Cedar View Good Samaritan v. Centers for Medicare Medicaid

Full title: CEDAR VIEW GOOD SAMARITAN CENTER, Petitioner, vs. CENTERS FOR MEDICARE…

Court: United States District Court, D. Kansas

Date published: Mar 19, 2004

Provider No. 17-5357; Case No. 03-1433-JTM (D. Kan. Mar. 19, 2004)

Opinion

Provider No. 17-5357; Case No. 03-1433-JTM

March 19, 2004

MEMORANDUM AND ORDER

J. THOMAS MARTEN, District Judge

The present case is an appeal by petitioner Cedar View Good SamaritanCenter of a civil monetary penalty imposed by the Centers for Medicare and Medicaid Services. The matter is before the court on the respondent's motion to dismiss for lack of subject matter jurisdiction.

The penalty here was imposed by respondent pursuant to 42 U.S.C. § 1395i-3(h)(2)(B)(ii). The penalty was affirmed by an Administrative Law Judge, Cedar View Good Samaritan Center v. CMS, DAB CR997 (Jan. 23, 2003), and the Departmental Appeals Board, Cedar View Good Samaritan Center v. CMS, DAB 1897 (Oct. 1, 2003).

The respondent seeks dismissal pursuant to 42 U.S.C. § 1320a-7a(c), which provides that the sole venue for an appeal of such a civil penalty lies with the Court of Appeals. The statute provides that:

Any person adversely affected by a determination of the Secretary under this section may obtain a review of such determination in the United States Court of Appeals for the circuit in which the person resides, or in which the claim was presented, by filing in such court (within sixty days following the date the person is notified of the Secretary's determination) a written petition requesting that the determination be modified or set aside.

In opposing the motion to dismiss, petitioner first constructs an argument which would permit this court to hear the appeal, but only through an unconvincing statutory construction. Petitioner's argument relies on 42 U.S.C. § 1395ii, which incorporates certain provisions of Subchapter II of the Social Security Act into the Subchapter XVIII (governing the imposition of the penalties assessed here), and ultimately concludes that the court should import into Subchapter XVIII the provision contained in 42 U.S.C. § 405 (g), which provides in part that adverse agency decisions may be appealed to a district court.

There are several problems with the petitioner's argument. First, § 1395ii explicitly incorporates only ten specific Subchapter II provisions — 42 U.S.C. § 406 and 416(j), along with eight specific subsections of 42 U.S.C. § 405. Critically, 42 U.S.C. § 405(g) is not among the provisions incorporated by § 1395ii. Petitioner attempts to escape this difficulty by suggesting that § 405(h) itself somehow incorporates § 405(g). It does not. The purpose of § 405(h) is simply to provide finality to the agency decision, unless the decisionis properly reviewed. The statute does not independently authorize any review or define the manner of review. That is accomplished in § 405(g).

But, as noted earlier, § 405(g) is one of the provisions which is expressly excluded from the lengthy list of Subchapter II provisions which are identified for incorporation by § 1395ii. The language of § 1395ii reflects a desire to adopt only those eight portions of § 405 specifically identified; conversely, the failure to include § 405(g) (with its provision for appeal to the district courts) among the other provisions is an indication that Congress did not intend to allow for such appeals. This is in keeping with the express provision in 42 U.S.C. § 1320a-7a(c), which would limit appeals to the Court of Appeals. The various cases cited by petitioner are not on point.

Second, petitioner argues that § 1320a-7a(c) is permissive only, by providing one means of appeal which a party may undertake. This is similarly unconvincing. The language referenced statute is permissive only in the unremarkable sense that a party to an adverse decision by the Secretary "may" appeal to the Court of Appeals, or she "may" accept the decision and comply with its terms. That is, the statute's language means simply that not everyone subject to an adverse agency decision is required to appeal. The language used is not, as petitioner would have it, a license to freely substitute other forums for an appeal in place of the only one specified in the statute — the United States Court of Appeals.

Finally, petitioner argues that appeal is proper here on the grounds of estoppel. Even assuming the record presents a basis for finding estoppel, and the court is not persuaded any basis for estoppel exists, it cannot justify continued jurisdiction here. That is because

parties cannot circumvent constitutional and statutory limitations to create jurisdiction where it does not otherwise exist. Insurance Corp. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (holding that "no action of the parties can confer subject-matter jurisdiction upon a federal court," and that principles of waiver and estoppel do not apply). See also Stubblefield v. Windsor Cap. Grp., 74 F.3d 990, 993 n. 3 (10th Cir. 1996) (holding that a party's concession of jurisdiction has no legal effect "because where our jurisdiction is not authorized by statute, it cannot be manufactured by consent").

Kennedy v. Lubar, 273 F.3d 1293, 1301 (10th Cir. 2001).

IT IS ACCORDINGLY ORDERED this 19^th day of March, 2004 that the respondent's Motion to Dismiss (Dkt. No. 7) is hereby granted.