and I find that those regulations do not violate any portion of the Medicare statute.
II. Jurisdiction of the District Court
Einstein argues in the alternative that this court has jurisdiction to decide its appeal directly under 28 U.S.C. § 1331, federal question jurisdiction, or to assert federal question jurisdiction and remand the case to the PRRB for a hearing.
The Medicare Statute, through 42 U.S.C. § 1395ii, incorporates 42 U.S.C. § 405(h), the jurisdictional provision of the Social Security Act. That section provides, in full:
The findings and decision 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 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter.
42 U.S.C. § 405(h). As the Third circuit has stated, this section "removes from the federal courts any jurisdiction over claims arising under the Medicare Act for reimbursement, except as to the extent allowed in 42 U.S.C. § 1395oo(f)." Abington Memorial Hosp. v. Heckler, 750 F.2d 242, 244 (3d Cir. 1984), cert. denied, 474 U.S. 863, 88 L. Ed. 2d 149, 106 S. Ct. 180 (1985). The court continued: "Section 1395oo of the Act establishes the Provider Reimbursement Review Board as the forum of first resort, and requires exhaustion of one's remedies there before court review is appropriate." Abington, 750 F.2d at 244. In Part I of this Memorandum, I examined the PRRB's decision to refuse jurisdiction, and found that decision to be correct. Einstein has thus received all the judicial review to which it is entitled. To exercise federal question jurisdiction over Einstein's claims would be to ignore the express instructions of 42 U.S.C. § 405(h) that such jurisdiction not be exercised. As the Supreme Court stated in Weinberger v. Salfi, 422 U.S. 749, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975), "that the third sentence of § 405(h) is more than a codified requirement of administrative exhaustion is plain from its own language, which is sweeping and direct and which states that no action shall be brought under § 1331." Weinberger, 422 U.S. at 757 (emphasis in original).
In support of its assertion that this court may exercise federal question jurisdiction, Einstein relies on a lone district court decision, Memorial Hosp. v. Sullivan, 779 F. Supp. 1410 (D.D.C. 1991). But the Memorial decision is contrary to the statute and the substantial weight of authority. See, e.g., Abington; St. Joseph's Hosp. v. Heckler, 786 F.2d 848 (8th Cir. 1986); Saline Community Hosp. Ass'n v. Secretary of Health & Human Services, 744 F.2d 517 (6th Cir. 1984); V.N.A. of Greater Tift County v. Heckler, 711 F.2d 1020 (11th Cir. 1983), cert. denied, 466 U.S. 936, 80 L. Ed. 2d 457, 104 S. Ct. 1908 (1984). The Memorial decision does not establish that the courts are now more willing to exercise federal question jurisdiction in Medicare cases; rather, the decision is a very narrow one on very specific facts.
The case before me is not like Memorial, where the provider was misled by the secretary with respect to its appeal rights, nor is Einstein's a situation in which the provider has been strangled with bureaucratic red tape. Einstein either slept on its appeal rights, or, for tactical reasons, chose not to timely exercise those rights. I cannot undo Einstein's nonfeasance by circumventing the clear intention of Congress: that the courts not exercise federal question jurisdiction over Medicare claims.
For all of the reasons stated above, I shall affirm the decision of the PRRB, deny Einstein's motion for summary judgment, and grant the Secretary's motion for summary judgment.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 830 F. Supp. 846.]
An order follows.
AND NOW, this 23rd day of November, 1992, upon consideration of the parties' cross-motions for Summary Judgment, and the responses and replies thereto, and after argument in open court, it is ORDERED that plaintiff's Motion for Summary Judgment is DENIED, and defendant's Motion for Summary Judgment is GRANTED.
BY THE COURT:
Robert S. Gawthrop, III