Pushkin v. Califano, No. 77-2401

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore WISDOM, CLARK and FAY; CHARLES CLARK
Citation600 F.2d 486
Docket NumberNo. 77-2401
Decision Date08 August 1979
PartiesDr. Emanuel PUSHKIN et al., Plaintiffs-Appellants, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant-Appellee.

Page 486

600 F.2d 486
Dr. Emanuel PUSHKIN et al., Plaintiffs-Appellants,
v.
Joseph A. CALIFANO, Jr., Secretary of Health, Education and
Welfare, Defendant-Appellee.
No. 77-2401.
United States Court of Appeals,
Fifth Circuit.
Aug. 8, 1979.

Page 487

Bruce S. Rogow, Miami, Fla., for plaintiffs-appellants.

Robert E. Kopp, Alfred Mollin, Dept. of Justice, Washington, D. C., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before WISDOM, CLARK and FAY, Circuit Judges.

CHARLES CLARK, Circuit Judge:

This appeal considers the limitation by Congress of federal court jurisdiction over questions arising under the Medicare Act, 42 U.S.C.A. § 1395, Et seq. Appellants challenge the constitutionality of the statute defining reimbursable services under Part B of the Medicare Act and the validity of a regulation promulgated thereunder. Because the constitutional challenge to the statute is insubstantial and a forum is available in which the attack on the regulation can be adjudicated, it is not necessary to decide whether Congress could totally preclude judicial review of its legislative actions. 1 The appeal is dismissed for lack of jurisdiction.

I.

Several licensed optometrists initiated this action in federal district court for injunctive and declaratory relief in a constitutional challenge to that part of the Medicare Act, 42 U.S.C.A. § 1395x(r), which for most purposes excludes doctors of optometry from the definition of "physician" under the Medicare Part B Health Insurance Program. Part B of the Medicare Act, 42 U.S.C.A. § 1395j-1395w, is a voluntary health insurance program in which a qualifying individual who obtains a covered service can either pay for the service and request reimbursement or assign the right of reimbursement to the person providing the service. 2 Functions covered by Part B are limited to certain "medical and other health services," 42 U.S.C.A. § 1395k, which include "physician's services," 42 U.S.C.A. § 1395x(s)(1); that is, professional services performed by "physicians." 42 U.S.C.A. § 1395x(q).

Page 488

Section 1395x(r), the section of Part B of the Act challenged by plaintiffs, defines the term "physician" in certain enumerated categories including

(1) a (licensed) doctor of medicine or osteopathy . . ., (4) a doctor of optometry who is legally authorized to practice optometry by the State in which he performs such function, but only with respect to establishing the necessity for prosthetic lenses.

To the extent the statutory definition of "physicians" limits its inclusion of the plaintiff-optometrists, their patients cannot be reimbursed or assign the right of reimbursement for optometric services. Plaintiffs argue that doctors of medicine or osteopathy, whose qualifying patients are always entitled to reimbursement, may perform many of the identical diagnostic services performed by doctors of optometry. Yet unless the optometric services are for the purpose of establishing the necessity for prosthetic lenses, their patients cannot receive Part B reimbursement. This overlap of services, plaintiffs say, makes the statutory classification excluding their patients from the benefits of the Act arbitrary, irrational, and not justified by any governmental interest. Thus, they claim that § 1395x(r) violates their right to equal protection under the fifth amendment.

Alternatively, plaintiffs challenge the validity of a regulation, 42 C.F.R. § 405.232c, promulgated by the Secretary to implement § 1395x(r), which states:

The prescription or order of a doctor of optometry will be accepted as evidence of the medical need for prosthetic lenses. However, optometric examinations for any purpose are not covered.

They ask that the regulation be declared void because it cannot be reconciled with the definition of "physician" in § 1395x(r)(4) as written.

Jurisdiction was invoked under 28 U.S.C.A. §§ 1331(a), 1346(a)(2), and 1361. The district court dismissed the action for failure to exhaust available administrative remedies.

II.

Congress enacted the Medicare Act as part of the Social Security Act, incorporating the latter Act's limitation on federal court involvement. Section 205(h) of the Social Security Act, expressly incorporated into the Medicare Act by 42 U.S.C.A. § 1395ii, provides:

The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 41 (presently including §§ 1331 and 1346) of Title 28 to recover on any claim arising under this subchapter.

In Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), the Supreme Court analyzed the language of § 205(h) to determine how it affected the Court's jurisdiction over a constitutional challenge to a provision of the Social Security Act classifying eligible beneficiaries. It found that the third sentence of § 205(h) totally "preclude(d) resort to federal-question jurisdiction for the adjudication of appellees' constitutional (challenges)." 422 U.S. at 761, 95 S.Ct. at 2464-65. However, the Court was not faced with a situation in which absolutely no judicial consideration of the constitutional issue was available, because a separate section of the Social Security Act, 42 U.S.C.A. § 405(g), contains specific procedures for raising claims under the Act, culminating with judicial review in a federal district court.

The Medicare Act has no provision comparable to § 405(g) setting forth the precise avenues of review in a case such as this. 3 Yet, absence of a statutory mechanism permitting the judicial scrutiny of claims under the Medicare Act did not force this court in

Page 489

Dr. John T. MacDonald Foundation v. Califano, 571 F.2d 328 (5th Cir.) (en banc), Cert. denied, 439 U.S. 893, 99 S.Ct. 250, 58 L.Ed.2d 238 (1978), to read the third sentence of § 405(h) any less broadly than Salfi did in the context of the Social Security Act. In MacDonald Foundation this court was presented with a constitutional challenge to the Secretary's decision to reduce reimbursable costs under Part A of the Medicare Act in certain circumstances. 4 The en banc court, relying on Salfi, concluded that § 405(h) "precludes all review of the Secretary's decisions by federal district courts brought under (28 U.S.C.A.) § 1331," 571 F.2d at 331, but added that judicial review of the constitutional question before it was not thereby totally barred. It pointed out that the Court of Claims in Whitecliff, Inc. v. United States, 536 F.2d 347, 210 Ct.Cl. 53 (1976), Cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977), had previously asserted jurisdiction under 28 U.S.C.A. § 1491 to review constitutional and statutory claims against a decision by the Secretary despite § 405(h). Given the availability of such Court of Claims jurisdiction, this court found the absence of § 405(g) from the Medicare system an insufficient distinction between the two statutory schemes to merit an interpretation of § 405(h) different from Salfi.

Plaintiffs argue that MacDonald Foundation cannot control this case. They maintain that this court must take jurisdiction despite the congressional bar in § 405(h) because there is no alternate forum available in the Court of Claims or elsewhere to adjudicate their claims. We disagree.

III.

MacDonald Foundation controls the present appeal. The plaintiffs seek declaratory and injunctive relief on both the statutory and regulatory claims under the general jurisdictional grants of 28 U.S.C.A. §§ 1331(a) and 1346(a) (2). 5 The general grant of jurisdiction of the Court of Claims, 28 U.S.C.A. § 1491, authorizes that court to entertain damage actions against the United States. By that court's own determination, § 405(h) does not affect its authority under § 1491 to review Medicare disputes, in the absence of statutory review procedures, "at least so far as to ensure compliance with statutory and constitutional provisions." Whitecliff, Inc. v. United States, supra, 536 F.2d at 351. 6 Therefore, to the

Page 490

extent that plaintiffs' claims are cognizable under § 1491, MacDonald Foundation governs this appeal.

Section 1491 does not authorize the Court of Claims to grant the declaratory relief sought in this suit. United States v. Testan, ...

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12 practice notes
  • Starnes v. Schweiker, No. 82-1543
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 16 Agosto 1983
    ...be assailed on constitutional grounds in either a district court, Kechijian v. Califano, 621 F.2d 1 (1 Cir.1980); Pushkin v. Califano, 600 F.2d 486 (5 Cir.1979); Cervoni v. Secretary of Health, Ed. & Welfare, 581 F.2d 1010 (1 Cir.1978); St. Louis Univ. v. Blue Cross Hosp. Serv., 537 F.2d 28......
  • Bussey v. Harris, No. 77-3224
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 13 Febrero 1980
    ...statutory procedures for judicial review, 42 U.S.C. § 405(g), the Medicare Act does not incorporate those procedures, Pushkin v. Califano, 600 F.2d 486, 488 & n.3 (5th Cir. 1979); Dr. John T. MacDonald Foundation, Inc. v. Califano, 571 F.2d at 330-32. 5 This does not create any due process ......
  • Fox v. Harris, Civ. A. No. 79-2117.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 25 Abril 1980
    ...raises no constitutional difficulties so long as another judicial forum to hear plaintiff's claims is available. See Pushkin v. Califano, 600 F.2d 486, 490 (5th Cir. 1979). Even if the complaint is presumed to have raised genuine constitutional questions, section 205(h) and the relevant pro......
  • Ledet v. Fischer, Civ. A. No. 82-16.
    • United States
    • United States District Courts. 5th Circuit. Middle District of Louisiana
    • 18 Agosto 1982
    ...indigent women simply because it had made the policy choice to pay the expenses incident to normal childbirth. See Pushkin v. Califano, 600 F.2d 486 (5th Cir....
  • Request a trial to view additional results
12 cases
  • Starnes v. Schweiker, No. 82-1543
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 16 Agosto 1983
    ...be assailed on constitutional grounds in either a district court, Kechijian v. Califano, 621 F.2d 1 (1 Cir.1980); Pushkin v. Califano, 600 F.2d 486 (5 Cir.1979); Cervoni v. Secretary of Health, Ed. & Welfare, 581 F.2d 1010 (1 Cir.1978); St. Louis Univ. v. Blue Cross Hosp. Serv., 537 F.2d 28......
  • Bussey v. Harris, No. 77-3224
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 13 Febrero 1980
    ...statutory procedures for judicial review, 42 U.S.C. § 405(g), the Medicare Act does not incorporate those procedures, Pushkin v. Califano, 600 F.2d 486, 488 & n.3 (5th Cir. 1979); Dr. John T. MacDonald Foundation, Inc. v. Califano, 571 F.2d at 330-32. 5 This does not create any due process ......
  • Fox v. Harris, Civ. A. No. 79-2117.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 25 Abril 1980
    ...raises no constitutional difficulties so long as another judicial forum to hear plaintiff's claims is available. See Pushkin v. Califano, 600 F.2d 486, 490 (5th Cir. 1979). Even if the complaint is presumed to have raised genuine constitutional questions, section 205(h) and the relevant pro......
  • Ledet v. Fischer, Civ. A. No. 82-16.
    • United States
    • United States District Courts. 5th Circuit. Middle District of Louisiana
    • 18 Agosto 1982
    ...indigent women simply because it had made the policy choice to pay the expenses incident to normal childbirth. See Pushkin v. Califano, 600 F.2d 486 (5th Cir....
  • Request a trial to view additional results

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