The opinion of the court was delivered by: Shadur, Senior District Judge.
Five physicians' associations ("Associations") have sued United
States Department of Health and Human Services Secretary Donna
Shalala ("Secretary") for declaratory and injunctive relief,
describing their action this way in Complaint ¶ 1 (part of the
section captioned "NATURE OF THE ACTION"):
Earlier this month Secretary moved for dismissal of the action on
several grounds, most fundamentally for the lack of subject
Although Associations then proceeded to file a Fed.R.Civ.P.
("Rule") 56 motion for summary judgment (with appropriate
supporting material called for by this District Court's LR 56.1)
rather than addressing Secretary's threshold motion, this Court
promptly gave Associations' counsel a "first things first" oral
directive requiring them to respond to the jurisdictional aspects
of Secretary's motion. On the very next day this Court, having
just received and read the current issue of United States Law
Week reporting the Supreme Court's decision in Shalala v.
Illinois Council on Long Term Care, Inc., ___ U.S. ___, 120
S.Ct. 1084, 146 L.Ed.2d 1 (2000), sent a letter to counsel for
both sides requesting a submission from each of them as to any
potential impact of that decision on the jurisdictional issues in
At this point both Associations' Memorandum in Opposition to
Defendant's Motion To Dismiss (cited "Mem.") and Secretary's
Supplemental Memorandum of Defendant in Support of Defendant's
Motion To Dismiss are in hand. Associations' filing has proved
totally unpersuasive, and hence Secretary's motion to dismiss is
indeed granted on jurisdictional grounds.
Here are the relevant portions of 42 U.S.C. § 1395w-4
(hereafter cited "Subsection ___" or "Subparagraph ___," omitting
the just-listed portion of the statutory citation):
In this section, with respect to a physicians'
(B) The term "practice expense component" means
the portion of the resources used in furnishing the
service that reflects the general categories of
expenses (such as office rent and wages of
personnel, but excluding malpractice expenses)
comprising practice expenses.
(i) The Secretary shall develop a methodology for
combining the work, practice expense, and malpractice
relative value units, determined under subparagraph
(C), for each service in a manner to produce a single
relative value for that service.
For purposes of this section for each physicians'
(ii) The Secretary shall determine a number of
practice expense relative value units for the
service . . . for years beginning with 1999 based
on the relative practice expense resources involved
in furnishing the service.
As those relevant quotations from the statute plainly reflect,
the cited determinations that the statute requires Secretary to
make — and to make pursuant to the methodology required to be
developed by Secretary — are precisely what Associations
themselves describe as the subject matter of their challenge in
Complaint ¶ 1 and in their Rule 56 motion. Associations do not
(of course) dispute the existence of the congressional directive
barring judicial review — instead they urge that their challenge
does not run afoul of that bar.
At the outset the principal straw man sought to be erected by
Associations can and should be blown away by the wind of
analysis. Mem. 4 urges the "strong presumption that Congress
intends judicial review of administrative action," quoting Bowen
v. Michigan Academy of Family Physicians, 476 U.S. 667, 670, 106
S.Ct. 2133, 90 L.Ed.2d 623 (1986). But that judicial presumption
comes into play only where there is a legitimate question as to
congressional intent — or to put the matter a bit differently, it
serves as a continuing reminder to Congress that if judicial
review is indeed to be barred, Congress had better be pretty
clear in saying so.
Most importantly, there is no room for employing that
presumptive approach where, as here, Congress has been so
explicit in stating a prohibition against judicial review —
federal courts are not, after all, superlegislatures entitled to
invoke a generalized presumption to trump an express "hands off"
direction from Congress. Nothing in Michigan Academy or in
McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 491-92, 111
S.Ct. 888, 112 L.Ed.2d 1005 (1991) (both sought to be called upon
by Associations, and both speaking in the same presumptive terms
in the absence of an express congressional mandate forbidding
judicial review) alters that proposition. Nor does Associations'
Mem. 4 n. 7 effort to rotate the Illinois Council decision
180°, so that it is claimed to look in the direction of
Association's position rather than Secretary's, carry any
conviction. Instead, Secretary's cross-submission as to Illinois
Council demonstrates (as does a reading of the opinion itself)
that if it has any impact here, it tends to support Secretary's
position and not that advanced by Associations.
When Associations do turn from their generalizations regarding
presumptions and actually get down to the specifics of this case,
they attempt to set up a dichotomy between what they call
nonreviewable matters ("six highly discretionary and infinitely
debatable decisions that impact the fee schedule" (Mem.6-7)) and
what they call reviewable matters ("non-discretionary decisions
as to what types of expenses must be considered in setting
relative values" (Mem.5)). By Associations' lights,
the "nonreviewable" category comprises only these specified items
(Mem. 7 n. 8):
These six decisions are the determinations of (1) the
adjusted historical payment basis, (2) relative
values, (3) relative value units, (4) conversion
factors, (5) geographic adjustment factors, and (6)
the coding system for each procedure. Section
But the obvious problem with that artificial construct is that
it would impermissibly rewrite the statute. Again Subsection
(i)(1)(B) expressly states that the congressional prohibition
against judicial review extends to the totality of "the
determination of relative values and relative value units under
subsection (c) of this section." And it simply will not do for
Associations to say "Oh, we're only challenging Secretary's
`decisions that must be made before the relative value and
relative value unit determinations'" (Mem. 8, emphasis in
After all, Associations' acknowledged quarrel is with
Secretary's determination of "actual expenses" in the course of
determining "practice expense relative value units" — and both
the "practice expense component" and "practice expense relative
value units" are specifically made part of the subject matter of
the selfsame Subsection (c) that is insulated from judicial
review by Subsection (i)(1)(B). If Associations' position were
accepted, the congressional mandate against court intervention
would be totally frustrated, because the opportunity for parties
such as Associations to launch in-court attacks on the individual
strands — the specific items — that are both integral to and
essential components of the congressionally-protected
determinations that Secretary must make would defeat her ability
to make the determinations themselves.
In short, just as was true in Illinois Council of a quite
different provision of the Medicare statutes, Congress' express
prohibition against judicial review bars federal question
jurisdiction here. That obviates any need to address Secretary's
alternative grounds for dismissal,*fn2 for (with rare
exceptions) subject matter jurisdiction should be dealt with
before any substantive considerations are looked at. By
definition Associations' Rule 56 motion is denied. This action is
dismissed for lack of subject matter jurisdiction.