Winter v. California Medical Review, Inc., No. 88-6499

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore NELSON, TROTT and RYMER; TROTT
Citation900 F.2d 1322
Docket NumberNo. 88-6499
Decision Date13 April 1990
Parties, Medicare&Medicaid Gu 39,017 Benjamin WINTER, M.D., Plaintiff-Appellant, v. CALIFORNIA MEDICAL REVIEW, INC.; Otis R. Bowen, Department of Health & Human Services, and Richard P. Kusserow, Defendants-Appellees.

Page 1322

900 F.2d 1322
29 Soc.Sec.Rep.Ser. 339, Medicare&Medicaid Gu 39,017
Benjamin WINTER, M.D., Plaintiff-Appellant,
v.
CALIFORNIA MEDICAL REVIEW, INC.; Otis R. Bowen, Department
of Health & Human Services, and Richard P.
Kusserow, Defendants-Appellees.
No. 88-6499.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Oct. 4, 1989.
Memorandum Filed Dec. 18, 1989.
Opinion Issued As Amended April 13, 1990.

Page 1323

David J. Weiss, Myra Staresina, Bonne, Jones, Bridges, Mueller, O'Keefe & Hunt, Joel R. Bennett, Los Angeles, Cal., for plaintiff-appellant.

Gregg A. Frampton, Asst. Regional Counsel, Dept. of Health & Human Services, and Barry J. London, Lesley B. Harris, Lillick & Charles, San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before NELSON, TROTT and RYMER, Circuit Judges.

ORDER

This case was originally decided by a memorandum disposition filed on December 18, 1989, 892 F.2d 85. The memorandum disposition has been amended and is now being published as an Opinion authored by Judge Trott pursuant to Ninth Circuit Rule 36-4.

OPINION

TROTT, Circuit Judge:

Appellant Dr. Benjamin Winter claims that appellee California Medical Review, Inc. (CMRI), a peer review organization

Page 1324

(PRO) under contract with the Secretary of Health and Human Services to review various medical services in the State of California, lacked jurisdiction to investigate him because the surgery he performed was not covered under the Medicare program. The district court dismissed appellant's request for injunctive and declaratory relief, finding that he had failed to exhaust his administrative remedies. We affirm on that basis and on the ground that the case is not ripe for judicial review.

FACTUAL and PROCEDURAL BACKGROUND

After conducting an investigation and review of patient records, CMRI made a preliminary determination that appellant had violated certain statutory obligations under 42 U.S.C. Sec. 1320c-5 (1982 & Supp. V 1987). 1 CMRI notified appellant of this determination and informed him that it was considering recommending sanctions to the Office of the Inspector General (OIG) of the Department of Health and Human Services ("the Department"). 2

After appellant received this notice, and after the hospital at which appellant worked received notice of an independent CMRI investigation against the hospital itself, the hospital suspended appellant's staff privileges. Appellant, citing a 1980 administrative ruling excluding the type of procedure which he performs from Medicare coverage, 3 claimed that CMRI had no jurisdiction to investigate him. His counsel apparently discussed this contention in a series of telephone calls with Department and CMRI attorneys and with representatives of the Health Care Financing Administration. Appellant's counsel apparently told at least some of these agency representatives that the conversations were "off the record." Appellant then filed suit in district court, seeking, inter alia, a preliminary injunction enjoining the Secretary from further investigation of the issues raised by CMRI. The district court granted appellees' motion to dismiss, finding that appellant failed to exhaust his administrative remedies.

ANALYSIS

This court has jurisdiction under 28 U.S.C. Sec. 1291 (1982). The district court's decision that appellant failed to meet statutory exhaustion requirements 4 is essentially a jurisdictional finding. The existence of subject matter jurisdiction presents a question of law reviewed de novo by this court. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421

Page 1325

(9th Cir.1989). The district court's factual findings on jurisdictional issues must be accepted unless clearly erroneous. Id.

A. Ripeness

The ripeness doctrine serves "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967). In considering whether a case is ripe for review, a court must evaluate "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Id. at 149, 87 S.Ct. at 1515; see also Standard Alaska Prod. Co. v. Schaible, 874 F.2d 624, 627 (9th Cir.1989), petition for cert. filed, No. 89-1375 (Feb. 27, 1990). "A claim is fit for decision if the issues raised are primarily legal, do not require further factual development, and the challenged action is final." Schaible, 874 F.2d at 627. In interpreting the finality requirement, a court "looks to whether the agency action represents the final administrative word to insure that judicial review will not interfere with the agency's decision-making process." State of Cal., Dep't of Educ. v. Bennett, 833 F.2d 827, 833 (9th Cir.1987).

To meet the hardship requirement, a litigant must show that withholding review would result in "direct and immediate" hardship and would entail more than possible financial loss. Id. at 833-34; see also Portland Police Ass'n v. City of Portland, 658 F.2d 1272, 1273 (9th Cir.1981).

Winter has satisfied neither the fitness nor the hardship requirement. CMRI's preliminary finding is clearly not the agency's "final administrative word," as CMRI may review appellant's...

To continue reading

Request your trial
33 practice notes
  • Cnty. of Santa Clara v. Trump, Case Nos. 17-cv-00574-WHO, 17-cv-00485-WHO.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 25 Abril 2017
    ...would result in direct and immediate hardship and would entail more than possible financial loss." Winter v. Cal. Med. Review, Inc. , 900 F.2d 1322, 1325 (9th Cir. 1989) (internal quotation marks omitted). The Government argues that the "uncertainties surrounding the implementation of Secti......
  • Bonnichsen v. U.S., Dept. of Army, Civil No. 96-1481-JE.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • 27 Junio 1997
    ...at least where those factual issues are inseparable from the merits of the case itself. Cf. Winter v. Calif. Medical Review Inc., 900 F.2d 1322, 1324 (9th Cir.1990) (the district court may hear evidence on jurisdictional questions and resolve factual disputes regarding that jurisdictional i......
  • Duval Ranching Co. v. Glickman, No. CV-N-95-38-ECR.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • 14 Marzo 1997
    ...decisions have been formalized and their effects concretely felt by challenging parties. Winter v. California Medical Review Board, Inc., 900 F.2d 1322, 1325 (9th Cir.1990). A court determines ripeness by examining Page 1443 fitness of the issues for judicial decision and the hardship to th......
  • Del Puerto Water Dist. v. U.S. Bureau of Reclamat., No. CIVF025934OWWDLB.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 13 Mayo 2003
    ...(9th Cir.1990) cert. denied, 498 U.S. 1067, 111 S.Ct. 784, 112 L.Ed.2d 846 (1991) (quoting Winter v. California Medical Review, Inc., 900 F.2d 1322, 1324 (9th Cir. Santa Clara asserts Del Puerto does not contend it will suffer immediate hardship or immediate economic loss without judicial r......
  • Request a trial to view additional results
33 cases
  • Cnty. of Santa Clara v. Trump, Case Nos. 17-cv-00574-WHO, 17-cv-00485-WHO.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 25 Abril 2017
    ...result in direct and immediate hardship and would entail more than possible financial loss." Winter v. Cal. Med. Review, Inc. , 900 F.2d 1322, 1325 (9th Cir. 1989) (internal quotation marks omitted). The Government argues that the "uncertainties surrounding the implementation of S......
  • Bonnichsen v. U.S., Dept. of Army, Civil No. 96-1481-JE.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • 27 Junio 1997
    ...at least where those factual issues are inseparable from the merits of the case itself. Cf. Winter v. Calif. Medical Review Inc., 900 F.2d 1322, 1324 (9th Cir.1990) (the district court may hear evidence on jurisdictional questions and resolve factual disputes regarding that jurisdictional i......
  • Duval Ranching Co. v. Glickman, No. CV-N-95-38-ECR.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • 14 Marzo 1997
    ...decisions have been formalized and their effects concretely felt by challenging parties. Winter v. California Medical Review Board, Inc., 900 F.2d 1322, 1325 (9th Cir.1990). A court determines ripeness by examining Page 1443 fitness of the issues for judicial decision and the hardship to th......
  • Del Puerto Water Dist. v. U.S. Bureau of Reclamat., No. CIVF025934OWWDLB.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 13 Mayo 2003
    ...(9th Cir.1990) cert. denied, 498 U.S. 1067, 111 S.Ct. 784, 112 L.Ed.2d 846 (1991) (quoting Winter v. California Medical Review, Inc., 900 F.2d 1322, 1324 (9th Cir. Santa Clara asserts Del Puerto does not contend it will suffer immediate hardship or immediate economic loss without judicial r......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT