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SIMONCELLI v. WEINBERGER

July 7, 1976

LEONARD R. SIMONCELLI
v.
CASPER W. WEINBERGER, Secretary of Health, Education, and Welfare, and PENNSYLVANIA BLUE SHIELD



The opinion of the court was delivered by: BECHTLE

BECHTLE, J.

 Presently before the Court is defendants' motion to dismiss the complaint for lack of subject-matter jurisdiction. Defendants are the Secretary of the Department of Health, Education and Welfare ("Secretary") and Pennsylvania Blue Shield ("Blue Shield"), a "carrier" under contract with the Secretary to administer the provisions of Part B of the Medicare program. *fn1" Plaintiff is a doctor, specializing in internal medicine, who has rendered medical services to many patients participating in the Medicare Part B program.

 On January 26, 1972, Blue Shield demanded a refund from plaintiff of previously paid claims in the amount of $13,960.25, based upon the determination of over-utilization. Blue Shield subsequently revised its refund demand to $13,282.40. Thereafter, plaintiff made a timely request for a hearing on three of the cases identified in the claims review. He also reserved the right to request hearings on the remaining cases. The requested hearing was held on November 27, 1973. *fn2" The decision of the hearing officer, which denied substantially all of the relief requested by plaintiff, was filed on July 19, 1974. By letter dated October 23, 1974, Blue Shield informed plaintiff that, pursuant to the decision of the hearing officer, its final refund calculation was for $13,162.40. *fn3" A written request to the Secretary for a hearing to review the decision was denied, by letter dated January 21, 1975, on the ground that the Social Security Act provided no further appeal rights in this situation. This action was commenced one month later.

 Blue Shield has withheld payment on plaintiff's assigned claims since June 16, 1971, as a possible set-off for the alleged overpayments. Currently pending in the administrative process are the remaining hearings on the cases in which Blue Shield has determined that there were overpayments, as well as a dispute concerning the validity of applying the payment formula devised by Blue Shield to the withheld assigned claims in order to determine their value. These problems do not currently concern us. This suit simply seeks judicial review of the three cases which have run the course of the administrative process.

 Defendants' argument that this Court lacks jurisdiction over the instant case is two-pronged. Their first contention is that there is no right of judicial review with respect to the amount of benefits payable under Part B of Title XVIII of the Social Security Act. They cite in support of that proposition the language of 42 U.S.C. § 1395ff (Supp. IV, 1974), amending 42 U.S.C. § 1395ff (1970). *fn4" The second prong of defendants' argument is that this is an action to which the United States has not consented and, therefore, the action is barred by sovereign immunity. This Court agrees with defendants that there is no right to judicial review of plaintiff's claims and, thus, we need not reach the sovereign immunity issue.

 In addition to 42 U.S.C. § 1395ff(b) (Supp. IV, 1974), which makes no provision for judicial review of denials of reimbursement by a carrier under Part B of the Medicare program, see footnote 4, supra, plaintiff alleges two alternative grounds in support of this Court's jurisdiction. One is the general federal question jurisdiction statute, 28 U.S.C. § 1331. The other is Section 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-706.

 We preface our discussion of the jurisdiction issue by noting that 42 U.S.C. § 405(h) (1970) is applicable to claims arising under Title XVIII of the Social Security Act. 42 U.S.C. § 1395ii (Supp. IV, 1974). Section 405(h) 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 [now § 1331 et seq. ] of Title 28 to recover on any claim arising under this subchapter.

 The Supreme Court has stated that the reach of section 405(h)

 
is not limited to decisions of the Secretary on issues of law or fact. Rather, it extends to any "action" seeking "to recover on any [Social Security] claim" -- irrespective of whether resort to judicial processes is necessitated by discretionary decisions of the Secretary or by his non-discretionary application of allegedly unconstitutional statutory restrictions. Weinberger v. Salfi, 422 U.S. 749, 762, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975).

 It was clearly held in Salfi that 42 U.S.C. § 405(h) precludes federal question jurisdiction in an action challenging the denial of claimed benefits. See Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 899, 47 L. Ed. 2d 18 (1976). In light of that holding, and the applicability of Section 405(h) to the instant action, this Court's jurisdiction may not be based upon 28 U.S.C. § 1331.

 A more substantial reviewability question is raised by the suggestion that we base our jurisdiction in this case upon the Administrative Procedure Act ("APA"). Section 10 of the APA provides for judicial review of agency action except to the extent that "(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." 5 U.S.C. § 701(a). A party claiming the applicability of either of these exceptions to the general rule of reviewability bears the "heavy burden" of demonstrating by "clear and convincing evidence" that Congress intended to restrict access to the courts. Concerned Residents of Buck Hill Falls v. Grant, 537 F.2d 29 (3d Cir. 1976).


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