Michigan Academy of Family Physicians v. Blue Cross and Blue Shield of Michigan, No. 81-1202

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBefore JONES, Circuit Judge, PECK and BROWN
Citation757 F.2d 91
Parties, 9 Soc.Sec.Rep.Ser. 118, Medicare&Medicaid Gu 34,542 MICHIGAN ACADEMY OF FAMILY PHYSICIANS, et al., Plaintiffs-Appellees, v. BLUE CROSS AND BLUE SHIELD OF MICHIGAN and Richard S. Schweiker, Secretary of Health and Human Services, Defendants-Appellants.
Decision Date19 March 1985
Docket NumberNo. 81-1202

Page 91

757 F.2d 91
53 USLW 2486, 9 Soc.Sec.Rep.Ser. 118,
Medicare&Medicaid Gu 34,542
MICHIGAN ACADEMY OF FAMILY PHYSICIANS, et al., Plaintiffs-Appellees,
v.
BLUE CROSS AND BLUE SHIELD OF MICHIGAN and Richard S.
Schweiker, Secretary of Health and Human Services,
Defendants-Appellants.
No. 81-1202.
United States Court of Appeals,
Sixth Circuit.
Decided March 19, 1985.

Michele Coleman Mayes, Asst. U.S. Atty., Leonard R. Gilman, U.S. Atty., Detroit, Mich., Thomas Stuber, argued, Dept. of Health & Human Services, Baltimore, Md., for defendants-appellants.

Alan Gilchrist, argued, Frimet, Bellamy & Gilchrist, Detroit, Mich., for plaintiffs-appellees.

Steven B. Epstein, Stuart M. Gerson, Washington, D.C., for amicus curiae American Soc. of Internal Medicine.

Before JONES, Circuit Judge, PECK and BROWN, Senior Circuit Judges.

ORDER

I. Prior Decision and Present Posture of the Case.

In our initial opinion herein, 728 F.2d 326 (6th Cir.), vacated and remanded, --- U.S.

Page 92

----, 105 S.Ct. 65, 83 L.Ed.2d 16 (1984), we held that a regulation promulgated by the Secretary of Health and Human Services ("Secretary"), 42 C.F.R. Sec. 405.504, violated the language of the Medicare Act as set forth at 42 U.S.C. Sec. 1395u(b)(3) (reimbursement if for "similar services"). In reaching this decision, we held that the district court (and this court) had jurisdiction to hear the challenge brought by the plaintiff, Michigan Academy. Our opinion stated that the challenge to the regulation was based on both statutory and constitutional grounds and was not simply "a challenge to an individual amount of reimbursement." 728 F.2d at 331. 1

Following consideration of the remand by the Supreme Court, we entered a similar order remanding the case to the district court for reconsideration in the light of Heckler v. Ringer, 466 U.S. ----, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984). 751 F.2d 809. Appellees thereupon petitioned for reconsideration of our remand order, and it is that petition, accompanied by extensive briefs, which is presently before us.

The only issue relevant on remand is that of jurisdiction. In the prior decision we held that federal question jurisdiction existed to hear the challenge under 28 U.S.C. Sec. 1331. As an initial point, we rejected the contention that 42 U.S.C. Sec. 1395ff, which authorizes administrative review of eligibility determinations under Part B of the Medicare Act, implicitly limited review in the federal courts. 2

We went on to hold that 42 U.S.C. Sec. 405(h), as incorporated in the Medicare Act by 42 U.S.C. Sec. 1395ii, did not specifically prohibit judicial review of a statutory or constitutional challenge to a regulation promulgated under the Medicare Act. 728 F.2d at 330-31. In reaching this decision we distinguished Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) (claims arising under Social Security Act can be reviewed only under Sec. 405(g) procedures) and Herzog v. Secretary, 686 F.2d 1154 (6th Cir.1982) (no judicial review for statutory challenges to amount of reimbursement under Part B). 728 F.2d at 331. The basis for the distinction was two-fold: (1) the challenge mustered by Michigan Academy involves not an amount of reimbursement but the promulgation of a regulation; and (2) a contrary decision would preclude any judicial review.

II. Heckler v. Ringer.

In Ringer, supra, the Supreme Court, construing Sec. 405(h) as incorporated in the Medicare Act, held that Sec. 405(g)--to the exclusion of 28 U.S.C. Sec. 1331 (federal question jurisdiction)--"is the sole avenue for judicial review for all 'claim(s) arising under' the Medicare Act." 466 U.S. at ----, 104 S.Ct. at 2021 (citing Salfi, 422 U.S. at 760-61, 95 S.Ct. at 2464-65). The court stated that the "claim arising under" language should be construed quite broadly as applying to claims in which "both the standing and the substantive basis for the presentation" of the claims is the Medicare Act. 466 U.S. at ---- - ----, 104 S.Ct. at 2021-2022 (noting that in Salfi a constitutional challenge to the statute had...

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10 practice notes
  • NATIONAL COM. TO PRESERVE SOCIAL SEC. v. Bowen, Civ. A. No. 88-0974.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 9 Marzo 1990
    ...This Court is persuaded by the Sixth Circuit's decision in Michigan Academy of Family Physicians v. Blue Cross & Blue Shield of Michigan, 757 F.2d 91 (6th Cir. 1985), aff'd sub nom. Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986). There pl......
  • Stieberger v. Heckler, No. 84 CIV 1302 (LBS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 19 Agosto 1985
    ...under the circumstances described above. Compare Michigan Academy of Family Physicians v. Blue Cross and Blue Shield of Michigan, 757 F.2d 91 (6th Cir.1985) (§ 1331 jurisdiction exists over Medicare providers' statutory challenge to Secretary's classification of certain family physicians se......
  • Bowen v. Michigan Academy of Family Physicians, No. 85-225
    • United States
    • United States Supreme Court
    • 9 Junio 1986
    ...determinations," not of substantial statutory and constitutional challenges to the Secretary's administration of Part B. Pp. 678-681. 757 F.2d 91 (CA6 1985) affirmed. STEVENS, J., delivered the opinion of the Court, in which all other Members joined, except REHNQUIST, J., who took no part i......
  • Whitney v. Heckler, No. 85-8129
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 22 Enero 1986
    ...'inextricably intertwined with,' claims for entitlement"); Michigan Academy of Family Physicians v. Blue Cross & Blue Shield of Michigan, 757 F.2d 91, 93-94 (6th Cir.1985) (holding that Heckler v. Ringer does not bar constitutional and statutory challenge to regulation promulgated by Secret......
  • Request a trial to view additional results
10 cases
  • NATIONAL COM. TO PRESERVE SOCIAL SEC. v. Bowen, Civ. A. No. 88-0974.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 9 Marzo 1990
    ...This Court is persuaded by the Sixth Circuit's decision in Michigan Academy of Family Physicians v. Blue Cross & Blue Shield of Michigan, 757 F.2d 91 (6th Cir. 1985), aff'd sub nom. Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986). There pl......
  • Stieberger v. Heckler, No. 84 CIV 1302 (LBS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 19 Agosto 1985
    ...under the circumstances described above. Compare Michigan Academy of Family Physicians v. Blue Cross and Blue Shield of Michigan, 757 F.2d 91 (6th Cir.1985) (§ 1331 jurisdiction exists over Medicare providers' statutory challenge to Secretary's classification of certain family physicians se......
  • Bowen v. Michigan Academy of Family Physicians, No. 85-225
    • United States
    • United States Supreme Court
    • 9 Junio 1986
    ...determinations," not of substantial statutory and constitutional challenges to the Secretary's administration of Part B. Pp. 678-681. 757 F.2d 91 (CA6 1985) affirmed. STEVENS, J., delivered the opinion of the Court, in which all other Members joined, except REHNQUIST, J., who took no part i......
  • Whitney v. Heckler, No. 85-8129
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 22 Enero 1986
    ...'inextricably intertwined with,' claims for entitlement"); Michigan Academy of Family Physicians v. Blue Cross & Blue Shield of Michigan, 757 F.2d 91, 93-94 (6th Cir.1985) (holding that Heckler v. Ringer does not bar constitutional and statutory challenge to regulation promulgated by Secret......
  • Request a trial to view additional results

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