Bartlett v. Bowen

• Citation: 816 F.2d 695,259 U.S.App.D.C. 391
• Decision Date: 31 July 1987
• Docket Number: No. 85-5233,85-5233
• Parties: , 55 USLW 2517, 17 Soc.Sec.Rep.Ser. 437, Medicare&Medicaid Gu 36,200 Mary BARTLETT, on Behalf of Josephine NEUMAN, Appellant, v. Otis R. BOWEN, Secretary, Department of Health and Human Services.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 695

816 F.2d 695

259 U.S.App.D.C. 391, 55 USLW 2517,

17 Soc.Sec.Rep.Ser. 437,

Medicare&Medicaid Gu 36,200

Mary BARTLETT, on Behalf of Josephine NEUMAN, Appellant, v. Otis R. BOWEN, Secretary, Department of Health and Human Services.

No. 85-5233.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 26, 1986.

Decided March 17, 1987.

As Amended March 17, 1987.

Rehearing En Banc Order of June 8, 1987, Vacated and Panel

Opinion Reinstated July 31, 1987.

Rehearing and Rehearing En Banc Denied July 31, 1987.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 82-552).

Stephen J. Del Guidice, Washington, D.C., for appellant.

Ronald S. Robins, Sp. Asst. U.S. Atty., a member of the bar of the Supreme Court of Florida, pro hac vice, by special leave of court, with whom Joseph E. diGenova, U.S. Atty., and Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before EDWARDS and BORK, Circuit Judges, and WRIGHT, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge EDWARDS and Senior Circuit Judge WRIGHT.

Dissenting opinion filed by Circuit Judge BORK.

HARRY T. EDWARDS, Circuit Judge, and J. SKELLY WRIGHT, Senior Circuit Judge:

Appellant Mary Bartlett, plaintiff below, brought suit in the District Court on behalf of her sister, the deceased Josephine Neuman. She challenged the constitutionality of Part A of the Medicare Act on the ground that its partial bar to payment of benefits burdened the free exercise of her sister's Christian Science faith. The District Court dismissed the complaint for lack of subject matter jurisdiction because the claim failed to meet the $1,000 amount in controversy required by the Medicare Act for judicial review of benefit decisions. On appeal, appellant argues that the jurisdictional provisions of the Medicare Act do not preclude judicial review of her constitutional claim. In the alternative, she maintains that these provisions deny her due process and equal protection of the law if they do bar review.

Upon careful review of the Medicare Act and its legislative history, and pursuant to the guidance given by the Supreme Court in Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974), we find that Congress did not intend to bar judicial review of constitutional challenges to the underlying Act. Because we find that Congress did not intend the provisions to preclude review of appellant's claim, we normally should have no need to reach her constitutional arguments. However, because the dissenting opinion has suggested that Congress may foreclose all judicial review of the constitutionality of a federal statute, we have addressed this issue. We believe that there would be a clear violation of due process if Congress did in fact preclude any opportunity for an aggrieved claimant to obtain judicial review of one of its enactments.

I. BACKGROUND

Josephine Neuman, a Christian Science practitioner, suffered a terminal illness and required skilled nursing care. In February, 1976, she entered Lynn House of the Potomac, a Christian Science facility, where she received such care. In May, 1976, during the same spell of illness, Neuman left Lynn House and entered the Washington Home for Incurables, a non-Christian Science facility, where she remained, except for a week's treatment at Georgetown University Hospital, until her death in July, 1978.

Before she died, Neuman claimed and received $377 in Medicare benefits for the post-hospital extended care provided by Lynn House under Part A of the Medicare Act. See 42 U.S.C. Sec. 1395x(y)(1) (1982). After Neuman's death, Mary Bartlett, executrix of Neuman's estate, filed a Medicare claim of $286 for the post-hospital extended care Neuman had received at the Washington Home. The Social Security Administration denied that claim initially and upon reconsideration relying on 42 U.S.C. Sec. 1395x(y)(2)(B) (1982), ¹ which bars payment of Part A benefits for extended care in a skilled nursing facility unaffiliated with Christian Science to anyone who has, during the same spell of illness, already received such benefits for extended care in a Christian Science skilled nursing facility. An administrative law judge ("ALJ") upheld the denial on appeal, and the Appeals Council of the Social Security Administration adopted the ALJ's decision as the final decision of the Secretary of Health and Human Services (the "Secretary").

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Bartlett does not dispute the Secretary's reading of the Medicare Act's provision. Her claim is that the Medicare Act's bar to payment penalizes Neuman's estate solely on account of Neuman's Christian Science faith in contravention of the free exercise clause of the First Amendment. The then-Secretary recognized that she had no authority to rule on constitutional challenges to the Act, ² and thus she denied Bartlett's claim without addressing the merits of her constitutional challenge.

Having exhausted her administrative remedies, Bartlett brought this action in the United States District Court for the District of Columbia in February, 1982. She reasserts her claim that the Christian Science provisions of the Medicare Act burden Neuman's right to free exercise of religion under the First Amendment and deny her equal protection of the law under the Fifth Amendment. Bartlett further contends that the provision defining "spell of illness" ³ also violates Neuman's right to equal protection and due process under the Fifth Amendment.

The Secretary moved to dismiss Bartlett's action for lack of subject matter jurisdiction based on two jurisdictional provisions of the Medicare Act, 42 U.S.C. Secs. 405(h) ⁴ and 1395ff(b)(2) (1982). ⁵ Section 405(h), incorporated from the Social Security Act into the Medicare Act by 42 U.S.C. Sec. 1395ii (1982), denies federal question and mandamus jurisdiction over any claim "arising under" the Medicare Act. Section 1395ff(b)(2) bars "judicial review" of any "determination" of "the amount of benefits under part A" of the Medicare Act that has become a "final decision" of the Secretary, if the "amount in controversy" is less than $1,000. The District Court initially denied the Secretary's motion because "[t]he legislative history [of Sec. 1395ff] is devoid of 'clear and convincing' evidence of a congressional purpose to preclude judicial review of substantial constitutional claims," and noted that "if plaintiff were precluded from all judicial review of her claim in this case, the most serious constitutional questions would be present." ⁶ The court held in the alternative that it had independent federal question jurisdiction over Bartlett's claim, notwithstanding Sec. 405(h). ⁷ After Heckler v. Ringer, 466 U.S. 602, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984), was decided, however, the Secretary renewed the motion to dismiss and the court granted it, finding the Supreme Court's opinion in that case to be conclusive on the jurisdictional issues. ⁸ On appeal, Bartlett claims that Secs. 405(h) and 1395ff(b)(2) do not preclude judicial review of her claim and that if they do, they violate her rights to equal protection and due process of law.

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II. CONGRESS' INTENT IN Secs. 405(h) AND 1395ff(b)(2)

We begin with the general "presumption that Congress intends judicial review of administrative action." ⁹ It is axiomatic that this presumption can be overcome only by "clear and convincing evidence" that Congress intended to restrict access to judicial review. ¹⁰ Thus, the party seeking to read a legislative scheme to preclude review bears the burden of demonstrating Congress' intent to do so. ¹¹ This showing must be in accord not only with the words of the statute, but with its legislative history as well. ¹²

Courts have applied this "clear and convincing" standard in a particularly rigorous fashion when constitutional rights form the basis of the action over which judicial review is sought. As this court has explained:

When [a] plaintiff seeks to invoke the aid of the judicial branch on constitutional grounds, the Supreme Court and this court have both indicated that only the clearest evocation of congressional intent to proscribe judicial review of constitutional claims will suffice to overcome the presumption that the Congress would not wish to court the constitutional dangers inherent in denying a forum in which to argue that government action has injured interests that are protected by the Constitution. ¹³

Indeed, it has become something of a time-honored tradition for the Supreme Court and lower federal courts to find that Congress did not intend to preclude altogether judicial review of constitutional claims in light of the serious due process concerns that such preclusion would raise. ¹⁴ These cases recognize and seek to accommodate the venerable line of Supreme Court cases that casts doubt on the constitutionality of congressional preclusion of judicial review of constitutional claims. ¹⁵ This foreboding line of Supreme Court cases and the ominous warnings of scholarly commentators have moved modern courts to apply the "clear and convincing" standard to congressional enactments in part to avoid the constitutional morass, as we do here.

Applying this demanding standard with a careful eye on potential constitutional infirmity, we nonetheless find that Congress did intend to preclude independent federal jurisdiction over Bartlett's claim by enacting 42 U.S.C. Sec. 405(h) and incorporating it into the Medicare Act in Sec. 1395ii. Section 405(h) proscribes independent federal question or mandamus jurisdiction for any action "to recover on any claim arising under [the Medicare Act]." The Supreme Court's decisions in Salfi and Ringer clearly establish that a challenge to the constitutionality of the Act is a claim that "arises under" the Act for the purposes of Sec. 405(h). As the Court explained in Salfi:

It would, of course, be...