Opinion · Court of Appeals for the Fifth Circuit

Alabama Hospital Ass'n v. Califano

587 F.2d 762

Type
Opinion
Court
Court of Appeals for the Fifth Circuit
Jurisdiction
Federal
Date
1979-01-12
Topic
general

PER CURIAM: Alabama Hospital Association, an organization representing 140 Alabama hospitals, and the Tallapoosa County Hospital Board, as representatives of all private proprietary nonprofit and nonfederal governmental hospitals located within Alabama, sued the Secretary of Health, Education and Welfare (HEW) and Blue Cross and Blue Shield of Alabama for alleged violations of the Due Process clause of the Fifth Amendment. The lawsuit arose out of HEW’s recoupment of reimbursement funds paid to provider hospitals for medical services that Blue Cross, plaintiffs’ fiscal intermediary, unilaterally determined were unnecessary. The plaintiffs contend that they were constitutionally entitled to a hearing at some point during or after the recoupment process. The district court agreed. Jurisdiction to hear the case was based on 5 U.S.C. §§ 701-706 and 28 U.S.C. § 1331(a).

Citator

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Authority status
pending
Cited by
5 opinions
ALABAMA HOSPITAL ASS'N v. CALIFANO,587 F.2d 762(5th Cir. 1979)
ALABAMA HOSPITAL ASSOCIATION, A NONPROFIT CORPORATION, ET AL.,
PLAINTIFFS-APPELLEES CROSS-APPELLANTS, v. JOSEPH CALIFANO, JR., SECRETARY
OF HEALTH, EDUCATION AND WELFARE OF THE UNITED STATES, ET AL.,
DEFENDANTS-APPELLANTS CROSS-APPELLEES.
No. 76-4076.
United States Court of Appeals, Fifth Circuit.
January 12, 1979.
As Amended February 26, 1979.
Page 763
Ira DeMent, U.S. Atty, Kenneth E. Vines, Asst, U.S. Atty., Montgomery, Ala., William Kanter, Atty, Dept. of Justice, App. Section, Civil Div., Washington, D.C., John M. Rogers, Atty, U. of Kentucky-College of Law, Lexington, Ky., under special assignment, Barbara Allen Babcock, Asst, Atty, Gen., Washington, D.C., Randolph W. Gaines, Chief of Litigation, Social Security Div., Steven L. Jones, Atty, Dept., of H. E. W., Baltimore, Md. for defendants-appellants, cross-appellees.

M. R. Nachman, Jr., Montgomery, Ala., John P. Oliver, II, Dadeville, Ala., for plaintiffs-appellees, cross-appellants.
Appeals from the United States District Court for the Middle District of Alabama.
Before WISDOM, GODBOLD and TJOFLAT, Circuit Judges.
PER CURIAM:
[1] Alabama Hospital Association, an organization representing 140 Alabama hospitals, and the Tallapoosa County Hospital Board, as representatives of all private proprietary nonprofit and nonfederal governmental hospitals located within Alabama, sued the Secretary of Health, Education and Welfare (HEW) and Blue Cross and Blue Shield of Alabama for alleged violations of the Due process clause of the Fifth Amendment. The lawsuit arose out of HEW's recoupment of reimbursement funds paid to provider hospitals for medical services that Blue Cross, plaintiffs' fiscal intermediary, unilaterally determined were unnecessary. The plaintiffs contend that they were constitutionally entitled to a hearing at some point during or after the recoupment process. The district court agreed. Jurisdiction to hear the case was bound on5 U.S.C. §§ 701-706and28 U.S.C. § 1331(a). We conclude that the district court acted without subject matter jurisdiction and we vacate its decision.

[2] There was clearly no jurisdiction under5 U.S.C. §§ 701-706, better known as § 10 of the Administrative Procedure Act.Califano v. Sanders,430 U.S. 99,197,97 S.Ct. 980,985,51 L.Ed.2d 192,200-01(1977). Nor under this court's decisions inDr. John T. MacDonald Foundation v. Califano,571 F.2d 328(CA5) (en banc),cert. denied,___ U.S. ___,99 S.Ct. 250,58 L.Ed.2d 238(1978), andAmerican Association of Councils ofMedical Staffs v. Califano,575 F.2d 1367(CA5),pet, for cert,filed,47 U.S.L.W. 3267 (U.S. Oct. 3, 1978), was there jurisdiction under28 U.S.C. § 1331(a).

[3]MacDonaldinvolved a challenge by a provider of Medicare services to HEW's method of determining reimbursable cost. On the basis ofWeinberger v. Salfi,422 U.S. 749,95 S.Ct. 2457,45 L.Ed.2d 522(1975), this court concluded that the incorporation of42 U.S.C. § 405(h) into the Medicare Act through42 U.S.C. § 1395ii, eliminated subject matter jurisdiction under28 U.S.C. § 1331(a) to review the validity of HEW's reimbursement procedures. That decision controls this case. The plaintiffs argue thatMacDonaldcan be distinguished because § 405(h)'s bar to jurisdiction applies only to appeals from findings and decisions of the Secretary, and here the plaintiffs sued because HEW held no hearing. But this court decide inAmerican Association ofCouncils of Medical Staffs v. Califano, supra,at 1372, that the lack of an "administrative hearing or decision . . . does not serve as a relevant distinction fromMacDonald."Id.at 1372;accord, Trinity Memorial Hospital v. Associated HospitalServices,570 F.2d 660. 667 (CA7, 1977).

[4] We have held that Medicare plaintiffs whose claims are barred by § 405(h) may go to the Court of Claims.American Associationof Councils of Medical Staffs v. Califano, supra,at 1373;Dr.John T. MacDonald Foundation v. Califano, supraat 332.1The Court of Claims does not have the power to grant the plaintiffs' request for declaratory and injunctive relief, but itPage 764can decide the issue raised by the plaintiffs because they have requested damages.See American Association of Councils ofMedical Staffs v. Califano, supra,at 1373.

[5] Pursuant to28 U.S.C. § 1406(c), the appeal is DISMISSED and the cause is TRANSFERRED to the Court of Claims.See Dr. John T.MacDonald Foundation v. Califano,571 F.2d 328(CA5) (en banc),cert. denied,___ U.S. ___,99 S.Ct. 250,58 L.Ed.2d 538(1978).
  1. The Court of Claims held inWhitecliff, Inc. v. U.S.536 F.2d 347(Ct.Cl. 1976),cert. denied,430 U.S. 969,97 S.Ct. 1652,52 L.Ed.2d 361(1971), that its jurisdiction was not affected by § 405(h). ↩