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Respondents also argue that there would be a presumption against them as they pursue their administrative appeals because of the very existence of the Secretary's instructions and her formal ruling and thus that exhaustion would not fully vindicate their claims. The history of this litigation as recited to us by respondents belies that conclusion. Indeed, according to respondents themselves, in every one of 170 claims filed with ALJs between the time of the Secretary's instructions to her intermediaries and the filing of this lawsuit, before the formal ruling became effective, ALJs allowed recovery for BCBR claims. Brief for Respondents 3. In promulgating the formal ruling, the Secretary took pains to exempt from the scope of the ruling individuals in respondents' position who may have had the surgery relying on the favorable ALJ rulings. 45 Fed.Reg. 71427 (1980). Although respondents would clearly prefer an immediate appeal to the District Court, rather than the often lengthy administrative review process, exhaustion of administrative remedies is in no sense futile for these respondents, and they, therefore, must adhere to the administrative procedure which Congress has established for adjudicating their Medicare claims. [Footnote 12]
"The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to the 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."
The Court's mistaken analysis of Ringer's claim stems from its failure to recognize that the jurisdictional limitation in § 205(h) refers only to actions "to recover on any claim arising under this subchapter" -- claims that are within the jurisdictional grant in § 205(g). Section 205(h) is simply inapplicable to a claim that cannot be asserted in an action under § 205(g), and hence does not preclude the assertion of jurisdiction over such a claim under § 1331.
There is yet another fundamental reason why § 205(h) does not preclude Ringer's claim. Section 205(h) precludes only actions "to recover" on a claim arising under the Social Security Act. That language plainly refers to an action in which the claimant seeks payment of benefits. Indeed, as I observed
above, Salfi stressed that the claimant in that case sought the payment of benefits. [Footnote 2/20] Today's majority finds § 205(h) applicable because Ringer "is clearly seeking to establish a right to future payments should he ultimately decide to proceed with BCBR surgery." Ante at 466 U. S. 621. If Ringer were seeking payment of benefits, this might well be a different case, but that is plainly not what he seeks. Ringer seeks a declaration that the Secretary's BCBR rule is invalid and an injunction against its operation. He alleges that it is the "irrefutable presumption" contained in the rule -- which denies administrative law judges discretion to decide in a hearing under § 205(b) whether BCBR is reimbursable -- that prevents him from having the operation. [Footnote 2/21] Ringer disavows any desire to obtain a judicial determination that benefits must be paid to him. Brief for Respondents 6-7. Thus, Ringer is not seeking "to recover." Instead he seeks an injunction against this "irrefutable presumption." Such an injunction would not result in the payment of benefits, but merely remove the hurdle to his having the operation, since, under those circumstances, his physician would have some hope of obtaining reimbursement through the administrative process. [Footnote 2/22]
Ringer does not seek payment of benefits under the Medicare Act, but rather to challenge a rule that prevents him from ever filing a claim for reimbursement under that Act. Therefore I would hold that Ringer is not seeking "to recover on a claim" under the Social Security Act, and hence federal jurisdiction over his claim is not barred by § 205(h) of that Act. Moreover, even if § 205(h) applied here, I would not require Ringer to pursue administrative review which is manifestly futile. Accordingly, while I concur in the Court's disposition of the claims asserted by the respondents who have had BCBR surgery, I respectfully dissent from its disposition of respondent Ringer's claim.
"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 Wecretary, or any officer or employee thereof shall be brought under sections 1331 or 1346 of title 2 to recover on any claim arising under this subchapter."
The Court's analysis is confined to the question whether Ringer's action is one "arising under" the Medicare Act; it never attempts to construe the immediately preceding words in § 205(h): "any claim to recover." See ante at 466 U. S. 621-624. The majority thereby is able to attack a straw man, since, by focusing only on the words "arising under," it avoids the question of how Ringer can have "any claim to recover arising under" that Act when he cannot submit any claim for Medicare benefits because he cannot afford the operation. Since Ringer cannot have the operation and is not seeking reimbursement, he has nothing on which he can recover. When the statute is read as a whole, the flaw in the Court's analysis becomes apparent.
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