Paul Fischer v. Donald Berwick , 503 F. App'x 210 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1713
PAUL FISCHER, M.D.; ROBERT CLARK, D.O.; LESLIE POLLARD,
M.D.,
Plaintiffs – Appellants,
and
EDWIN SCOTT; ROBERT SUYKERBUYK, M.D.; REBECCA TALLEY, M.D.,
Plaintiffs,
v.
DONALD BERWICK, M.D., in his official capacity as
Administrator, Centers for Medicare & Medicaid Services;
KATHLEEN SEBELIUS, in her Official Capacity as Secretary of
the United States Department of Health and Human Services,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:11-cv-02191-WMN)
Submitted: December 14, 2012 Decided: January 7, 2013
Before NIEMEYER, MOTZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Timothy F. Maloney, Veronica B. Nannis, Matthew M. Bryant,
JOSEPH, GREENWALD & LAAKE, P.A., Greenbelt, Maryland, for
Appellants. William B. Schultz, U.S. DEPARTMENT OF JUSTICE,
Washington, D.C.; Robert W. Balderston, Lawrence J. Harder, Amy
Weiser, DEPARTMENT OF HEALTH & HUMAN SERVICES, Washington, D.C.;
Stuart F. Delery, Acting Assistant Attorney General, Mark B.
Stern, Alisa B. Klein, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Appellants, six primary care physicians, brought suit
against Donald Berwick, Administrator of the Centers for
Medicare and Medicaid Services (“CMS”), and Kathleen Sebelius,
Secretary of the United States Department of Health and Human
Services (“HHS”), challenging the method by which CMS and HHS
determine the value of reimbursements paid to physicians for
various procedures under the Medicare Physician Fee Schedule
(“PFS”). Specifically, Appellants challenged CMS’s and HHS’s
overreliance on the American Medical Association’s Relative
Value Update Committee (“AMA RUC”)’s recommendations in the
process of determining Relative Value Units (“RVUs”), which
influence the PFS. The district court dismissed the suit for
lack of subject matter jurisdiction, finding that Appellants’
claims were barred under 42 U.S.C. § 1395w-4(i)(1)(B) (2006),
which prohibits judicial review of the determination of RVUs.
Appellants now contend that the district court erred in: (1)
holding that § 1395w-4(i)(1)(B) bars judicial review of their
claims; (2) failing to conduct a cursory review of the merits
pursuant to Leedom v. Kyne, 358 U.S. 184 (1958); (3) holding
that their due process claim was not exempt from § 1395w-
4(i)(1)(B)’s bar and failing to consider their delegation clause
claim in this context; and (4) dismissing their Federal Advisory
Committee Act (“FACA”) claims. Finding no error, we affirm.
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Appellants first contend that the district court erred
in holding their claims barred by § 1395w-4(i)(1)(B). We review
a district court’s dismissal for lack of subject matter
jurisdiction de novo. Etape v. Chertoff, 497 F.3d 379, 382 (4th
Cir. 2007). There exists a strong presumption that Congress
intends judicial review of administrative action, which can only
be rebutted by clear and convincing evidence of contrary
legislative intent. Am. Soc’y of Cataract & Refractive Surgery
v. Thompson, 279 F.3d 447, 452 (7th Cir. 2002). Contrary
legislative intent may be proved by specific language or
legislative history, or by the details of the legislative
scheme. See id.Section 1395w-4(i)(1)(B) provides: “There shall be no
administrative or judicial review under section 1395ff of this
title or otherwise of . . . the determination of relative values
and relative value units under subsection (c) of this section.”
This provision is a clear and explicit indication of legislative
intent to prohibit judicial review of claims challenging the
determination of RVUs. Accordingly, the issue is whether
Appellants’ claims challenge the determination of RVUs.
We find that Appellants’ claims challenge the
determination of RVUs, and therefore are barred by § 1395w-
4(i)(1)(B). Section 1395w-4(i)(1)(B) bars challenges not only
to the ultimate determinations of RVUs, but also to the process
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of making those determinations. See Thompson, 279 F.3d at 452-
54. Appellants challenge CMS’s and HHS’s reliance on the AMA
RUC’s recommendations in the process of determining RVUs. This
is a challenge to the determination of RVUs, not some policy
ancillary to that determination. See id. at 453 (describing
ancillary policies as those applied only after relative values
are determined, and exempting ancillary policies from § 1395w-
4(i)(1)(B)’s bar). Accordingly, the district court properly
held Appellants’ claims barred under § 1395w-4(i)(1)(B).
Appellants next contend that even if § 1395w-
4(i)(1)(B) bars review of their claims, the district court erred
in failing to conduct a cursory review of the merits pursuant
to Leedom v. Kyne, 358 U.S. 184 (1958). Even where a statute
expressly bars judicial review of agency action, Kyne provides
an exception for claims that an agency exceeded its delegated
powers, by acting contrary to a specific prohibition. Kyne, 358
U.S. at 188; Hanaeur v. Reich, 82 F.3d 1304, 1307 (4th Cir.
1996). Under this exception, the court must conduct a cursory
review of the merits notwithstanding the statutory
bar. Thompson, 279 F.3d at 456; Hanaeur, 82 F.3d at 1309. But
even if the exception applies, the district court will not have
jurisdiction over the case unless the cursory review reveals
that the agency violated a clear statutory
mandate. See Hanaeur, 82 F.3d at 1309.
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Appellants have waived this argument by failing to
raise it in the district court. See Muth v. United States, 1
F.3d 246, 250 (4th Cir. 1993). In any case, the argument lacks
merit because there is no violation of a clear statutory
mandate. See Hanaeur, 82 F.3d at 1309. Appellants point to no
statutory provision prohibiting reliance on the AMA RUC’s
recommendations, because no such provision exists.
Appellants next contend that the district court erred
in finding that § 1395w-4(i)(1)(B) would not violate their due
process rights and in failing to address whether the bar would
violate the delegation clause. Another exception to the
statutory bar on judicial review exists where the bar would be
unconstitutional. See Thompson, 279 F.3d at 454. With respect
to the due process claim, the district court correctly
determined that Appellants have no legitimate property interest
in having RVUs determined in a particular manner, as opposed to
being reimbursed at the set rate for services actually
rendered. See id. at 455. It therefore properly refused to
except that claim from the statutory bar. With respect to the
delegation clause claim, while the district court did not
separately address this claim in the context of the
unconstitutionality exception, Appellants waived this issue by
failing to raise it below. In any case, any error on the part
of the district court was harmless. Because Appellants’
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“delegation clause” claim is in reality based entirely on
statute—namely, 42 U.S.C. § 1395w-4(c)(2) (2006), which gives
the Secretary the power to determine RVUs—Appellants have no
right to judicial review. See Am. Soc’y of Dermatology v.
Shalala, 962 F. Supp. 141, 146 & n.3 (D.D.C. 1996) (refusing to
review plaintiffs’ constitutional arguments, including one based
on “nondelegation”); see also § 1395w-4(i)(1)(B) (barring
judicial review of the determination of RVUs “under subsection
(c) of this section”). Moreover, the argument is unpersuasive,
as the delegation clause is not implicated when a private entity
acts in an advisory role. See Pittston Co. v. United States,
368 F.3d 385, 395 (4th Cir. 2004).
Finally, Appellants contend that the district court
erred in dismissing as unreviewable counts one, four, and six of
their complaint. These counts allege that the AMA RUC is a de
facto federal advisory committee and that it violated the rules
of FACA by failing to open its meetings and records to the
public. Appellants contend that the district court erred in
dismissing these counts because claims brought under FACA are
not subject to § 1395w-4(i)(1)(B)’s bar on judicial
review. See Dermatology, 962 F. Supp. at 146 (“With respect to
plaintiffs’ FACA claims, 42 U.S.C. § 1395w-4(i)(1) does not
deprive the Court of jurisdiction.”). Assuming without deciding
that Appellants’ FACA claims are reviewable, these claims fail
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in any event because the AMA RUC is not an advisory committee
subject to FACA. See 5 U.S.C. app. 2 § 3 (2006) (defining an
“advisory committee” as a group established or utilized by an
agency); Dermatology, 962 F. Supp. at 147 (holding that the AMA
RUC was not subject to FACA because it was not established or
utilized by CMS).
Accordingly, we affirm the district court’s order. We
dispense with oral arguments because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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