefits" is a § 405(h) "claim," 466 U. S., at
621-622, and that "all aspects" of any such present or future claim
must be "channeled" through the administrative process,
id.,
at 614. See also
Your Home Visiting Nurse Services, Inc. v.
Shalala, 525
U. S. 449, 456 (1999);
Califano v.
Sanders, 430
U. S. 99, 103-104, n. 3 (1977).
As so interpreted, the bar of § 405(h) reaches beyond ordinary
administrative law principles of "ripeness" and "exhaustion of
administrative remedies," see
Salfi, supra, at 757-doctrines
that in any event normally require channeling a legal challenge
through the agency. See
Abbott Laboratories v.
Gardner, 387
U. S. 136, 148-149 (1967) (ripeness);
McKart v.
United States, 395 U. S. 185, 193-196
(1969) (ex-
13
haustion). Indeed, in this very case, the Seventh Circuit held
that several of respondent's claims were not ripe and remanded for
ripeness review of the remainder. 143 F. 3d, at 1077-1078.
Doctrines of "ripeness" and "exhaustion" contain exceptions,
however, which exceptions permit early review when, for example,
the legal question is "fit" for resolution and delay means
hardship, see
Abbott Laboratories, supra, at 148-149, or
when exhaustion would prove "futile," see
McCarthy v.
Madigan, 503
U. S. 140, 147-148 (1992);
McKart, supra, at 197-201.
(And sometimes Congress expressly authorizes preenforcement review,
though not here. See,
e. g., 15 U. S. C. §
2618(a)(1)(A) (Toxic Substances Control Act).)
Insofar as § 405(h) prevents application of the "ripeness" and
"exhaustion" exceptions, i.
e., insofar as it demands the
"channeling" of virtually all legal attacks through the agency, it
assures the agency greater opportunity to apply, interpret, or
revise policies, regulations, or statutes without possibly
premature interference by different individual courts applying
"ripeness" and "exhaustion" exceptions case by case. But this
assurance comes at a price, namely, occasional individual,
delay-related hardship. In the context of a massive, complex health
and safety program such as Medicare, embodied in hundreds of pages
of statutes and thousands of pages of often interrelated
regulations, any of which may become the subject of a legal
challenge in any of several different courts, paying this price may
seem justified. In any event, such was the judgment of Congress as
understood in
Salfi and
Ringer. See
Ringer,
supra, at 627;
Salfi, supra, at 762.
Despite the urging of the Council and supporting
amici,
we cannot distinguish
Salfi and
Ringer from the case
before us. Those cases themselves foreclose distinctions based upon
the "potential future" versus the "actual present" nature of the
claim, the "general legal" versus the "factspecific" nature of the
challenge, the "collateral" versus
14
"noncollateral" nature of the issues, or the "declaratory"
versus "injunctive" nature of the relief sought. Nor can we accept
a distinction that limits the scope of § 405(h) to claims for
monetary benefits. Claims for money, claims for other benefits,
claims of program eligibility, and claims that contest a sanction
or remedy may all similarly rest upon individual fact-related
circumstances, may all similarly dispute agency policy
determinations, or may all similarly involve the application,
interpretation, or constitutionality of interrelated regulations or
statutory provisions. There is no reason to distinguish among them
in terms of the language or in terms of the purposes of § 405(h).
Section 1395ii's blanket incorporation of that provision into the
Medicare Act as a whole certainly contains no such distinction. Nor
for similar reasons can we here limit those provisions to claims
that involve "amounts."
The Council cites two other cases in support of its efforts to
distinguish
Salfi and
Ringer: McNary v.
Haitian
Refugee Center, Inc., 498 U. S. 479 (1991), and
Mathews v.
Eldridge, 424 U. S. 319 (1976). In
Haitian Refugee Center, the Court held permissible a § 1331
challenge to "a group of decisions or a practice or procedure
employed in making decisions" despite an immigration statute that
barred § 1331 challenges to any Immigration and Naturalization
Service "'determination respecting an application for adjustment of
status'" under the Special Agricultural Workers' program. 498 U.
S., at 491-498.
Haitian Refugee Center's outcome, however,
turned on the different language of that different statute. Indeed,
the Court suggested that statutory language similar to the language
at issue here-any claim "arising under" the Medicare or Social
Security Acts, § 405(h)would have led it to a different legal
conclusion. See
id., at 494 (using as an example a statute
precluding review of " 'all causes ... arising under any of'" the
immigration statutes).
In
Eldridge, the Court held permissible a District Court
lawsuit challenging the constitutionality of agency proce-
15
dures authorizing termination of Social Security disability
payments without a pretermination hearing. See 424 U. S., at
326-332.
Eldridge, however, is a case in which the Court
found that the respondent
had followed the special review
procedures set forth in § 405(g), thereby
complying with,
rather than
disregarding, the strictures of § 405(h). See
id., at 326-327 (holding jurisdiction available only under §
405(g)). The Court characterized the constitutional issue the
respondent raised as "collateral" to his claim for benefits, but it
did so as a basis for requiring the agency to excuse, where the
agency would not do so on its own, see
Salfi, 422 U. S., at
766-767, some (but not all) of the procedural steps set forth in §
405(g). 424 U. S., at 329-332 (identifying collateral nature of the
claim and irreparable injury as reasons to excuse § 405(g)'s
exhaustion requirements); see also
Bowen v.
City of New
York, 476 U. S.
467, 483-485 (1986) (noting that
Eldridge factors are
not to be mechanically applied). The Court nonetheless held that §
405(g) contains the nonwaivable and nonexcusable requirement that
an individual present a claim to the agency before raising it in
court. See
Ringer, supra, at 622;
Eldridge, supra, at
329;
Salfi, supra, at 763-764. The Council has not done so
here, and thus cannot establish jurisdiction under § 405(g).
The upshot is that without
Michigan Academy the Council
cannot win. Its precedent-based argument must rest primarily upon
that case.
IV
The Court of Appeals held that
Michigan Academy modified
the Court's earlier holdings by limiting the scope of "[§]1395ii
and therefore § 405(h)" to "amount determinations." 143 F. 3d, at
1075-1076. But we do not agree.
Michigan Academy involved a
§ 1331 suit challenging the lawfulness of HHS regulations that
governed procedures used to calculate benefits under Medicare Part
B-which Part provides voluntary supplementary medical insurance,
e. g., for doctors' fees. See 476 U. S., at 674-675;
United
16
States v.
Erika, Inc., 456 U. S. 201, 202-203
(1982). The Medicare statute, as it then existed, provided for only
limited review of Part B decisions. It allowed the equivalent of §
405(g) review for "eligibility" determinations. See 42 U. S. C. §
1395ff(b)(1)(B) (1982 ed.). It required private insurance carriers
(administering the Part B program) to provide a "fair hearing" for
disputes about Part B "amount determinations." § 1395u(b)(3)(C).
But that was all.
Michigan Academy first discussed the statute's total
silence about review of "challenges mounted against the
method by which ... amounts are to be determined." 476 U.
S., at 675. It held that this silence meant that, although review
was not available
under §J,05(g), the silence did not itself
foreclose other forms of review, say, review in a court action
brought under § 1331. See
id., at 674-678. Cf.
Erika,
supra, at 208 (holding that the Medicare Part B statute's
explicit reference to carrier hearings for amount disputes
does foreclose
all further agency or court review of "amount
determinations").
The Court then asked whether § 405(h) barred 28 U. S. C. § 1331
review of challenges to methodology. Noting the Secretary's
Salfi/Ringer-based argument that § 405(h) barred § 1331
review of
all challenges arising under the Medicare Act and
the respondents' counterargument that § 405(h) barred challenges to
"methods" only where § 405(g) review was available, see
Michigan
Academy, 476 U. S., at 679, the Court wrote:
"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 determina-
17
tions'-i. e., those [matters] ... remitted finally and
exclusively to adjudication by private insurance carriers in a
'fair hearing.' 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." Id., at 680 (footnote
omitted).
The Court's words do not limit the scope of § 405(h) itself to
instances where a plaintiff, invoking § 1331, seeks review of an
"amount determination." Rather, the Court said that it would
"not pass on the meaning of § 405(h) in the abstract."
Ibid. (emphasis added). Instead it focused upon the Medicare
Act's cross-referencing provision, § 1395ii, which makes § 405(h)
applicable
"to the same extent as" it is "applicable" to the
Social Security Act. (Emphasis added.) It interpreted that phrase
as applying § 405(h)
"mutatis mutandis," i.
e.,
"[a]ll necessary changes having been made." Black's Law Dictionary
1039 (7th ed. 1999). And it applied § 1395ii with one important
change of detail-a change produced by
not applying § 405(h)
where its application to a particular category of cases, such as
Medicare Part B "methodology" challenges, would not lead to a
channeling of review through the agency, but would mean no review
at all. The Court added that a "'serious constitutional question'
... would arise if we construed § 1395ii to deny a judicial forum
for constitutional claims arising under Part B." 476 U. S., at 681,
n. 12 (quoting
Salfi, 422 U. S., at 762 (citing
Johnson v.
Robison, 415 U. S. 361, 366-367
(1974))).
More than that: Were the Court of Appeals correct in believing
that
Michigan Academy limited the scope of § 405(h) itself
to "amount determinations," that case would have significantly
affected not only Medicare Part B cases but cases arising under the
Social Security Act and Medicare Part A as well. It accordingly
would have overturned or dramatically limited this Court's earlier
precedents, such as
Salfi and
Ringer, which involved,
respectively, those programs.
18
It would, moreover, have created a hardly justifiable
distinction between "amount determinations" and many other similar
HHS determinations, see
supra, at 14. And we do not
understand why Congress, as JUSTICE STEVENS believes,
post,
at 30-31 (dissenting opinion), would have wanted to compel Medicare
patients, but not Medicare providers, to channel their claims
through the agency. Cf. Brief for Respondent 7-8, 18-21, 30-31
(apparently conceding the point). This Court does not normally
overturn, or so dramatically limit, earlier authority
sub
silentio. And we agree with those Circuits that have held the
Court did not do so in this instance. See
Michigan Assn. of
Homes and Servs., 127 F. 3d, at 500-501;
American Academy of
Dermatology, 118 F. 3d, at 1499-1501;
St. Francis Medical
Center, 32 F. 3d, at
812; Farkas, 24 F. 3d, at 855-861;
Abbey, 978 F. 2d, at 41-44;
National Kidney Patients
Assn., 958 F. 2d, at 1130-1134.
JUSTICE THOMAS maintains that
Michigan Academy "must have
established," by way of a new interpretation of § 1395ii, the
critical distinction between a dispute about an agency
determination in a particular case and a more general dispute
about, for example, the agency's authority to promulgate a set of
regulations, i.
e., the very distinction that this Court's
earlier cases deny.
Post, at 38 (dissenting opinion). He
says that, in this respect, we have mistaken
Michigan
Academy's "reasoning" (the presumption against preclusion of
judicial review) for its "holding."
Post, at 39-40. And, he
finds the holding consistent with earlier cases such as
Ringer because, he says, in
Ringer everyone simply
assumed without argument that § 1395ii's channeling provision fully
incorporated the whole of § 405(h).
Post, at 40-42.
For one thing, the language to which JUSTICE THOMAS points
simply says that "Congres[s] inten[ded] to foreclose review only of
'amount determinations'" and not "matters which Congress did
not
delegate to private carriers, such as challenges to the
validity of the Secretary's instructions and regulations,"
Michigan Academy, supra, at 680 (emphasis
19
added). That language refers to particular features of the
Medicare Part B program-"private carriers" and "amount
determinations"-which are not here before us. And its reference to
"foreclosure" of review quite obviously cannot be taken to refer to
§ 1395ii because, as we have explained, § 1395ii is a channeling
requirement, not a foreclosure provision-of "amount determinations"
or anything else. In short, it is difficult to reconcile JUSTICE
THOMAS' characterization of
Michigan Academy as a holding
that § 1395ii is "trigger[ed]" only by "challenges to ...
particular determinations,"
post, at 40, with the
Michigan Academy language to which he points.
Regardless, it is more plausible to read
Michigan Academy
as
holding that § 1395ii does not apply § 405(h) where
application of § 405(h) would not simply channel review through the
agency, but would mean no review at all. And contrary to JUSTICE
SCALIA'S suggestion,
post, at 31-32 (dissenting opinion),
that single rule applies to Medicare Part A as much as to Medicare
Part B. This latter holding, as we have said, has the virtues of
consistency with
Michigan Academy's actual language;
consistency with the holdings of earlier cases such as
Ringer; and consistency with the distinction that this Court
has often drawn between a total preclusion of review and
postponement of review. See,
e. g., Salfi,
supra, at 762 (distinguishing § 405(h)'s channeling requirement
from the complete preclusion of judicial review at issue in
Robison, supra, at 373);
Thunder Basin Coal Co. v.
Reich, 510 U.
S. 200, 207, n. 8 (1994) (strong presumption against preclusion
of review is not implicated by provision postponing review);
Haitian Refugee Center, 498 U. S., at 496-499
(distinguishing between
Ringer and
Michigan Academy
and finding the case governed by the latter because the statute
precluded all meaningful judicial review). JUSTICE THOMAS refers to
an "antichanneling" presumption (a "presumption in favor of
preenforcement review,"
post, at 46-47). But any such
presumption must be far weaker than a pre-
20
sumption against preclusion of all review in light of the
traditional ripeness doctrine, which often requires initial
presentation of a claim to an agency. As we have said,
supra, at 13, Congress may well have concluded that a
universal obligation to present a legal claim first to HHS, though
postponing review in some cases, would produce speedier, as well as
better, review overall. And this Court crossed the relevant bridge
long ago when it held that Congress, in both the Social Security
Act and the Medicare Act, insisted upon an initial presentation of
the matter to the agency.
Ringer, 466 U. S., at 627;
Salfi, 422 U. S., at 762.
Michigan Academy does not
require that we reconsider that longstanding interpretation.
v
The Council argues that in any event it falls within the
exception that
Michigan Academy creates, for here as there,
it can obtain no review at all unless it can obtain judicial review
in a § 1331 action. In other words, the Council contends that
application of § 1395ii's channeling provision to the portion of
the Medicare statute and the Medicare regulations at issue in this
case will amount to the "practical equivalent of a total denial of
judicial review."
Haitian Refugee Center, supra, at 497. The
Council, however, has not convinced us that is so.
The Council says that the special review channel that the
Medicare statutes create applies only where the Secretary
terminates a home's provider agreement; it is not available
in the more usual case involving imposition of a lesser remedy,
say, the transfer of patients, the withholding of payments, or the
imposition of a civil monetary penalty.
We have set forth the relevant provisions,
supra, at 8-9;
Appendix,
infra. The specific judicial review provision, §
405(g), authorizes judicial review of "any final decision of the
[Secretary] made after a [§ 405(b)] hearing." A further relevant
provision, § 1395cc(h)(1), authorizes a § 405(b) hearing whenever a
home is "dissatisfied ... with a
determi-
21
nation described in subsection (b)(2)." (Emphasis added.)
And subsection (b)(2) authorizes the Secretary to terminate an
agreement, whenever she
"has determined that the provider
fails to comply substantially with" statutes, agreements, or
"regulations." § 1395cc(b)(2)(A) (emphasis added).
The Secretary states in her brief that the relevant
"determination" that entitles a "dissatisfied" home to review is
any determination that a provider has failed to comply
substantially with the statute, agreements, or regulations, whether
termination or
"some other remedy is imposed." Reply Brief
for Petitioners 14 (emphasis added). The Secretary's regulations
make clear that she so interprets the statute. See 42 CFR §§
498.3(b)(12), 498.1(a)-(b) (1998). The statute's language, though
not free of ambiguity, bears that interpretation. And we are aware
of no convincing countervailing argument. We conclude that the
Secretary's interpretation is legally permissible. See
Chevron
U. S.
A. Inc. v.
Natural Resources Defense Council,
Inc., 467 U. S.
837, 843 (1984);
Your Home Visiting Nurse Services, 525
U. S., at 453; see also 42 U. S. C. § 1395i-3(h)(2)(B)(ii)
(providing a different channel for administrative and judicial
review of decisions imposing civil monetary penalties.)
The Council next argues that the regulations, as implemented by
the enforcement agencies, deny review in practice by (1) insisting
that a nursing home with deficiencies present a corrective plan,
(2) imposing no further sanction or remedy if it does so, but (3)
threatening termination if it does not. See 42 CFR §§ 488.402(d),
488.456(b)(ii) (1998). Because a home cannot risk termination, the
Council adds, it must always submit a plan, thereby avoiding
imposition of a remedy, but simultaneously losing its opportunity
to contest the lawfulness of any remedy-related rules or
regulations. See § 498.3(b)(12). And, the Council's
amici
assert, compliance actually harms the home by subjecting it to
increased sanctions later on by virtue of the unreviewed deficiency
findings,
22
and because the agency makes deficiency findings public on the
Internet, § 488.325.
The short, conclusive answer to these contentions is that the
Secretary denies any such practice. She states in her brief that a
nursing home with deficiencies can test the lawfulness of her
regulations simply by refusing to submit a plan and incurring a
minor penalty. Minor penalties, she says, are the norm, for
"terminations from the program are rare and generally reserved for
the most egregious recidivist institutions." Reply Brief for
Petitioners 18;
ibid. (HHS reports that only 25 out of more
than 13,000 nursing homes were terminated in 1995-1996). She adds
that the "remedy imposed on a facility that fails to submit a plan
of correction or to correct a deficiency-and appeals the
deficiency-is no different than the remedy the Secretary ordinarily
would impose in the first instance."
Ibid. Nor do the
regulations "cause providers to suffer more severe penalties in
later enforcement actions based on findings that are unreviewable."
Ibid. The Secretary concedes that a home's deficiencies are
posted on the Internet, but she notes that a home can post a reply.
See
id., at 20, n. 20.
The Council gives us no convincing reason to doubt the
Secretary's description of the agency's general practice. We
therefore need not decide whether a general agency practice that
forced nursing homes to abandon legitimate challenges to agency
regulations could amount to the "practical equivalent of a total
denial of judicial review,"
Haitian Refugee Center,
498 U. S., at 497. Contrary to what JusTICE THOMAS says,
post, at 42-43,51-52, we do not hold that an individual
party could circumvent § 1395ii's channeling requirement simply
because that party shows that postponement would mean added
inconvenience or cost in an isolated, particular case. Rather, the
question is whether, as applied generally to those covered by a
particular statutory provision, hardship likely found in many cases
turns what ap-
23
pears to be simply a channeling requirement into
complete
preclusion of judicial review. See
Haitian Refugee Center,
supra, at 496-497. Of course, individual hardship may be
mitigated in a different way, namely, through excusing a number of
the steps in the agency process, though not the step of presentment
of the matter to the agency. See
supra, at 14-15;
infra, at 24. But again, the Council has not shown anything
other than potentially isolated instances of the inconveniences
sometimes associated with the postponement of judicial review.
The Council complains that a host of procedural regulations
unlawfully limit the extent to which the agency itself will provide
the administrative review channel leading to judicial review, for
example, regulations insulating from review decisions about a
home's level of noncompliance or a determination to impose one,
rather than another, penalty. See 42 CFR §§ 431.153(b),
488.408(g)(2), 498.3(d)(10)(ii) (1998). The Council's members
remain free, however, after following the special review route that
the statutes prescribe, to contest in court the lawfulness of any
regulation or statute upon which an agency determination depends.
The fact that the agency might not provide a hearing for that
particular contention, or may lack the power to provide one,
see
Sanders, 430 U. S., at 109 ("Constitutional questions
obviously are unsuited to resolution in administrative hearing
procedures ... ");
Salfi, 422 U. S., at 764; Brief for
Petitioners 45, is beside the point because it is the "action"
arising under the Medicare Act that must be channeled through the
agency. See
Salfi, supra, at 762. After the action has been
so channeled, the court will consider the contention when it later
reviews the action. And a court reviewing an agency determination
under § 405(g) has adequate authority to resolve any statutory or
constitutional contention that the agency does not, or cannot,
decide, see
Thunder Basin Coal, 510
24
u. S., at 215, and n. 20;
Haitian Refugee Center, supra,
at
494; Ringer, 466 U. S., at 617;
Salfi, supra, at
762, including, where necessary, the authority to develop an
evidentiary record.
Proceeding through the agency in this way provides the agency
the opportunity to reconsider its policies, interpretations, and
regulations in light of those challenges. Nor need it waste time,
for the agency can waive many of the procedural steps set forth in
§ 405(g), see
Salfi, supra, at 767, and a court can deem
them waived in certain circumstances, see
Eldridge, 424 U.
S., at 330-331, even though the agency technically holds no
"hearing" on the claim. See
Salfi, supra, at 763-767
(holding that Secretary's decision not to challenge the sufficiency
of the appellees' exhaustion was in effect a determination that the
agency had rendered a "final decision" within the meaning of §
405(g));
Eldridge, supra, at 331-332, and n.11 (invoking
practical conception of finality to conclude that collateral nature
of claim and potential irreparable injury from delayed review
satisfy the "final decision" requirement of § 405(g)). At a
minimum, however, the matter must be presented to the agency prior
to review in a federal court. This the Council has not done.
Finally, the Council argues that, because it is an association,
not an individual, it cannot take advantage of the special review
channel, for the statute authorizes review through that channel
only at the request of a "dissatisfied" "institution or agency." 42
U. S. C. § 1395cc(h)(1). The Council speaks only on behalf of its
member institutions, and thus has standing only because of the
injury those members allegedly suffer. See
Arizonans for
Official English v.
Arizona, 520 U. S. 43, 65-66 (1997);
Hunt v.
Washington State Apple Advertising Comm'n,
432 U. S. 333,
343 (1977). It is essentially their rights to review that are at
stake. And the statutes that create the special review channel
adequately protect those rights.
25
VI
For these reasons, this case cannot fit within
Michigan
Academy's exception. The bar of § 405(h) applies. The judgment
of the Court of Appeals is
Reversed.
APPENDIX TO OPINION OF THE COURT
42 U. S. C. § 1395cc(h)(1) provides:
"(h) Dissatisfaction with determination of Secretary; appeal by
institutions or agencies; single notice and hearing
"(1) Except as provided in paragraph (2), an institution or
agency dissatisfied with a determination by the Secretary that it
is not a provider of services or with a determination described in
subsection (b)(2) of this section shall be entitled to a hearing
thereon by the Secretary (after reasonable notice) 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, except
that, in so applying such sections and in applying section
405(l) of this title thereto, any reference therein to the
Commissioner of Social Security or the Social Security
Administration shall be considered a reference to the Secretary or
the Department of Health and Human Services, respectively."
42 U. S. C. § 1395cc(b) provides, in relevant part: "(b)
Termination or nonrenewal of agreements
"(2) The Secretary may refuse to enter into an agreement under
this section or, upon such reasonable notice to the provider and
the public as may be specified in regulations, may refuse to renew
or may terminate such an agreement after the Secretary-
26
Appendix to opinion of the Court
"(A) has determined that the provider fails to comply
substantially with the provisions of the agreement, with the
provisions of this subchapter and regulations thereunder, or with a
corrective action required under section 1395ww(f)(2)(B) of this
title."
42 U. S. C. § 405(b) provides, in relevant part:
"(b) Administrative determination of entitlement to benefits;
findings of fact; hearings; investigations; evidentiary hearings in
reconsiderations of disability benefit terminations; subsequent
applications
"(1) The Commissioner of Social Security is directed to make
findings of fact, and decisions as to the rights of any individual
applying for a payment under this subchapter. Any such decision by
the Commissioner of Social Security which involves a determination
of disability and which is in whole or in part unfavorable to such
individual shall contain a statement of the case, in understandable
language, setting forth a discussion of the evidence, and stating
the Commissioner's determination and the reason or reasons upon
which it is based. Upon request by any such individual or upon
request by a wife, divorced wife, widow, surviving divorced wife,
surviving divorced mother, surviving divorced father, husband,
divorced husband, widower, surviving divorced husband, child, or
parent who makes a showing in writing that his or her rights may be
prejudiced by any decision the Commissioner of Social Security has
rendered, the Commissioner shall give such applicant and such other
individual reasonable notice and opportunity for a hearing with
respect to such decision, and, if a hearing is held, shall, on the
basis of evidence adduced at the hearing, affirm, modify, or
reverse the Commissioner's findings of fact and such decision. Any
such request with respect to such a decision must be filed within
sixty days after notice of
27
such decision is received by the individual making such request.
The Commissioner of Social Security is further authorized, on the
Commissioner's own motion, to hold such hearings and to conduct
such investigations and other proceedings as the Commissioner may
deem necessary or proper for the administration of this subchapter.
In the course of any hearing, investigation, or other proceeding,
the Commissioner may administer oaths and affirmations, examine
witnesses, and receive evidence. Evidence may be received at any
hearing before the Commissioner of Social Security even though
inadmissible under rules of evidence applicable to court
procedure.
"(3)(A) A failure to timely request review of an initial adverse
determination with respect to an application for any benefit under
this subchapter or an adverse determination on reconsideration of
such an initial determination shall not serve as a basis for denial
of a subsequent application for any benefit under this subchapter
if the applicant demonstrates that the applicant, or any other
individual referred to in paragraph (1), failed to so request such
a review acting in good faith reliance upon incorrect, incomplete,
or misleading information, relating to the consequences of
reapplying for benefits in lieu of seeking review of an adverse
determination, provided by any officer or employee of the Social
Security Administration or any State agency acting under section
421 of this title.
"(B) In any notice of an adverse determination with respect to
which a review may be requested under paragraph (1), the
Commissioner of Social Security shall describe in clear and
specific language the effect on possible entitlement to benefits
under this subchapter of choosing to reapply in lieu of requesting
review of the determination."
28
Appendix to opinion of the Court
42 U. S. C. § 405(g) provides: "(g) Judicial review
"Any individual, after any final decision of the Commissioner of
Social Security 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 Commissioner of Social Security 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.
As part of the Commissioner's answer the Commissioner of Social
Security shall file a certified copy of the transcript of the
record including the evidence upon which the findings and decision
complained of are based. 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 Commissioner of Social
Security, with or without remanding the cause for a rehearing. The
findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive, and where a
claim has been denied by the Commissioner of Social Security or a
decision is rendered under subsection (b) of this section which is
adverse to an individual who was a party to the hearing before the
Commissioner of Social Security, because of failure of the claimant
or such individual to submit proof in conformity with any
regulation prescribed under subsection (a) of this section, the
court shall review only the question of conformity with such
regulations and the validity of such regulations. The court may, on
motion of the Commissioner
29
of Social Security made for good cause shown before the
Commissioner files the Commissioner's answer, remand the case to
the Commissioner of Social Security for further action by the
Commissioner of Social Security, and it may at any time order
additional evidence to be taken before the Commissioner of Social
Security, but only upon a showing that there is new evidence which
is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding;
and the Commissioner of Social Security shall, after the case is
remanded, and after hearing such additional evidence if so ordered,
modify or affirm the Commissioner's findings of fact or the
Commissioner's decision, or both, and shall file with the court any
such additional and modified findings of fact and decision, and a
transcript of the additional record and testimony upon which the
Commissioner's action in modifying or affirming was based. Such
additional or modified findings of fact and decision shall be
reviewable only to the extent provided for review of the original
findings of fact and decision. 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. Any action instituted in
accordance with this subsection shall survive notwithstanding any
change in the person occupying the office of Commissioner of Social
Security or any vacancy in such office."
42 U. S. C. § 405(h) provides:
"(h) Finality of Commissioner's decision
"The findings and decision of the Commissioner of Social
Security after a hearing shall be binding upon all individuals who
were parties to such hearing. No findings of fact or decision of
the Commissioner of Social Security shall be reviewed by any
person, tribunal, or governmental agency except as herein
provided.
30
STEVENS, J., dissenting
No action against the United States, the Commissioner of Social
Security, 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. § 1395ii provides:
"The provisions of sections 406 and 416(j) of this title, and of
subsections (a), (d), (e), (h), (i), (j), (k), and (l) 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, except that, in applying such
provisions with respect to this subchapter, any reference therein
to the Commissioner of Social Security or the Social Security
Administration shall be considered a reference to the Secretary or
the Department of Health and Human Services, respectively."
28 U. S. C. § 1331 provides:
"Federal question. The district courts shall have original
jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States."
JUSTICE STEVENS, dissenting.
While I join JUSTICE THOMAS' lucid dissent without
qualification, I think it worthwhile to identify a significant
distinction between cases like
Weinberger v.
Salfi,
422 U. S. 749
(1975), and
Heckler v.
Ringer, 466 U. S. 602 (1984), on
the one hand, and cases like
Bowen v.
Michigan Academy of
Family Physicians, 476 U. S. 667 (1986), and
this case, on the other hand. In the former group, the issue
concerned the plaintiffs' entitlement to benefits; in the latter
two, the issue concerns providers' eligibility for reimbursement.
The distinction between those two types of issues mirrors a
critical distinction between the Social Security Act, 42 U. S. C. §
405, and the Medicare Act, 42 U. S. C. § 1395ii.
31
Disputed claims for Social Security benefits always present a
simple two-party dispute in which the claimant is seeking a
monetary benefit from the Government. A proceeding under § 405 is
correctly described as an action "to recover on any claim arising
under this subchapter." § 405(h). Disputed claims under the
Medicare Act, however, typically involve three parties-the patient,
the provider, and the Secretary. When the issue involves a dispute
over the patient's entitlement to benefits, it is fairly
characterized as an action "to recover" on a claim that is parallel
to a claim for Social Security benefits. The language in § 1395ii
that makes § 405(h) applicable to the Medicare Act "to the same
extent as" it applies to the Social Security Act thus encompasses
claims by patients, but does not necessarily encompass providers'
challenges to the Secretary's regulations.
In
Ringer, the Court, in effect (and, in my view,
erroneously), treated the patients' claim as a premature action "to
recover" benefits that was subject to the strictures in § 405(h).
See 466 U. S., at 620. But in this case, as in
Michigan
Academy, the plaintiffs are providers, not patients. Their
challenges to the Secretary's regulations simply do not fall within
the "to recover" language of § 405(h) that was obviously drafted to
describe pecuniary claims. The incorporation of that language into
the Medicare Act via § 1395ii provides no textual support for the
Court's decision today. Moreover, contrary to the Court's
"Pandora's box" rhetoric,
ante, at 17-18, adherence to the
plain meaning of "to recover" would not make it necessary for the
Court to revisit any of its earlier cases. For this reason, as well
as the reasons set forth by JUSTICE THOMAS, I find nothing in the
relevant statutory text that should be construed to bar this
action.
JUSTICE SCALIA, dissenting.
I join the opinion of JUSTICE THOMAS except for Part III, and
think it necessary to add a few words in explanation
32
THOMAS, J., dissenting
of that vote: I am doubtful whether
Bowen v.
Michigan
Academy of Family Physicians, 476 U. S. 667 (1986), was
correctly decided, but that case being on the books, and involving
as it does a question of statutory interpretation, I believe it
requires affirmance here. There is in my view neither any basis for
holding that 42 U. S. C. § 1395ii has a different meaning with
regard to Part A than with regard to Part B, nor (since repeals by
implication are disfavored) any basis for holding that the
subsequent addition of a judicial-review provision distantly
related to § 1395ii altered the meaning we had authoritatively
pronounced. See
post, at 38, n. 7 (THOMAS, J.,
dissenting).
I do not join Part III of JUSTICE THOMAS'S opinion because its
reliance upon what it calls the presumption of preenforcement
review suggests that
Michigan Academy was
(a
fortiori) correctly decided. I might have thought, as an
original matter, that the categorical language of §§ 1395ii and
405(h) overcame even what JUSTICE THOMAS acknowledges is the
stronger presumption of
some judicial review. See
post, at 45. With regard to the timing of review, I would
not even use the word "presumption" (a term which
Abbott
Laboratories v.
Gardner, 387 U. S. 136 (1967),
applies only to the preference for judicial review at
some
point, see
id., at 140), since that suggests that some
unusually clear statement is required by way of negation. In my
view, preenforcement review is better described as the background
rule, which can be displaced by any reasonable implication
("persuasive reason to believe," as
Abbott Laboratories put
it,
ibid.) from the statute.
JUSTICE THOMAS, with whom JUSTICE STEVENS and JUSTICE KENNEDY
join, and with whom JUSTICE SCALIA joins except as to Part III,
dissenting.
Unlike the majority, I take no position on how 42 U. S. C. §
405(h) applies to respondent's suit. That section is beside the
point in this case because it does not apply of its own
33
force to the Medicare Act, but only by virtue of 42 U. S. c. §
1395ii, the Medicare Act's incorporating reference to § 405(h).1 I
read
Bowen v.
Michigan Academy of Family Physicians,
476 U. S. 667
(1986), to hold that this incorporating reference is triggered when
a particular fact-bound determination is in dispute, but not in the
case, as here, of a "challeng[e] to the validity of the Secretary's
instructions and regulations."
Id., at 680. Though this (or
any) interpretation of § 1395ii is not entirely free from doubt in
light of the arguable tension between
Michigan Academy and
our earlier decision in
Heckler v.
Ringer, 466 U. S. 602 (1984), I
would resolve such doubt by following our longstanding presumption
in favor of preenforcement judicial review. Accordingly, I would
hold that § 405(h) does not apply to respondent's challenge, and
therefore does not preclude respondent from bringing suit under
general federal-question jurisdiction, 28 U. S. C. § 1331.
I A
Michigan Academy was the first time we discussed the
meaning of § 1395ii. In earlier Medicare Act cases where the
plaintiffs had sought to proceed under general federalquestion
jurisdiction, we either had no need to address § 1395ii, or assumed
in passing (and without discussion) that § 1395ii
always
incorporates § 405(h).
Our decision in
United States v.
Erika, Inc.,
456 U. S. 201
(1982), involved the former situation. We dealt there with a Part B
dispute over the appropriate amount of reimbursement for certain
medical supplies.2 The statute provided
1 Section 1395ii provides in relevant part that the provisions
of § 405(h) "shall also apply with respect to [the Medicare Act] to
the same extent as they are applicable with respect to [the Social
Security Act]."
2 Part B of the Medicare Act provides voluntary supplemental
insurance coverage to eligible individuals for certain physician
charges and medical services that are not covered by Part A.
Individuals' Part B benefits
34
THOMAS, J., dissenting
for the determination of benefit amounts to be made by a private
insurance carrier designated by the Secretary, and authorized
de
novo review of the initial determination by another officer
designated by the carrier.
Id., at 203 (citing 42 U. S. C. §
1395u (1982 ed.)). But the statutory scheme did not mention the
possibility of judicial review of Part B benefit amount
determinations, much less review by the Secretary. By contrast, the
statute did expressly provide for administrative review by the
Secretary and judicial review in two instances: disputes concerning
the claimant's eligibility for benefits under Part A or Part B, and
disputes over benefit amount determinations
under Part A.
456 U. S., at 207 (citing 42 U. S. C. § 1395ff (1982 ed.)). We
found this contrast illuminating: "In the context of the statute's
precisely drawn provisions, this omission provides persuasive
evidence that Congress deliberately intended to foreclose further
review of [Part B benefit amount determinations]." 456 U. S., at
208.3 The inference was strong enough that we had no need to
discuss the Government's alternative contention that § 405(h)
expressly precluded a claim under general jurisdictional
provisions. See
id., at 206, n. 6. We therefore had no
occasion to decide whether § 1395ii even incorporates § 405(h) into
the Medicare Act. (So too in
Weinberger v.
Salfi,
422 U. S. 749
(1975), we did not need to interpret § 1395ii, but for a different
and more obvious reason:
Salfi was a Social Security case,
not a Medicare case, so § 405(h) was directly applicable.)
claims are routinely assigned to providers of services, who then
seek reimbursement.
3 Our decision in
Erika illustrates the longstanding
principle that a statute whose provisions are finely wrought may
support the preclusion of judicial review, even though that
preclusion is only by negative implication. See,
e.
g., United States v.
Fausto, 484 U. S. 439, 452
(1988);
Block v.
Community Nutrition Institute,
467 U. S. 340,
351 (1984);
Switchmen v.
National Mediation Bd.,
320 U. S. 297,
305-306 (1943).
35
Our opinion in
Ringer was equally silent on the meaning
of § 1395ii, this time assuming in passing that it operates as a
garden variety incorporating reference of § 405(h),4 an assumption
shared by the parties to the case, see Brief for Petitioners 18,
22, and Brief for Respondents 26-29, in
Heckler v.
Ringer, O. T. 1983, No. 82-1772.
Ringer involved a
dispute over reimbursement for a surgical procedure under Part A of
the Act, see 466 U. S., at 608-609, n. 4, so, unlike in
Erika (which involved Part B), it was clear that the
individual plaintiffs could seek judicial review under § 1395ff
(via § 405(g)) after they had presented a claim for benefits to the
Secretary and suffered an unfavorable final decision. But the
plaintiffs chose not to follow this route to review. Instead, they
attempted to challenge the Secretary's policy prohibiting
reimbursement for the surgery as violating constitutional due
process and several statutory provisions, invoking general
federal-question jurisdiction.5 As noted, we assumed that § 1395ii
incorporates § 405(h) in the situation of a preenforcement
challenge to the Secretary's Medicare Act regulations and policies,
and held that § 405(h)'s third sentence-"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"-expressly precluded
Ringer's suit.
Ringer, 466 U. S., at 615-616.
4 See
Heckler v.
Ringer, 466 U. S. 602, 614-615
(1984) ("The third sentence of 42 U. S. C. § 405(h), made
applicable to the Medicare Act by 42 U. S. C. § 1395ii, provides
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" (alteration in original)).
5 The plaintiffs also asserted, to no avail, that the District
Court had jurisdiction under 28 U. S. C. § 1361 (mandamus) and 42
U. S. C. § 1395ff (1982 ed. and Supp. II) (judicial review of Part
A benefit amount determinations). See
Ringer, supra, at
617-618.
36
THOMAS, J., dissenting
B
We squarely addressed § 1395ii for the first time in our 1986
decision in
Bowen v.
Michigan Academy of Family
Physicians, 476
U. S. 667. The Secretary had adopted a regulation that
authorized the payment of Part B benefits in different amounts for
similar physicians' services. An association of family physicians
and several individual doctors filed suit to challenge this
regulation.
Id., at 668. These plaintiffs asserted no
concrete claim to Part B benefits, for judicial review of such a
claim was clearly foreclosed by the statute as interpreted in
Erika; they instead invoked federal-question jurisdiction.
Our unanimous opinion 6 in their favor began by rejecting the
Secretary's contention that the provisions construed in
Erika impliedly precluded review not only of benefit amount
determinations under Part B, but also of challenges against the
Secretary's methodologies for determining such amounts. 476 U. S.,
at 673. The "precisely drawn" provisions on which we had focused in
Erika did not support the Secretary's proposed inference, as
they "simply d[id] not speak to challenges mounted against the
method by which such amounts are to be determined." 476 U.
S., at 675.
We then turned to the Secretary's argument that § 405(h),
incorporated by § 1395ii into the Medicare Act,
expressly
precludes a claimant from resorting to general federalquestion
jurisdiction under 28 U. S. C. § 1331. The Secretary contended that
under
Salfi, supra, at 756-762, and
Ringer, supra, at
614-616, "the third sentence of § 405(h) by its terms prevents any
resort to the grant of general federal-question jurisdiction
contained in 28 U. S. C. § 1331." 476 U. S., at 679. The plaintiffs
responded that § 405(h)'s third sentence precludes use of § 1331
only when Congress has provided specific procedures for judicial
review of final
6 Then-JusTICE REHNQUIST did not participate.
37
agency action.
Ibid. We declined, however, to enter that
debate:
"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 Congo Rec. 33992 (1972)
(remarks of Sen. Bennett), remitted finally and exclusively to
adjudication by private insurance carriers in a 'fair hearing.' 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." Id., at
680 (footnotes omitted).
We accordingly held that the physicians' challenge to the
Secretary's regulation could proceed under general federalquestion
jurisdiction.
C
In light of the quoted passage, it is beyond dispute that our
holding in
Michigan Academy rested squarely on the meaning
of § 1395ii. Accord,
ante, at 17. Under
Michigan
Academy, a case involving an "amount determinatio[n]" would
trigger § 1395ii's incorporation of § 405(h), and thus bar
federal-question jurisdiction; a "challeng[e] to the valid-
38
THOMAS, J., dissenting
ity of the Secretary's instructions and regulations" would not.
476 U. S., at 680.
This dichotomy does not translate exactly to the instant case,
the majority tells us, because the Secretary's determination to
terminate a nursing home's provider agreement, see 42 U. S. C. §
1395cc(b) (1994 ed. and Supp. III), in no sense resembles the
determination of an "amount" of an individual's benefits under Part
A or B, see § 1395ff. Therefore, the majority concludes,
Michigan Academy's interpretation of § 1395ii simply does
not bear on respondent's challenge to the Secretary's regulations
here. See
ante, at 20.
But § 1395ii applies to more than just § 1395ff, the provision
concerning benefit amounts; it applies, rather, to the entire
Medicare Act, including § 1395cc, the provision concerning provider
agreements that
is directly at issue here. And we have
"stron[g] cause to construe a
single formulation ... the
same way each time it is called into play."
Ratzlaf v.
United States, 510 U. S. 135, 143
(1994). Accordingly, the interpretation of § 1395ii that we
announced in
Michigan Academy must have a more general
import than a distinction between Part B benefits determinations,
on the one hand, and Part B methods guiding such determinations, on
the other.
Michigan Academy must have established a
distinction between, on the one hand, a dispute over
any
particularized determination and, on the other hand, a "challeng[e]
to the validity of the Secretary's instructions and regulations,"
476 U. S., at 680.7 The former triggers § 1395ii's incorporation of
§ 405(h); the latter does not.
This case obviously falls into the latter category. Respondent
in no way disputes any particularized determina-
7 For this reason, it is beside the point that Congress amended
§ 1395ff after
Michigan Academy to make express provision
for administrative and judicial review of Part B benefits claims.
See Pub. L. 99-509, § 9341(a)(1)(B), 100 Stat. 2037. Congress has
not substantively amended § 1395ii since
Michigan
Academy, and so
Michigan Academy's gloss on § 1395ii
deserves as much
stare decisis respect today as it ever
has.
39
tions, but instead mounts a general challenge to the Secretary's
regulations (and manual) prescribing inspection and enforcement
procedures for the teams that survey participating nursing homes,
59 Fed. Reg. 56116 (1994), claiming that these were promulgated
without notice and comment, are unconstitutionally vague,
contravene the Medicare Act's requirement of enforcement
consistency, and violate due process by affording insufficient
administrative review. Like the
Michigan Academy plaintiffs,
who challenged the Secretary's regulation concerning the payment of
benefits for physicians' services, 476 U. S., at 668, respondent
may proceed in District Court under general federal-question
jurisdiction.
Perhaps recognizing that this result follows straightforwardly
from what our
Michigan Academy opinion actually says, the
majority creatively recasts that decision as having established an
exception to § 1395ii's incorporation of § 405(h): Section 1395ii
will not apply "where its application to a particular category of
cases, such as Medicare Part B 'methodology' challenges, would not
lead to a channeling of review through the agency, but would mean
no review at all."
Ante, at 17. In doing so, the Court
confuses the reasoning (more precisely,
one half of the
reasoning) of
Michigan Academy with the holding in that
case. In
Michigan Academy, we undoubtedly relied on the
reality that, if the challenge to the Secretary's regulations were
not allowed to proceed under general federal-question jurisdiction,
the Secretary's administration of Part B benefit amount
determinations would be entirely insulated from judicial review, a
result in tension with the "'strong presumption that Congress did
not mean to prohibit all judicial review' of executive action."8
476 U. S., at 681 (quoting
Dunlop v.
Bachow-
8 The majority opinion may enjoy the "virtu[e] of consistency
with
Michigan Academy's actual language,"
ante, at
19-but only
some of the language, and not the most important
part. As I explain in the text, the language that the majority
opinion purports to track merely sets forth one of the two
rationales for the holding in
Michigan Academy. My
reading
40
THOMAS, J., dissenting
ski, 421 U.
S. 560, 567 (1975)). But we placed at least equal reliance on
the legislative history of the 1972 amendments to the Medicare Act,
see 476 U. S., at 680, and our
holding was that challenges
to particular determinations would trigger § 1395ii, whereas
challenges to the Secretary's instructions and regulations
governing particular determinations would not,
ibid.; see
supra, at 38. Indeed, in setting aside the physicians'
argument that § 405(h) bars general federalquestion jurisdiction
only when Congress has provided "specific procedures ... for
judicial review of final action by the Secretary,"
Michigan
Academy, supra, at 679-680, we expressly
declined to
decide the case by announcing the "exception" suggested by the
majority. While we might have done so, cf.
Mathews v.
Eldridge, 424
U. S. 319, 328330 (1976) (describing limited exception to §
405(g)'s requirement that Secretary's decision be "final" before
judicial review may be sought), we simply did not phrase our
holding in those terms.
II
To be sure, the reading of
Michigan Academy that I would
adopt (and that the Court of Appeals adopted below,
143 F.3d
1072, 1075-1076
(CA7 1998)), dictates a different result
in the earlier
Ringer case. In
Ringer, recall, the
respondents were individual Medicare claimants who brought a
challenge to the Secretary's policy regarding payment of Medicare
benefits for a specific surgical procedure. As noted, we (and the
parties) simply assumed that § 1395ii's incorporating reference to
§ 405(h) was triggered by such a challenge, and proceeded directly
to decide the case based on § 405(h). And yet, under
Michigan
Academy's gloss on § 1395ii, we would never have reached §
405(h) because § 1395ii would not have
of
Michigan Academy, not the majority's, is consistent
with the language in
Michigan Academy setting forth that
case's
holding: § 1395ii "foreclose[s] review only of
'amount determinations,' ... [not] challenges to the validity of
the Secretary's instructions and regulations." 476 U. S., at
680.
41
been activated by such a "challeng[e] to the validity of the
Secretary's ... regulatio[n]." 476 U. S., at 680.9
But it is one thing to conclude that the result in
Ringer
would have been different had we applied
Michigan Academy's
§ 1395ii analysis to that case; it is quite another to declare that
Michigan Academy effected a
sub silentio overruling
of
Ringer. Contrary to the majority's representation,
ante, at 18, my approach entails only the former, and
therefore does not offend
stare decisis principles as a
sub silentio overruling would. As noted,
supra, at
35, our opinion in
Ringer did not expressly decide the
meaning of § 1395ii, assuming instead (as the parties had done)
that § 1395ii functions as a garden variety incorporating
reference, i.
e., that § 1395ii incorporates § 405(h) in
every case involving the Medicare Act. Accordingly, "[t]he most
that can be said is that the point was in the cas[e] if anyone had
seen fit to raise it. Questions which merely lurk in the record,
neither brought to the attention of the court nor ruled upon, are
not to be considered as having been so decided as to constitute
precedents."
Webster v.
Fall, 266 U. S. 507, 511
(1925). See also,
e. g., Lopez v.
Monterey County,
525 U. S. 266,
281 (1999) ("[T]his Court is not bound by its prior assumptions");
United States v.
L. A. Tucker Truck Lines, Inc.,
344 U. S. 33, 38
(1952). In other words,
Michigan Academy could not have
overruled
Ringer (sub silentio or otherwise) on a
9 While I readily agree with the majority's observation that my
reading of
Michigan Academy implies a different result in
Ringer, I fail to comprehend the majority's assertion that
my view of
Michigan Academy also implies a different result
in
Weinberger v.
Salfi, 422 U. S. 749 (1975). See
ante, at 18-19. As noted,
supra, at 34,
Salfi
was a Social Security case, and so § 405(h) applied of its own
force.
Our
post-Michigan Academy cases are entirely consistent
with my reading of
Michigan Academy. For example, in
Your
Home Visiting Nurse Services, Inc. v.
Shalala, 525 U. S. 449 (1999), the
challenge was directed to a particular determination of
reimbursement benefits, and we held that § 405(h), as incorporated
into the Medicare Act by § 1395ii, precluded resort to general
federal-question jurisdiction.
42
THOMAS, J., dissenting
point that
Ringer did not decide. The majority opinion
can therefore claim no support from its asserted "consistency with
the holdings of earlier cases such as
Ringer." Ante, at 19.
Ringer simply does not constitute a holding on the meaning
of § 1395ii; or if it does, the majority has engaged in the very
practice it condemns-a
sub silentio overruling (of
Webster v.
Fall, supra).
Moreover, the majority's criticism of my approach as declaring a
sub silentio overruling is just as well directed at itself,
for
Ringer is no less overruled by the majority's view of
Michigan Academy than by my own. According to the majority,
the
Michigan Academy "exception" to § 1395ii applies where
the aggrieved party "can obtain no review at all unless it can
obtain judicial review in a § 1331 action."
Ante, at 20.
Consider how this test would apply to Freeman Ringer, one of the
four plaintiffs in
Ringer. Ringer sought to challenge the
Secretary's policy proscribing reimbursement for a certain type of
surgery (a Part A benefits issue), invoking general
federal-question jurisdiction. He had no concrete reimbursement
claim to present, for he did not possess the financial means to pay
for the surgery up front and await reimbursement. Nor, apparently,
could he obtain private financing for the surgery. See
Ringer, 466 U. S., at
620; id., at 637, n. 24
(STEVENS, J., concurring in judgment in part and dissenting in
part) ("Ringer would like nothing more than to give the Secretary
[the] opportunity [to rule on a concrete claim for
reimbursement]"); Brief for Petitioners 42-43, n. 23. It seems to
me that Ringer is the paradigmatic example of a party who "can
obtain no review at all unless [he] can obtain judicial review in a
§ 1331 action,"
ante, at 20, such that he plainly would
qualify for the
Michigan Academy exception to § 1395ii as
described by the majority.
The majority purports to reaffirm
Ringer in toto, but it
does so only by revising that case to hold that Ringer,
notwithstanding his own inability to obtain judicial review
with-
43
out an anticipatory challenge, did not qualify for the
Michigan Academy exception to § 1395ii because others in his
class could afford to pursue review by undergoing the surgery and
presenting a concrete claim for reimbursement. See
ante, at
12. Setting aside the peculiarity of interpreting a statute to deny
judicial review to the poor with the promise that the rich will
obtain review in their stead,lO the majority's gloss on
Ringer ignores the
Ringer Court's own description of
its holding. In rejecting plaintiff Ringer's attempt to use § 1331,
the
Ringer Court did not rely on some notion that Ringer or
those similarly situated to him could as a practical matter seek
judicial review through some means other than § 1331; the Court
instead reasoned that Ringer's claim was "essentially one
requesting the payment of benefits for [a particular] surgery, a
claim cognizable only under § 405(g)." 466 u. S., at 620.
III
It would overstate matters to say that the foregoing analysis
demonstrates beyond question that respondent may invoke general
federal-question jurisdiction. Any remaining doubt is resolved,
however, by the longstanding canon that "judicial review of
executive action 'will not be cut off unless there is persuasive
reason to believe that such was the purpose of Congress.'"
Gutierrez de Martinez v.
Lamagno, 515 U. S. 417, 424 (1995)
(quoting
Abbott Laboratories v.
Gardner, 387 U. S. 136, 140
(1967)). See also,
e. g., McNary v.
Haitian Refugee
Center, Inc., 498
U. S. 479, 496 (1991);
10 The majority attempts to soften the blow by explaining that
"individual hardship may be mitigated in a different way, namely,
through excusing a number of the steps in the agency process,
though not the step of presentment of the matter to the agency."
Ante, at 23 (emphasis added). But the italicized words show why
the majority's concession provides cold comfort to a plaintiff like
Ringer-or, arguably, the nursing homes represented by respondent
here, see
ante, at 21-22-who cannot afford to present a
concrete claim to the agency, and thus can obtain neither
administrative nor judicial review.
44
THOMAS, J., dissenting
Traynor v.
Turnage, 485 U. S. 535, 542
(1988);
Michigan Academy, 476 U. S., at 670;
Johnson
v.
Robison, 415 U. S. 361, 373-374
(1974);
Stark v.
Wickard, 321 U. S. 288, 309310
(1944).
The rationale for this "presumption,"
Abbott Laboratories,
supra, at 140, is straightforward enough: Our constitutional
structure contemplates judicial review as a check on administrative
action that is in disregard of legislative mandates or
constitutional rights. As Chief Justice Marshall explained:
"'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 claimant] 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.''' United States v. Nourse, 9 Pet. 8,
28-29 (1835) (as quoted in Gutierrez de Martinez, supra, at
424).
See also S. Breyer, R. Stewart, C. Sunstein, & M. Spitzer,
Administrative Law and Regulatory Policy 832 (4th ed. 1999)
(suggesting that "the presumption of review owes its source to
considerations of accountability and legislative supremacy, ideas
embodied in article I, and also to rule of law considerations,
embodied in the due process clause");
Michigan Academy,
supra, at 681-682, n. 12 (noting that interpreting statute to
allow judicial review would avoid the serious constitutional issue
that would arise if a judicial forum for constitutional claims were
denied).l1
11 We have observed that Congress "reinforced" the presumption
by enacting the Administrative Procedure Act (APA), 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
45
Contrary to the Secretary's representation, Brief for
Petitioners 31-32, the presumption favors not merely judicial
review "at some point," but
preenforcement judicial review.
While it is true that the presumption may not be quite as strong
when the question is now-or-Iater instead of now-ornever, see
Thunder Basin Coal Co. v.
Reich, 510 U. S. 200, 207, n. 8,
215, n. 20 (1994), our cases clearly establish that the presumption
applies in the former context. Indeed,
Abbott Laboratories,
the "important case ... which marks the recent era of increased
access to judicial review," Breyer,
supra, at 831, itself
involved a preenforcement challenge to a regulation. Although the
Food, Drug, and Cosmetic Act (FDCA) did not authorize a
preenforcement challenge to the type of regulation the Secretary
had issued, and indeed expressly enumerated certain
other
kinds of regulations for which preenforcement review was available,
we explained that these indicia of congressional intent must be
viewed through the lens of the presumption:
"The first question we consider is whether Congress by the
[FDCA] intended to forbid pre-enforcement 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." Abbott Laboratories, 387 U. S., at 139-140.
We thus held that the suit could proceed.
Id., at
148.
More recently, in
Haitian Refugee Center, we reaffirmed
the applicability of the presumption in the context of a
preenforcement challenge. At issue in that case was the
constitutionality of the Immigration and Naturalization
Service's
within the meaning of a relevant statute.'''
Abbott
Laboratories v.
Gardner,
387 U. S. 136, 140 (1967)
(quoting 5 U. S. C. § 702 (1964 ed., Supp. 1II)).
46
THOMAS, J., dissenting
(INS) procedures for administering an amnesty program for
illegal aliens. Despite the availability of judicial review of
these procedures in the context of statutorily authorized review of
orders of exclusion or deportation, and notwithstanding the
statute's express prohibition of judicial review of an INS
"determination respecting an application for adjustment of status
[under the amnesty program]," 8 U. S. C. § 1160(e)(1), we held that
these factors did not suffice to trump the "strong presumption in
favor of judicial review of administrative action."
Haitian
Refugee Center, 498 U. S., at 498.
The majority declines to employ the presumption in favor of
preenforcement review to resolve the ambiguity in § 1395ii;
instead, it concocts a presumption
against preenforcement
review, stating that its holding is "consisten[t] with the
distinction that this Court has often drawn between a total
preclusion of review and postponement of review."
Ante, at
19 (citing
Salfi, 422 U. S., at 762;
Thunder Basin Coal,
supra, at 207, n. 8;
Haitian Refugee Center, supra, at
496-499). But
Thunder Basin Coal, as noted,
supra, at
45, teaches only that the presumption is not as strong when the
problem is one of delayed judicial review rather than complete
denial of judicial review-it does not establish that the
presumption lacks
any force in the former context. And
Haitian Refugee Center directly
supports the
applicability of the presumption in favor of preenforcement review;
we there invoked the presumption even though the plaintiffs had a
postenforcement review option-voluntarily surrendering themselves
for deportation and availing themselves of the statutorily
authorized judicial review of an order of exclusion or deportation.
498 U. S., at 496. Only
Salfi provides the majority with
modest support insofar as it acknowledged (and distinguished) just
the presumption against the
complete denial of
judicial review, 422 U. S., at 762, omitting mention of the
presumption against delayed judicial review. But this omission is
readily explained: Presentment of a Social
47
Security benefits claim for purposes of 42 U. S. C. § 405(g) is
accomplished by the near-costless act of filing an application for
benefits, to be contrasted with the extremely burdensome
presentment requirement facing the aliens in
Haitian Refugee
Center or the named plaintiff in
Ringer. The only
significant hardship facing the claimants in
Salfi arose
from the possibility that a lengthy administrative review process
would postpone a judicial decision ordering the Secretary to pay
the disputed benefits; but the Court took care of that problem by
leniently construing § 405(g)'s requirement of a "final" agency
decision and by allowing the Secretary to waive entirely § 405(g)'s
requirement that decision be made "after a hearing." At bottom,
then, the majority cannot demonstrate why the presumption in favor
of preenforcement review, which dates at least from
Abbott
Laboratories, should not be invoked to resolve the debate
between our conflicting readings of § 1395ii.
There is a practical reason why we employ the presumption not
only to questions of whether judicial review is available, but also
to questions of
when judicial review is available. Delayed
review-that is, a requirement that a regulated entity disobey the
regulation, suffer an enforcement proceeding by the agency, and
only then seek judicial review-may mean no review at all. For when
the costs of "presenting" a claim via the delayed review route
exceed the costs of simply complying with the regulation, the
regulated entity will buckle under and comply, even when the
regulation is plainly invalid. See Seidenfeld, Playing Games with
the Timing of Judicial Review, 58 Ohio St. L. J. 85, 104 (1997).
And we can expect that this consequence will often flow from an
interpretation of an ambiguous statute to bar preenforcement
review. In
Haitian Refugee Center, for example, the aliens'
"postenforcement" review option for asserting their challenge to
the agency's procedures required the aliens to voluntarily
surrender themselves for deportation, suffer an order of deport
a-
48
THOMAS, J., dissenting
tion, and seek judicial review of that order in the court of
appeals. These costs of presentment, we explained, were "[q]uite
obviously ... tantamount to a complete denial of judicial review
for most undocumented aliens." 498 U. S., at 496-497.
A similar predicament faces the nursing homes represented by
respondent in the instant case, who contend that the Secretary's
regulations (and manual) governing enforcement of substantive
standards are unlawful in various respects. The nursing homes'
"postenforcement" review route is delineated by 42 U. S. C. §
1395cc(h)(1), which provides that "an institution or agency
dissatisfied ... with a determination described in subsection
(b)(2) of this section shall be entitled to a hearing thereon by
the Secretary (after reasonable notice) 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." While the meaning of "determination"
in the referenced 42 U. S. C. § 1395cc(b)(2) (1994 ed., Supp. III)
is not entirely free from doubt, the Secretary has interpreted
these provisions to mean that administrative and judicial review is
afforded for "any determination that a provider has failed to
comply substantially with the statute, agreements, or regulations,
whether termination or
'some other remedy is imposed.'"
Ante, at 21 (quoting Reply Brief for Petitioners 14
(emphasis in original)). Still, even under the Secretary's reading,
an inspection team's assessment of a deficiency (for noncompliance)
against the nursing home does not suffice to trigger administrative
and judicial review under § 1395cc(h). Presentment of a claim via §
1395cc(h) requires the nursing home not merely to expose itself to
an assessment of a deficiency by an inspection team, but also to
forbear correction of the deficiency until the Secretary (or her
state designees) impose a remedy.
Respondent and its
amici advance several plausible
reasons why such forbearance will prove costly-indeed, costly
49
enough that compliance with the challenged regulations and
manual is the more rational option. For one, nursing homes face the
prospect of termination-the most severe of remedies-simply by
virtue of failing to submit a voluntary plan of correction and
correct the deficiencies. See 42 CFR § 488.456(b)(1) (1998). The
Secretary's only response is that terminations are rarely imposed
in fact, and certainly are not imposed where the provider has
postponed correction of its deficiencies in order to preserve its
appeal rights. But any such leniency is solely a matter of grace by
the Secretary, see Tr. of Oral Arg. 31, and provides little comfort
to a nursing facility pondering the § 1395cc(h) route to judicial
review. And exposure to the termination remedy is not the only
consequence faced by a nursing home that forestalls correction of
its deficiencies. The Secretary also may impose civil monetary
penalties, which accrue for each day of noncompliance, 42 CFR §§
488.430, 488.440(b) (1998), and thus quite plainly stand as a
calibrated deterrent to the forbearance strategy. Cf.
Ex parte
Young, 209 U. S.
123, 148 (1908) ("[T]o impose upon a party interested the
burden of obtaining a judicial decision ... only upon the condition
that if unsuccessful he must suffer imprisonment and pay fines ...
is, in effect, to close up all approaches to the courts").12 Other
costs of the forbearance strategy are less tangible, but
potentially as significant. For example, a finding of a deficiency
at a nursing facility-which may well rest on unbalanced or
inaccurate data-is posted in a place easily accessible to
residents, 42 CFR § 483.10(g)(1) (1998), disclosed
12 In
Thunder Basin Coal Co. v.
Reich, 510 U. S. 200 (1994), the
aggrieved mine operator was similarly subject to civil penalties
($5,000) for each day of noncompliance with statutory provisions,
which would become final and payable after review by the agency and
the appropriate court of appeals.
Id., at 204, n. 4, 218.
But, unlike the nursing homes at issue here, the aggrieved mine
operator apparently had the option of complying and then bringing a
judicial challenge. See
id., at 221 (SCALIA, J., concurring
in part and concurring in judgment).
50
THOMAS, J., dissenting
to the public, 42 U. S. C. § 1395i-3(g)(5)(A), and posted on the
Health Care Finance Authority's Internet website, Reply Brief for
Petitioners 20, n. 20.13 Such negative publicity, which occurs
before the nursing home may avail itself of administrative or
judicial review via § 1395cc(h), is likely to result in substantial
reputational harm. See
Gardner v.
Toilet Goods Assn.,
Inc., 387 U. S.
167, 172 (1967) ("Respondents note the importance of public
good will in their industry, and not without reason fear the
disastrous impact of an announcement that their cosmetics have been
seized as 'adulterated' ").
I recount these allegations of hardship to respondent's members
not because they inform any case-by-case application of the
presumption in favor of preenforcement review, but rather because
such concerns motivate the presumption in a general sense. A
case-by-case inquiry into hardship is accommodated instead by
ripeness doctrine, which "evaluate[s] both the fitness of the
issues for judicial decision and the
hardship to the parties of
withholding court consideration." Abbott Laboratories, 387 U.
S., at 149 (emphasis added). I read our cases to establish just
this sort of analysis: (1) in light of the presumption, construe an
ambiguous statute in favor of preenforcement review; (2) apply
ripeness doctrine to determine whether the suit should be
entertained. Thus, in
Abbott Laboratories and its two
companion cases, we construed an ambiguous statute to permit
preenforcement review, see
id., at 148;
Gardner v.
Toilet Goods Assn., supra, at 168;
Toilet Goods Assn.,
Inc. v.
Gardner, 387 U. S. 158, 160
(1967), but we then proceeded to hold that only the suits in the
first two of these cases were
13 While the Secretary represents, Reply Brief for Petitioners
20, n. 20, and the Court accepts,
ante, at 22, that a
deficient nursing home may post a response on the website,
respondent's
amici American Health Care Association et al.
assert that the website does not accommodate provider comments, but
only lists the date a facility has corrected a deficiency, Brief
for American Health Care Association et al. as
Amici Curiae
18.
51
ripe,
Abbott Laboratories, supra, at 156;
Gardner
v.
Toilet Goods Assn., supra, at 170;
Toilet Goods
Assn. v.
Gardner, supra, at 160-161. See also
Reno v.
Catholic Social Services, Inc., 509 U. S. 43, 56-66 (1993)
(similar). In line with this mode of analysis, the court below,
after concluding that the Medicare Act does not preclude general
federalquestion jurisdiction over a preenforcement challenge to the
Secretary's regulations, held that respondent's AP A
notice-and-comment challenge was ripe but that its constitutional
vagueness claim was not. 143 F. 3d, at 1076-1077.
While I express no view on the proper application of ripeness
doctrine to respondent's claims,14 I am confident that this method
of analysis enjoys substantially more support in our cases than
does the majority's approach, which prescribes a case-by-case
hardship inquiry at the threshold stage of determining whether
preenforcement review has been precluded by statute. See
ante, at 20 (holding that § 1395ii does not incorporate §
405(h) where the aggrieved party "can obtain no review at all
unless it can obtain judicial review in a § 1331 action"). While
the majority's variation would be harmless if its hardship test
were no more stringent than the hardship prong of ordinary ripeness
doctrine, I presume its test is more exacting-otherwise the
majority opinion is no more than a well-disguised application of
ripeness doctrine to the facts of this case.15 At bottom, then, the
majority superimposes a more burdensome hardship test on ordinary
ripeness doctrine for aggrieved persons who
14 The Secretary did not seek review of the Court of Appeals'
holding that respondent's APA notice-and-comment challenge is ripe,
Pet. for Cert. I, and this Court denied respondent's cross-petition
for certiorari seeking review of the Court of Appeals' holding that
respondent's vagueness challenge is not ripe, 526 U. S. 1067
(1999).
15 The majority acknowledges that its hardship test is more
burdensome than the hardship prong of ripeness doctrine in at least
one respect. We are told that the relevant hardship is not that
endured by the "individual plaintiff," but rather that confronted
by the "class" of persons similarly situated to the individual
plaintiff.
Ante, at 22-23; see
supra, at 42-43.
52
THOMAS, J., dissenting
seek to bring a preenforcement challenge to the Secretary's
regulations under the Medicare Act.16
***
Instead, I would hold that § 1395ii, as interpreted by
Michigan Academy, does not in this case incorporate §
405(h)'s preclusion of federal-question jurisdiction, especially in
light of the presumption in favor of preenforcement review. I
respectfully dissent.
16 The majority betrays its misunderstanding of the relationship
between the presumption in favor of preenforcement review and
ripeness doctrine when it says that "any ... presumption [in favor
of preenforcement review] must be far weaker than a presumption
against preclusion of all review in light of the traditional
ripeness doctrine, which often requires initial presentation of a
claim to an agency."
Ante, at 1920. I do not dispute that
respondent must demonstrate that its claims are ripe before the
District Court may entertain respondent's preenforcement challenge.
My point is only that respondent should be
permitted to make
its ripeness argument and to have that argument assessed according
to traditional ripeness doctrine, rather than facing statutory
preclusion of review by (inevitably) failing the majority's
"super-hardship" test. As I explained,
supra, at 50, our
cases establish a two-step analysis: (1) in light of the
presumption in favor of preenforcement review, construe an
ambiguous statute to allow pre enforcement review; (2) apply
ripeness doctrine to determine whether the suit should be
entertained.
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