MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, ET
AL., PETITIONERS V. MICHIGAN ACADEMY OF FAMILY PHYSICIANS, ET AL.

   No. 85-225

   In the Supreme Court of the United States

   October Term, 1985

   On Writ of Certiorari to the United States Court of Appeals for the
Sixth Circuit

   Brief for the Petitioners

                       PARTIES TO THE PROCEEDING

   The partitioners are Margaret M. Heckler, Secretary of Health and
Human Services, and Blue Cross and Blue Shield of Michigan, an
insurance carrier that has contracted with the Secretary pursuant to
42 U.S.C. 1395u to administer the Part B Medicare Program in Michigan
on her behalf.

   The respondents are:  (1) the Michigan Academy of Family
Physicians, a non-profit association of family physicians in Michigan;
 (2) Lester Webb and Charles Farber, family physicians who are
eligible for specialist certification under the standards of the
American Board of Family Practice but who have not been certified as
specialists under those standards;  (3) Glenn House, a family
physician certified as a specialist under the standards of the
American Board of Family Practice;  and (4) Carol A. Diedrich, a
resident of Michigan and a Medicare Part B recipient whose treating
physician, Philip Lange, is a family physician who is neither
Board-certified nor Board-eligible.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutory provisions and regulation involved
   Statement
      A. The statutory framework
          1. Procedural provisions
          2. Substantive provisions
      B. The proceedings in this case
   Summary of argument
   Argument:
      The district court did not have jurisdiction to entertain
      respondents' challenge to a regulation affecting the carrier's
      determination of the prevailing charge level for physicians'
      services under Part B of the Medicare Program
      I. Judicial review of the amount of benefits under
          Part B of the Medicare Program is foreclosed by
          42 U.S.C. 1395ff
          A. The text and legislative history of the Medicare
              Act and this Court's decisions in Erika and Ringer
              bar judicial review of questions relating to the
              amount of benefits under Part B
          B. The court of appeals' and respondents' efforts
              to avoid 42 U.S.C. 1395ff and the holdings in
              Erika and Ringer are without merit
     II. The exercise of jurisdiction under 28 U.S.C. 1331
          over claims arising under the Medicare Program
          is barred by 42 U.S.C. 405(h)
          A. This Court's decisions in Salfi and Ringer
              establish that Section 405(h) bars federal
              question jurisdiction in this case
          B. The jurisdictional bar in 42 U.S.C. 405(h)
              applies to suits by physicians as well as suits
              by Part B beneficiaries
    III. The district court's exercise of jurisdiction in
          this case cannot be supported by a presumption
          in favor of judicial review
   Conclusion
   Appendix

                            OPINIONS BELOW

   The original opinion of the court of appeals (Pet. App. 1a-15a) is
reported at 728 F.2d 326.  The November 5, 1984 order of the court of
appeals (Pet. App. 16a), following the remand by this Court (No.
84-120 (Oct. 1, 1984)), is reported at 751 F.2d 809.  The March 19,
1985 opinion of the court of appeals (Pet. App. 17a-22a), rendered on
respondents' petition for rehearing, is reported at 757 F.2d 91.  The
opinion of the district court (Pet. App. 23a-33a) is reported at 502
F. Supp. 751.  The earlier memorandum opinion of the district court
(J.A. 10-12) denying the Secretary's motion to dismiss the complaint
for lack of jurisdiction is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on March 19, 1985.
 The Secretary's petition for rehearing was denied on May 30, 1985
(Pet. App. 35a).  The petition for a writ of certiorari was filed on
August 9, 1985, and was granted on October 7, 1985 (J.A. 63).  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

             STATUTORY PROVISIONS AND REGULATION INVOLVED

   28 U.S.C. 1331;  relevant provisions of Sections 205(h), 1842 and
1869 of the Social Security Act, 42 U.S.C. 405(h), 1395u and 1395ff;
and 42 C.F.R. 405.504(b) are reproduced at App., infra, 1a-6a.

                          QUESTION PRESENTED

   Whether, notwithstanding the preclusions of review in 42 U.S.C.
1395ff and 405(h), the district court properly exercised jurisdiction
under 28 U.S.C. 1331 to entertain respondents' challenge to a
regulation affecting the carrier's calculation of the amount of
benefits payable for certain physicians' services under Part B of the
Medicare Program.

                               STATEMENT

   The question presented in this case is whether the district court
had jurisdiction under 28 U.S.C. 1331 to entertain a challenge to a
regulation promulgated by the Secretary of Health and Human Services
that affects the amount of benefits for certain physicians' services
under Part B of the Medicare Program.

                      A. The Statutory Framework

   The Medicare Program is divided into two parts.  Part A provides
insurance for hospital and related post-hospital services.  42 U.S.C.
1395c, 1395d.  Part B establishes a voluntary program of supplementary
medical insurance covering, in general, 80% of the "reasonable charge"
for physicians' and other medical services.  42 U.S.C. 1395k, 1395l,
1395x(s).

                       1. Procedural Provisions

   a. Part A of the Medicare Program authorizes the Secretary to enter
into contracts with fiscal intermediaries under which the
intermediaries determine whether particular services are covered by
Part A and, if so, the amount of benefits that are payable.  42 U.S.C.
1395h.  See Heckler v. Ringer, No. 82-1772 (May 14, 1984), slip op.
2-3.  If the intermediary determines that a particular service is not
covered by Part A or that the amount of benefits is less than the full
cost to the beneficiary, the claimant is entitled to seek
reconsideration by the Health Care Financing Administration (HCFA) in
the Department of Health and Human Services (HHS).  42 C.F.R.
405.710-405.716.  If the intermediary's denial of the claim is
affirmed on reconsideration and the amount in controversy is at least
$100, the claimant has a statutory right to an evidentiary hearing
before an administrative law judge (ALJ) in HHS to the same extent as
is provided in 42 U.S.C. 405(b).  42 U.S.C. 1395ff(b)(1)(C) and (2).
If the ALJ denies the claim and the Appeals Council sustains that
decision, and if the amount in controversy is $1,000 or more, the
claimant may seek judicial review to the same extent as is provided in
42 U.S.C. 405(g).  42 U.S.C. 1395ff(b)(1)(C) and (2).  See Ringer,
slip op. 3.  On judicial review, the court may consider the validity
of any law, regulation or ruling that had the effect of limiting or
denying Part A benefits to the claimant.  See Ringer, slip op. 10-11,
13.

   The Medicare Act also provides a mechanism for a hospital or other
provider of Part A services to obtain review of the amount it will be
reimbursed.  A provider is paid an aggregate amount for all Part A
services rendered during the relevant time period.  See Heckler v.
Community Health Services, No. 83-56 (May 21, 1984), slip op. 2.  /1/
If the provider is dissatisfied with the intermediary's determination,
and if the amount in controversy is $10,000 or more, the provider may
request a hearing before the Provider Reimbursement Review Board
(PRRB) in HHS.  42 U.S.C. 1395oo(a) and (c).  The provider then may
seek judicial review in district court of an adverse "final decision"
of the PRRB.  42 U.S.C. 1395oo(f)(1);  Heckler v. Community Health
Services, slip op. 6.  On judicial review of the PRRB's final
decision, the court may consider the validity of any law, regulation,
or ruling that had the effect of limiting the amount of reimbursement.
 In addition, the Act allows a provider to obtain expedited judicial
review, without awaiting the PRRB's final decision, of any "question
of law or regulations relevant to the matters in controversy whenever
the (PRRB) determines . . . that it is without authority to decide the
question" (42 U.S.C. 1395oo(f)(1);  see 42 C.F.R. 405.1842).

   b. Congress has provided for far more limited review of benefit
determinations under the Part B Medicare Program, at issue here.  The
Secretary is authorized to enter into contracts with private insurance
carriers under which the carriers determine whether particular
services are covered by Part B and the amount of the "reasonable
charge" for those services.  42 U.S.C. 1395u;  42 C.F.R.
405.803-405.806.  See Schweiker v. McClure, 456 U.S. 188, 190 (1982).
If the carrier determines that the services are not covered by Part B
or that the payment due is less than the amount claimed, the claimant
is entitled to a review determination by the carrier.  42 C.F.R.
405.807-405.811.  See United States v. Erika, Inc., 456 U.S. 201, 203
(1982);  McClure, 456 U.S. at 191.  If the decision after the review
determination is adverse to the claimant and the amount remaining in
controversy is $100 or more, the claimant is entitled by statute to an
evidentiary hearing by the carrier.  42 U.S.C. 1395u(b)(3)(C);  42
C.F.R. 405.812-405.835.  See McClure, 456 U.S. at 191.

   In contrast to the Part A Program, there is no provision under Part
B for administrative review by HHS of the carrier's denial of a claim.
 42 C.F.R. 405.502(d).  Moreover, although 42 U.S.C. 1395ff(b)(1)(C)
expressly provides for the claimant to obtain judicial review of the
"amount of benefits" payable under Part A, there is no parallel
provision in 42 U.S.C. 1395ff for a claimant to obtain judicial review
of the "amount of benefits" payable under Part B.  In Erika, the Court
held that by this omission, Congress "deliberately intended to
foreclose further review of such claims" (456 U.S. at 208).  Accord
Ringer, slip op. 5 n.4.

   The Act likewise does not contain any special procedures under Part
B, similar to those available to Part A providers under 42 U.S.C.
1395oo, for a physician to obtain administrative or judicial review of
the carrier's determination regarding the amount of benefits payable
for covered services.  This is because under Part B, benefits are paid
to the beneficiary, not the physician, unless the beneficiary assigns
his reimbursement claim to the physician.  42 U.S.C. 1395u(b)(3)(B)(i)
and (ii).  In the latter event, the physician stands in the shoes of
the beneficiary and has the same right to an evidentiary hearing by
the carrier, 42 C.F.R. 405.801(a);  Erika, 456 U.S. at 203, 207 n.7.
But as the Court held in Erika, Congress also has foreclosed the
assignee of a Part B claim from obtaining judicial review.

                       2. Substantive Provisions

   a. The Social Security Act requires a carrier that administers the
Part B Program to make payment for covered services on the basis of
the "reasonable charge" for the services.  42 U.S.C. 1395u(b)(3)(B).
In determining the reasonable charge, the carrier must "take() into
consideration the customary charges for similar services generally
made by the physician . . . as well as the prevailing charges in the
locality for similar services." 42 U.S.C. 1395u(b)(3).  Congress
amended 42 U.S.C. 1395u(b)(3) in 1972 specifically to provide that
"(n)o charge may be determined to be reasonable . . . if it exceeds .
. . the prevailing charge level that, on the basis of statistical data
and methodology acceptable to the Secretary, would cover 75 percent of
the customary charges made for similar services in the same locality
during the last preceding calendar year . . ." Pub. L. No. 92-603,
Section 224(a), 86 Stat. 1395.  Applying these principles, the
"reasonable charge" for a physician's services ordinarily is the
lowest of:  (1) the actual charge in the particular instance, (2) the
individual physician's customary charge, and (3) the prevailing charge
in the locality for similar services (Pet. App. 2a-3a).  See 42 C.F.R.
405.502.

   b. The regulation respondents challenge in this case was
promulgated in August 1967 (32 Fed. Reg. 12601), just one year after
the Medicare Program went into effect (see 42 U.S.C. 1395q(a) (1)).
It was intended to furnish the carriers guidance in giving content to
the "prevailing charge" component of the "reasonable charge"
calculation.  The regulation recognizes that "(t)he range of
prevailing charges in a locality may be different for physicians . . .
who engage in a specialty practice or service than for others." 42
C.F.R. 405.504(b).  It further permits (but does not require) a
carrier, based on "(e)xisting differentials in the level of charges
between different kinds of practice or service," to develop "more than
one range of prevailing charges for application by the carrier in its
determinations of reasonable charges." Ibid.  The regulation stresses,
however, that "(c)arrier decisions in this respect should be
responsive to the existing patterns of charges by physicians and other
persons who render covered services, and should establish
differentials in the levels of charges between different kinds of
practice or service only where in accord with such patterns." Ibid.

   Consistent with this regulation, Blue Cross/Blue Shield of Michigan
(BC/BSM), the carrier responsible for administering the Part B Program
in Michigan, conducted a statistical analysis of differentials in
physicians' charges in that State in 1968.  Based on its analysis,
BC/BSM identified three categories of physicians for reimbursement
purposes:  (1) hospital internists and other hospital specialists, (2)
other specialists, and (3) general practitioners and other
non-specialists.  The prevailing charges for specialists in Michigan
generally were higher than those for non-specialists, and a Part B
beneficiary therefore ordinarly received a greater dollar amount in
reimbursement for the greater expense he incurred in being treated by
a specialist.  Pet. App. 4a.  Following creation of the family
practice specialty, BC/BSM in 1973 classified Board-certified family
practitioners in the specialist category, but family physicians who
were merely eligible for Board certification and family phisicians who
were neither Board-eligible nor Board-certified were grouped with the
non-specialists.  Ibid.  /2/

                    B. The Proceedings In This Case

   1. a. Respondents filed this action on October 8, 1976 in the
United States District Court for the Eastern District of Michigan to
challenge BC/BSM'S classification of family practitioners for purposes
of calculating the prevailing charge level for their services (J.A. 1;
 C.A. App. 11-29).  The initial plaintiffs were the Michigan Academy
of Family Physicians, one Board-certified family practitioner, and two
Board-eligible family practioners (C.A. App. 11-12, 19, 19-20).
Later, a Part B beneficiary who was the patient of a family
practitioner who was neither Board-certified nor Board-eligible was
joined as a plaintiff (Pet. App. 31a-32a;  J.A. 57-59).  In their
amended complaint (J.A. 14-30), respondents alleged that the differing
treatment of family physicians (i) was inconsistent with the
requirement in 42 U.S.C. 1395u(b)(3) that the reasonable charge be
calculated by reference to the prevailing charge for "similar
services," and (ii) violated the prohibition in 42 U.S.C. 1395a
against interference by the Secretary with a beneficiary's selection
of a physician (J.A. 26-27).  Respondents further alleged that BC/BSM
and the Secretary had failed to produce adequate statistical data to
support the maintenance of separate charge screens (J.A. 27).  /3/

   b. On December 28, 1977, the district court denied the motion of
the Secretary and BC/BSM to dismiss the complaint for lack of
jurisdiction (J.A. 10-12).  The district court conceded that in
challenging BC/BSM's charge screens, respondents "(w)ithout doubt . .
. are motivated in part by a desire for increased payment for
services" (J.A. 11).  But the court nonetheless held that it had
jurisdiction because an invalidation of BC/BSM's charge screens would
not necessarily lead to an increase in any particular payments (J.A.
11).

   c. On the merits, the district court held in an opinion dated
December 30, 1980 that the establishment of separate charge screens is
inconsistent with the Medicare Act and that 42 C.F.R. 405.504(b) is
invalid to the extent it authorized the screens established by BC/BSM
(Pet. App. 23a-33a).  The court relied on 42 U.S.C. 1395u(b)(3), which
requires the carrier to take into consideration and establish a
ceiling based on the prevailing charge level for "similar services" in
the locality.  In the court's view, the quoted term requires that
services performed by physicians with different degrees of
specialization be reimbursed at an identical level.  Pet. App. 5a,
28a-30a.  The court also held that the separate charge screens violate
42 U.S.C. 1395a because they "tend() to influence the patient's choice
of a physician" (Pet. App. 30a-31a).  Finally, the court believed that
BC/BSM did not identify an adequate factual or statistical basis for
distinguishing among groups of physicians (id. at 28a, 31a).

   2. In an opinion dated February 23, 1984, the court of appeals
affirmed the district court's rulings on jurisdiction and the merits
(Pet. App. 1a-15a).

   a. The court of appeals conceded that 42 U.S.C. 1395ff and this
Court's decision in Erika foreclose judicial review of the amount of
benefits payable for particular services under Part B of the Medicare
Program (Pet. App. 6a-8a), because "Congress clearly and convincingly
intended that no judicial review of such questions was permissible"
(id. at 7a).  But the court observed that in the wake of Erika,
several lower courts had "strenuously endeavored to find jurisdiction"
over challenges to certain "procedural aspects" of the Medicare
Program (Pet. App. 8a), and it elected to do the same.  Thus, although
the court of appeals acknowledged that "the eventual result of this
suit may cause an increase in amounts of reimbursement" for services
rendered by family physicians (ibid.), it nevertheless held that the
suit is not barred by 42 U.S.C. 1395ff and Erika because respondents
are challenging the "mechanism" for computing the reasonable charge
for particular services, not the reasonable charge itself (Pet. App.
8a-9a).

   The court of appeals further concluded that the district court's
exercise of federal question jurisdiction under 28 U.S.C. 1331 was not
barred by 42 U.S.C. 405(h), which is incorporated into the Medicare
Act by 42 U.S.C. 1395ii (Pet. App. 9a-11a).  The court acknowledged
that in Weinberger v. Salfi, 422 U.S. 749 (1975), and subsequent
decisions, this Court had held that the third sentence of Section
405(h) prohibits a district court from exercising jurisdiction under
28 U.S.C. 1331 over any claim "arising under" the Social Security Act.
 But it noted that in Salfi and the other decisions, this Court had
referred to an alternative method for obtaining judicial review
pursuant to 42 U.S.C. 405(g).  Because there is no provision for
review of Part B Medicare claims pursuant to 42 U.S.C. 405(g), the
court of appeals held that 42 U.S.C. 405(h) should not be construed to
preclude jurisdiction under 28 U.S.C. 1331 over a suit arising under
Part B.  Pet. App. 10a-11a.

   b. On the merits, the court of appeals invalidated 42 C.F.R.
405.504(b) and BC/BSM's methodology for calculating payments for
physicians' services by reference to the separate prevailing charge
screens (Pet. App. 11a-14a).  The court rejected the Secretary's
contention that the provision in 42 C.F.R. 405.504(b) for separate
charge screens furthers the legislative intent to have reimbursement
reflect the actual charge patterns in the community.  The court
believed instead that the "touchstone of (42 U.S.C. 1395u(b)(3)) is
that similar services, once determined, are to be compensated equally,
regardless of who performs them" (Pet. App. 12a).  The court further
explained that because the reimbursement approach BC/BSM followed
might create an added incentive for physicians to become specialized
and for patients to seek specialized care, "the regulation as applied
violates 42 U.S.C. Section 1395a, prohibiting infringement of a
patient's free choice of a physician" (Pet. App. 14a).  The court
therefore remanded the case to the Secretary "with instructions to
consider similar services in an equal manner regardless of who
performs that service" (id. at 15a).

   3. The Secretary and BC/BSM then filed a petition for a writ of
certiorari, arguing that the court of appeals' jurisdictional ruling
was contrary to the preclusions of review in 42 U.S.C. 1395ff and
405(h), as interpreted by this Court in Erika and the intervening
decision in Ringer.  The Court granted the petition, vacated the
judgment of the court of appeals, and remanded the case to the court
of appeals for further consideration in light of Ringer.  Heckler v.
Michigan Academy of Family Physicians, No. 84-120 (Oct. 1, 1984).

   4. On remand, the court of appeals at first ordered the case
dismissed for lack of jurisdiction, explaining that "the principles
stated by the Supreme Court in Heckler v. Ringer require us to find
that the federal courts lack jurisdiction over the present case" (Pet.
App. 16a).  However, on respondents' petition for rehearing, the panel
held that Ringer and Erika do not preclude the exercise of
jurisdiction in this case (Pet. App. 17a-22a).

   The court of appeals acknowledged that this Court, in footnote 4 of
its opinion in Ringer, held that judicial review was barred in that
case insofar as it arose under Part B of the Medicare Program (Pet.
App. 21a).  But although the Court in Ringer expressly relied for this
proposition on its prior decision in Erika (see Ringer, slip op. 5
n.4), which in turn relied on the preclusion of review in 42 U.S.C.
1395ff (see 456 U.S. at 206-211), the court of appeals stated that
"(i)n reaching its decision in Heckler v. Ringer(,) the Supreme Court
did not reply on Section 1395ff" (Pet. App. 18a n.2).  Presumably for
this reason, the court of appeals did not discuss 42 U.S.C. 1395ff
further.

   With regard to the additional preclusion of review in 42 U.S.C.
405(h), the court of appeals acknowledged that this Court held in
Ringer that the challenge to the ruling there at issue fell within the
prohibition in Section 405(h) against the exercise of jurisdiction
under 28 U.S.C. 1331 (Pet. App. 19a-20a) and that the application of
Section 405(h) does not depend on whether judicial review of the
particular claim is otherwise available under the Social Security Act
itself (Pet. App. 21a-22a).  But without explaining why Ringer was not
therefore controlling, the court of appeals held that the district
court did have jurisdiction under 28 U.S.C. 1331 to entertain
respondents' challenge to a regulation that affected the amount of
benefits payable.  The court relied on nothing more than a
"presumption" favoring judicial review and its notion that "for every
right there must be a remedy" (Pet. App. 22a).  The court of appeals
further concluded, without elaboration, that Ringer does not foreclose
judicial review "by a party other than a claimant for benefits" (Pet.
App. 21a, 22a).

                          SUMMARY OF ARGUMENT

                                   I

   A. The text and legislative history of the Medicare Act establish
that Congress has forclosed judicial review of matters pertaining to
the amount of benefits under Part B of the Medicare Program.  The only
Section of the Act that provides for any form of review of the amount
of benefits under Part B is 42 U.S.C. 1395u(b)(3), which confers a
right to a hearing by the carrier on a disputed claim but makes no
provision for administrative review by the Secretary or judicial
review by the courts.  Moreover, under 42 U.S.C. 1395ff, a beneficiary
is expressly granted a right to judicial review concerning his
entitlement to participate in the Part A or Part B Medicare Program
and to judicial review of the "amount of benefits under Part A." But
Section 1395ff conspicuously fails to provide for judicial review of
the amount of benefits under Part B.  This omission in itself
furnishes persuasive evidence that Congress deliberately intended to
foreclose such review.  As this Court observed in United States v.
Erika, Inc., 456 U.S. 201, 211 (1982), the legislative history of the
original Medicare Act and the 1972 amendments to 42 U.S.C. 1395ff
"unambiguously support(s)" this reading of the statutory text.  The
Court accordingly held in Erika that judicial review is entirely
foreclosed under Part B, and the Court adhered to that view in Heckler
v. Ringer, No. 82-1772 (May 14, 1984), slip op. 5 n.4.

   This case falls squarely within the preclusion of review that
Congress twice enacted and this Court recognized in Erika and Ringer,
because the prevailing charge screens respondents challenge operate as
a ceiling on the amount of benefits payable for covered services under
Part B.  Indeed, it is particularly clear that Congress did not intend
to permit judicial review of a carrier's determination of the
prevailing charge level, because that determination depends on the
ascertainment and analysis of legislative facts that are peculiarly
within the expertise of the Secretary and the carriers.  This
conclusion is confirmed by the text of 42 U.S.C. 1395u(b)(3), which
requires only that the carrier's methodology for determining the
prevailing charge level be "acceptable to the Secretary," and by the
recent enactment of an express exception to the judicial review
provisions for similar determinations under Part A.

   B. The various attempts by the court of appeals and respondents to
avoid the preclusion of review under 42 U.S.C. 1395ff and this Court's
decisions in Erika and Ringer are without merit.  This case in fact is
indistinguishable from Erika, because the plaintiff in that case
likewise challenged the carrier's methodology for calculating the
prevailing charge level for certain Part B services.  Erika and Ringer
also make clear that, contrary to respondents' submission, 42 U.S.C.
1395ff does not permit judicial review of so-called "statutory"
issues.  In each of those cases the plaintiff alleged that the
carrier's actions under Part B were inconsistent with the Medicare
Act, but the Court nevertheless held that judicial review was barred
by Section 1395ff.  Nor does it matter that respondents have
characterized their suit as a challenge to the Secretary's regulation
authorizing the establishment of separate prevailing charge screens,
rather than to the amount of benefits paid by reference to the screens
themselves.  In Erika and Ringer the plaintiffs challenged the
validity of instructions by the Secretary that were binding upon the
carrier in the same manner as a regulation, but this Court
nevertheless held that judicial review under Part B was precluded.

                                  II

   A. The conclusion compelled by 42 U.S.C. 1395ff -- that judicial
review of a regulation affecting the amount of benefits under Part B
is barred because such review is not affirmatively authorized by the
Social Security Act -- is confirmed by 42 U.S.C. 405(h).  The second
sentence of Section 405(h) provides that no decision by the Secretary
shall be reviewed by any "tribunal" except as provided in the Social
Security Act itself.  The carrier is the Secretary's agent in
rendering decisions under Part B.  The second sentence of Section
405(h) therefore bars review by a judicial "tribunal" of the carrier's
decision regarding the amount of benefits under Part B.

   In addition, the third sentence of Section 405(h) specifically
precludes the bringing of an action under 28 U.S.C. 1331 to recover on
any claim "arising under" the Social Security Act.  This Court's
decisions in Ringer and Weinberger v. Salfi, 422 U.S. 749 (1975), make
clear that this jurisdictional bar is fully applicable where, as here,
the plaintiff seeks only declaratory and injunctive relief or
characterizes his challenge as "procedural" in nature.  Ringer also
confirms that the third sentence of Section 405(h) is fully applicable
where, as under Part B, judicial review is not otherwise made
available by the Social Security Act itself.

   B. There also is no support for the court of appeals' holding that
Ringer does not bar judicial review "by a party other than a claimant
for benefits" (Pet. App. 22a).  One of the plaintiffs in Ringer had
not submitted a claim for benefits, but the Court nevertheless held
that federal question jurisdiction was precluded by Section 405(h).
And in Erika, the Court foreclosed the supplier of Part B services,
not just the beneficiary, from obtaining judicial review.  By
contrast, under the Part A Program, Congress has expressly afforded
providers of services a right of judicial review.  See 42 U.S.C.
1395oo(f).  The fact that Congress did not afford a similar right to
their counterparts under Part B is a persuasive indication that
Congress deliberately forclosed such suits by physicians.

                                  III

   The court of appeals in the end was forced to fall back on a
presumption in favor of judicial review.  However, any such
presumption under Part B necessarily is overcome by this Court's
construction of congressional intent in Erika and Ringer.  Respondents
cannot avoid those holdings by relying on a presumption of judicial
review where the constitutionality of an Act of Congress is
challenged, since they have not attacked the validity of any
provisions of the Social Security Act.  The Court need not decide
whether Congress has foreclosed judicial review of constitional
objections to determinations made in the administration of the Part B
Program, because here, as in Ringer (slip op. 5 n.4), respondents'
constitutional claims are too insubstantial to support subject matter
jurisdiction in any event.

                               ARGUMENT

 THE DISTRICT COURT DID NOT HAVE JURISDICTION TO ENTERTAIN
RESPONDENTS' CHALLENGE TO A REGULATION AFFECTING THE CARRIER'S
DETERMINATION OF THE PREVAILING CHARGE LEVEL FOR PHYSICIANS' SERVICES
UNDER PART B OF THE MEDICARE PROGRAM

   Respondents invoked the jurisdiction of the district court under 28
U.S.C. 1331 to challenge a regulation that authorizes a carrier to
develop separate prevailing charge screens to calculate the amount of
Part B Medicare benefits paid for physicians' services.  Judicial
review of such matters is barred by two separate provisions of the
Social Security Act.  The first is 42 U.S.C. 1395ff, which provides
the exclusive avenue of judicial review for participants in the
Medicare Program but does not provide for judicial review of the
amount of benefits under Part B.  The second is 42 U.S.C. 405(h),
which prohibits the review by any "tribunal" of decisions on claims
for benefits under the Social Security Act (except as provided under
that Act) and specifically precludes the bringing of an action under
28 U.S.C. 1331 to recover on any claim "arising under" the Social
Security Act.

   The court of appeals' holding that the district court had
jurisdiction notwithstanding these preclusions of review is flatly
inconsistent with this Court's decisions in United States v. Erika,
Inc., 456 U.S. 201 (1982), and Heckler v. Ringer, No. 82-1772 (May 14,
1984).  Those cases, like this one, involved challenges to a rule or
instruction of general applicability that bound the carrier and had
the effect of limiting the amount of benefits the carrier could pay on
individual benefit claims.  The Court nevertheless held that judicial
review was foreclosed under Part B.

   The court of appeals' failure to follow Erika and Ringer
unfortunately is typical of the manner in which some lower courts
continue to disregard the clear intent of Congress and the clear
pronouncements of this Court on questions of jurisdiction arising
under the massive Social Security programs.  Congress has carefully
specified the circumstances and manner in which judicial review is
available under the Social Security Act, in the interst of promoting
efficiency and fairness in the administration of the Act and
preventing the courts from being flooded with minor disputes that
Congress determined were more appropriately left to the Secretary to
resolve.  This congressional policy is particularly compelling under
Part B of the Medicare Program, in which more than 150 million claims
are submitted annually.  McClure, 456 U.S. at 190.

   The decision below, if afrirmed by this Court, would permit
judicial review under Part B whenever a claimant characterizes his
challenge to the amount of benefits payable under Part B as a
challenge to a regulation of the Secretary or a general policy of the
carrier that has a bearing on the disposition of individual claims.
Virtually any claimant could cast his challenge in such terms.  The
result would be to foster the very potential for widespread litigation
over minor disputes that threatened to ensue prior to this Court's
decision in Erika.  The Court adhered to its unanimous holding in
Erika just two Terms ago in Ringer, and there is no basis for a
different result here.

 I. JUDICIAL REVIEW OF THE AMOUNT OF BENEFITS UNDER PART B OF THE
MEDICARE PROGRAM IS FORECLOSED BY 42 U.S.C. 1395ff

 A. The Text And Legislative History Of The Medicare Act And This
Court's Decision In Erika And Ringer Bar Judicial Review Of Questions
Relating To The Amount Of Benefits Under Part B

   1. The Medicare Act provides for only limited review of questions
of coverage and the amount of benefits payable under Part B of the
Medicare Program.  The relevant statutory provisions do not
contemplate judicial review.

   The carrier with which the Secretary has contracted to administer
the Part B Program may make payment for services only on the basis of
an itemized bill submitted by the beneficiary or by an assignee of the
Medicare reimbursement claim (generally, the physician or other person
who furnished the services).  42 U.S.C. 1395u(b)(3)(B)(i) and (ii).
The limited review mechanism Congress has provided is triggered by the
submission of this "request for payment" (42 U.S.C. 1395u(b)(3)(C)).
42 C.F.R. 405.251, 405.252, 405.803.

   If the carrier denies the request for payment and the amount in
controversy is $100 or more, the claimant is entitled to "an
opportunity for a fair hearing by the carrier." 42 U.S.C.
1395u(b)(3)(C).  From the outset of the Medicare Program, the
Secretary's regulations implementing this statutory hearing
requirement have provided that the carrier hearing officer is bound by
implementing regulations, instructions and other guidance issued by
HCFA.  42 C.F.R. 405.860.  Those regulations also have provided from
the outset that the hearing officer's decision is "final and binding
upon all parties to the hearing" (42 C.F.R. 405.835;  see 42 U.S.C.
405(h)).  This "final and binding" effect necessarily applies to the
interpretation and application of provisions of the Act, regulations
and HCFA instructions on which the decision is based.  /4/

   There is no provision in 42 U.S.C. 1395u(b)(3)(C) for review by the
Secretary of the carrier's decision on an individual claim.  See 42
C.F.R. 405.502(d).  There also is no provision in that section for
judicial review of the carrier's decision or of regulations issued by
the Secretary that might have affected that decision.  Thus, nothing
in 42 U.S.C. 1395u(b)(3)(C) -- the only section of the Act
specifically dealing with review of claims under Part B -- supports a
right to judicial review under Part B.

   2. The only provisions for judicial review at the behest of a
beneficiary under the Medicare Program are contained in a different
section of the Act, 42 U.S.C. 1395ff.  In Subsection (a) of 42 U.S.C.
1395ff, Congress provided for the Secretary to determine whether an
individual is entitled to participate in the Part A and Part B
Programs and to determine "the amount of benefits under Part A . . ."
A person who is dissatisfied with the Secretary's decision regarding
his right to participate in either Part A or Part B is entitled to an
administrative hearing pursuant to 42 U.S.C. 405(b) and to judicial
review pursuant to 42 U.S.C. 405(g), without regard to the amount in
controversy.  42 U.S.C. 1395ff(b)(1)(A) and (B).  A person who is
dissatisfied with the Secretary's determination regarding the "amount
of benefits under Part A" also has a right to administrative and
judicial review pursuant to 42 U.S.C. 405(b) and (g), but only if the
amount in controversy is at least $100 and $1,000, respectively.  42
U.S.C. 1395ff(b)(1)(C) and (2).  However, 42 U.S.C. 1395ff
conspicuously fails to provide a corresponding right to judicial
review of the "amount of benefits" under Part B.  As the Court
observed in Erika, "(i)n the context of the statute's precisely drawn
provisions, this omission provides persuasive evidence that Congress
deliberately intended to foreclose further review of such claims." 456
U.S. at 208.  See also Block v. Community Nutrition Institute, No.
83-458 (June 4, 1984), slip op. 6.  /5/

   3. The legislative history "confirms" and "explains (the) logic" of
this preclusion of review.  Erika, 456 U.S. at 208.  The Senate Report
on the original Medicare Act described the operation of 42 U.S.C.
1395ff as follows (S. Rep. 404, 89th Cong., 1st Sess. 54-55 (1965)
(emphasis added)):

      Hearings and judicial review are . . . provided for where an
      individual is dissatisfied with a determination as to the amount
      of benefits under the (Part A) hospital insurance plan if the
      amount in controversy is $1,000 or more.  (Under the
      supplementary plan (Part B), carriers, not the Secretary, would
      review beneficiary complaints regarding the amount of benefits,
      and the bill does not provide for judicial review of a
      determination concerning the amount of benefits under part B
      where claims will probably be for substantially smaller amounts
      than under part A.) . . . It is intended that the remedies
      provided by these review procedures will be exclusive.

See also H.R. Rep. 213, 89th Cong., 1st Sess. 47 (1965).

   Congress reiterated this intent in 1972, when it amended 42 U.S.C.
1395ff to make clear the judicial review is not available on questions
of coverage or benefit amounts, unless the claim arises under Part A
and the amount in controversy is at least $1,000.  /6/ Senator
Bennett, the sponsor, stated that the amendment was intended to ensure
that 42 U.S.C. 1395ff "is not interpreted to mean (that the
beneficiary) can take the question of the Federal claim to court" and
to confirm "the original intention of the law that the courts can
determine only eligibility (to participate in Part A or Part B)" (118
Cong. Rec. 33992 (1972)).  The Conference Report likewise stated with
respect to the 1972 amendment (H.R. Conf. Rep. 92-1605, 92d Cong., 2d
Sess. (1972) (emphasis added)):

      The Senate amendment added a new section to the House bill which
      would make clear that there is no authorization for an appeal to
      the Secretary or for judicial review on matters solely involving
      amounts of benefits under Part B, and that insofar as Part A
      amounts are concerned, appeal is authorized only if the amount
      in controversy is $100 or more and judicial review only if the
      amount in controversy is $1,000 or more.

   As the Court observed in Erika, these expressions of legislative
intent "unambiguously support" an interpretation of Section 1395ff
that bars all judicial review of matters concerning the "amount of
benefits" under Part B.  The Court adhered to this view in Ringer and
held that judicial review was entirely foreclosed insofar as that case
arose under Part B.  Ringer, slip op. 5 n.4.  See also Lindahl v. OPM,
No. 83-5954 (Mar. 20, 1985), slip op. 21 n.28 (the legislative history
discussed in Erika confirms "Congress' intent absolutely to preclude
review").

   4. This case falls squarely within the preclusion of review that
Congress intended, because it unquestionably concerns the "amount of
benefits under Part B" (H.R. Rep. 213, supra, at 47;  H.R. Conf. Rep.
92-1605, supra, at 61).  Respondents challenge the particular
prevailing charge screens that BC/BSM has applied to services by
certain family physicians.  The prevailing charge level establishes a
ceiling on the "reasonable charge" for the services of such
physicians.  42 U.S.C. 1395u(b)(3).  Because the amount of benefits
payable under Part B is 80% of the reasonable charge, respondents'
challenge to BC/BSM's prevailing charge ceilings necessarily
constitutes a challenge to the amount of benefits payable on
individual claims under Part B.

   The circumstances of this case also direcly implicate the policy
considerations that underlie the preclusion of review under Part B.
The only illustration the district court offered regarding the effect
of the differing charge screens utilized by BS/BSM concerned the
prevailing fee limitations in the Lansing area, which is the residence
of respondent Diedrich, a Part B beneficiary.  The district court
observed that the prevailing charge in the case of an initial
comprehensive visit was $50 for specialists and $25 for
non-specialists, and in the case of a follow-up visit was $12.30 for
specialists and $10.70 for non-specialists.  Pet.App. 32a.  As a
result in many instances the net effect of the separate charge screens
was $1.60 per visit.  These are precisely the sort of "quite minor"
and "trivial" disputes under the Part B program that Congress intended
to keep out of the courts.  Erika, 456 U.S. at 209, 210 n.13, quoting
118 Cong. Rec. 33992 (1972) (remarks of Sen. Bennett).

   5. Even if, contrary to this Court's holding in Erika and Ringer,
respondents were correct that Congress has not entirely foreclosed
judicial review of all matters bearing on the calculation of the
amount of benefits under Part B, it nevertheless is clear that
Congress did not intend to permit a Part B beneficiary or his assignee
to seek judicial review of the "prevailing charge" aspect of benefit
amount determinations.

   a. The establishment of the prevailing charge levels for various
services in a particular locality depends on the gathering and
analysis of legislative facts, including an expert judgment regarding
what services are sufficiently similar to be grouped together for
these purposes.  "'(T)he proper amount of these charges is a matter
pecularly suited to determination by a specialized agency,'" and
judicial review of such determinations would "involve the courts in
the complex and detailed task of 'ascertaining the appropriate medical
charges for technical services -- based on facts which vary from
community to community'" (Kechijian v. Califano, 621 F.2d 1, 3 (1st
Cir. 1980), quoting St. Louis University v. Blue Cross Hospital
Service, 537 F.2d 283, 289 (8th Cir.), cert. denied, 429 U.S. 977
(1976)).  There is no reason to believe that Congress intended to
permit an individual beneficiary or his physician to challenge such
determinations in court.  Cf. Heckler v. Campbell, 461 U.S. 458,
467-468 (1983).  /7/

   b. The language of 42 U.S.C. 1395u(b)(3) in fact demonstrates that
Congress did not intend that result.  As explained above (see page 6,
supra), Congress amended Section 1395ff in 1972 to impose a ceiling on
the "reasonable charge" for particular services.  The ceiling is the
prevailing charge level that, "on the basis of statistical data and
methodology acceptable to the Secretary," would cover 75% of the
customary charges made for similar services in the locality during the
preceding calendar year.  The very regulation respondents challenge in
this suit, 42 C.F.R. 405.504(b), expressly authorizes a carrier to
utilize separate charge screens to calculate the prevailing charge
level, and that methodology therefore plainly is "acceptable to the
Secretary" within the meaning of 42 U.S.C. 1395u(b)(3).  The quoted
passage makes clear that general oversight by the Secretary was the
means Congress chose to assure that carriers properly implement the
statutory and regulatory provisions that address the complex
calculation of prevailing charge levels.  Congress deemed it
sufficient that the carrier's statistical data and methodology be
"acceptable to the Secretary";  it did not contemplate intervention by
the courts.

   c. Congress's recent enactment of the prospective payment system
under the Part A Medicare Program provides a further indication that
Congress did not intend to permit judicial review of the prevailing
charge level under Part B.  Under the new prospective payment system,
Congress directed the Secretary to establish diagnosis related groups
(DRGs).  Payment for service within each DRG then is to be made at a
flat rate, generally without regard to a particular provider's actual
cost experience.  See 42 U.S.C. (Supp. 1) 1395ww(d).  Although a
provider retains the right to administrative and judicial review under
42 U.S.C. 1395oo with respect to the amount it will be reimbursed
under Part A if the amount in controversy is $10,000 or more, Congress
expressly foreclosed administrative or judicial review under 42 U.S.C.
1395oo (or otherwise) of the Secretary's "establishment of diagnosis
related groups (and) of the methodology for the classification of
discharges within such groups." 42 U.S.C. (Supp. I) 1395ww(d)(7)(B).
See also 42 U.S.C. (Supp. I) 1395oo(g)(2).  The legislative history
explains that Congress precluded review "because of the complexity of
such action and the necessity of maintaining a workable payment
system" (H.R. Rep. 98-25, 98th Cong., 1st Sess. 143 (1983)).  See also
S. Rep. 98-23, 98th Cong., 1st Sess. 57 (1983)).

   These same considerations weigh heavily against judicial review of
prevailing charge screens under Part B.  The determination in the Part
B Program of what services are "similar" for purposes of grouping them
together under the same prevailing charge screen is directly analogous
to the establishment of DRGs in the Part A Program and the
classification of services within DRGs.  The fact that Congress
expressly foreclosed judicial review of determinations under Part A
that depend on the ascertainment and analysis of legislative facts,
even though it otherwise has afforded providers a right to
administrative and judicial review under Part A, confirms that
Congress did not intend to allow judicial review of prevailing charge
level limitations under the Part B Program, in which Congress has
completely foreclosed judicial review.

 B. The Court Of Appeals' And Respondents' Efforts To Avoid 42 U.S.C.
1395ff And The Holdings In Erika And Ringer Are Without Merit

   In its original opinion finding jurisdiction in this case, the
court of appeals candidly conceded that it was following the lead of
other courts of appeals that, even "(i)n the wake of Erika, . . .
ha(d) strenuously endeavored to find jurisdiction over various types
of challenges to the procedural aspects of the Medicare part B program
despite the language of (42 U.S.C.) 1395ff" (Pet. App. 8a).  The court
relied in particular on Ringer v. Schweiker, 697 F.2d 1291 (9th Cir.
1982), and Starnes v. Schweiker, 715 F.2d 134 (4th Cir. 1983). See
Pet. App. 8a, 9a, 10a, 11a.  The court of appeals cited those
decisions for the proposition that although 42 U.S.C. 1395ff and Erika
preclude judicial review of the actual amount of reimbursement in a
particular case, they do not bar judicial review of the "mechanism"
utilized by the carrier to determine the amount of reimbursement or
the actions of the Secretary in the administration of the Part B
Program (such as her promulgation of the regulation at issue in this
case).  See Pet. App. 8a-9a, 10a-11a.

   Of course, subsequent to the court of appeals' original opinion,
this Court reversed the Ninth Circuit's decision in Ringer. It also
vacated the Fourth Circuit's decision in Starnes and remanded that
case for further consideration in light of Ringer.  See Heckler v.
Starnes, No. 83-1149 (June 4, 1984).  The Fourth Circuit itself then
held in Starnes that Ringer required dismissal of the case for lack of
jurisdiction.  Starnes v. Schweiker, 748 F.2d 217 (1984), cert.
denied, No. 84-1309 (Apr. 15, 1985).  The precedential support the
court of appeals once perceived for its attempt to distinguish Erika
therefore has been eliminated.  See also Hatcher v. Heckler, 772 F.2d
427, 429-430 (8th Cir. 1985).  In any event, as we explain below,
Erika itself made clear that the preclusion of review in 42 U.S.C.
1395ff applies to challenges to the manner in which the reasonable
charge is calculated as well as challenges to the precise amount of
benefits in a particular case, and Ringer confirms that
interpretation.

   1. This case is indistinguishable from Erika in all material
aspects.  In Erika, the plaintiff challenged the carrier's decision to
calculate the prevailing charge level on the basis of prices charged
at the beginning of the preceding calendar year, without taking into
account subsequent price increases.  The plaintiff contended that this
approach was inconsistent with the statutory requirement in 42 U.S.C.
1395u(b)(3) that the prevailing charge level be calculated on the
basis of "customary charges made for similar services in the same
locality during the last preceding calendar year" (emphasis added).
See 456 U.S. at 204-205 & n.2;  Erika, Inc. v. United States, 634 F.2d
580, 588-589 (Ct. Cl. 1980).  This Court, however, unanimously held
that judicial review was barred.  456 U.S. at 206-211.  Like the
plaintiff in Erika, respondents challenge the carrier's determination
of the prevailing charge level.  The only difference is that
respondents take issue with the carrier's identification of which
services are "similar" for purposes of that calculation, while in
Erika the challenge was to the timing of the calculation.  This
difference has no bearing on the availability of judicial review.
Erika therefore squarely controls this case.

   2. Respondents next argue (Br. in Opp. 11, 12, 15, 16, 17) that 42
U.S.C. 1395ff should not be construed to preclude judicial review of
what they term "statutory" issues that may arise in connection with
the carrier's determination and payment of benefits.  This assertion
also is foreclosed by Erika and Ringer.  As we have just explained,
the plaintiff in Erika contended that the carrier's formulation of the
prevailing charge screen was contrary to the Social Security Act (456
U.S. at 205;  634 F.2d at 588-591), but this Court nevertheless held
that judicial review was foreclosed.  Similarly, the plaintiffs in
Ringer contended that the Secretary's instructions that required the
carrier to refuse to pay any amount of benefits for BCBR surgery
violated the Social Security Act and the Administrative Procedure Act
(see Ringer, slip op. 7 & n.7), but this Court nevertheless held that
judicial review was foreclosed under 42 U.S.C. 1395ff and Erika
insofar as the case concerned the Part B Program (Ringer, slip op. 5
n.4).  /8/

   3. Nor can respondents avoid the foreclosure of review under 42
U.S.C. 1395ff and Erika and Ringer by characterizing this suit as a
challenge to a regulation issued by the Secretary, rather than to the
amount of benefits paid by the carrier.  This conclusion is evident
from the structure of 42 U.S.C. 1395ff.  In 42 U.S.C. 1395ff(b),
Congress has authorized judicial review of the "amount of benefits
under part A." That amount is to be determined "in accordance with
regulations prescribed by (the Secretary)." 42 U.S.C. 1395ff(a).  On
judicial review pursuant to 42 U.S.C. 1395ff(b), the beneficiary may
challenge the validity of any such regulations that limit the amount
of benefits paid on the claim or that guide the fiscal intermediary or
the ALJ in computing that amount.  See Ringer, slip op. 10-11, 13.
The corresponding foreclosure of judicial review of the "amount of
benefits" under Part B likewise must apply to challenges to
regulations issued by the Secretary that limit the amount of benefits
that a carrier may pay on a particular Part B claim or that guide the
carrier in calculating the benefit amount.  /9/ Indeed, in order even
to have standing to bring this suit, respondents must rely on the
effect of the challenged regulation on the amount of benefits payable
on individual Part B claims.  Compare Ringer, slip op. 11-12.

   Moreover, in Erika itself, the plaintiff's claim to increased
benefits was based in part on a challenge to instructions issued by
the Secretary that bound the carrier in the same manner as formal
regulations (see Ringer, slip op. 3-4;  42 C.F.R. 405.860) and limited
the amount of benefits the carrier could pay.  See Erika, Inc. v.
United States, 634 F.2d at 590-591.  This Court nevertheless held that
judicial review was unavailable.

   If there were any doubt remaining on this point after Erika, it was
dispelled by Ringer.  That case involved a challenge to a regulation
and HCFA instruction that prohibited the payment of any benefits for a
particular medical service.  Ringer, slip op. 2-5.  Yet the Court held
that judicial review was barred by Erika insofar as the case concerned
the Part B Program.  Ringer, slip op. 5 n.4.  The Court so held even
though the plaintiffs in Ringer, like respondents herein, did not
actually request the Court to award benefits, but instead sought only
an invalidation of the regulation and instruction that would bind the
carrier in its subsequent adjudication of individual claims for
benefits.  Slip op. 9-10, 12.  Because the Court in Ringer explicitly
relied on Erika, which in turn relied on the foreclosure of review in
42 U.S.C. 1395ff, the court of appeals in this case was simply
mistaken when it stated in its most recent opinion that "(i)n reaching
its decision in (Ringer), the Supreme Court did not rely on Section
1395ff" (Pet. App. 18a n.2).  And this error might explain the court
of appeals' otherwise inexplicable assertion that its jurisdictional
holding did not conflict with Ringer (id. at 22a).

 II. THE EXERCISE OF JURISDICTION UNDER 28 U.S.C. 1331 OVER CLAIMS
ARISING UNDER THE MEDICARE PROGRAM IS BARRED BY 42 U.S.C. 405(h)

   The correctness of the result indicated by 42 U.S.C. 1395ff
standing alone -- that judicial review of a regulation affecting the
amount of benefits under Part B is foreclosed because it is not
expressly authorized by the Social Security Act -- is confirmed by 42
U.S.C. 405(h).  /10/

 A. This Court's Decisions In Salfi And Ringer Establish That Section
405(h) Bars Federal Question Jurisdiction In This Case

   1. The second sentence of Section 405(h) provides that "(n)o
findings of fact or decision of the Secretary shall be reviewed by any
person, tribunal, or governmental agency except as herein provided"
(emphasis added).  This sentence embodies a general rule under the
Social Security Act that judicial review of administrative decisions
on claims for benefits is unavailable except where expressly
authorized by that Act.  Salfi, 422 U.S. at 759 n.6;  Califano v.
Sanders, 430 U.S. 99, 110 (1977) (Stewart, J., concurring).  Under the
Part B Medicare Program, the carriers render decisions on behalf of
the Secretary (see McClure, 456 U.S. at 190), and the Secretary is the
real party in interest in any litigation (Erika, 456 U.S. at 206 n.4,
quoting 42 C.F.R. 421.5(b)).  The preclusion of review in the second
sentence of 42 U.S.C. 405(h) therefore applies to decisions by the
carriers under Part B.  Because Congress has not affirmatively
provided in the Social Security Act itself for review by a judicial
"tribunal" of the carrier's decisions under Part B, the second
sentence of Section 405(h) precludes such review.

   2. The third sentence of Section 405(h) further provides that "(n)o
action against the . . . Secretary . . . shall be brought under
section() 1331 . . . of title 28 to recover on any claim arising under
this subchapter." The court of appeals' holding that the district
court had jurisdiction under 28 U.S.C. 1331 directly contravenes this
"sweeping and direct" jurisdictional bar as well (Salfi, 422 U.S. at
757).

   a. In its original opinion, the court of appeals was of the view
that Section 405(h) and Salfi did not bar jurisdiction under 28 U.S.C.
1331 because this case "involves not a challenge to an individual
amount of reimbursement, but instead a challenge to a regulation by
the Secretary establishing the precedure under which reimbursement
schedules should be determined" (Pet. App. 10a).  This narrow view of
the reach of Section 405(h) was demonstrably incorrect even at the
time the court of appeals rendered its first opinion.

   This Court's construction of the third sentence of Section 405(h)
in Salfi was not dependent upon the fact that the plaintiffs sought an
actual award of benefits.  The plaintiffs in Salfi also sought a
declaratory judgment that the statutory provisions were
unconstitutional and injunctive relief prohibiting the Secretary from
relying on those provisions to deny benefits in administrative
proceedings (App. at 12-13, Weinberger v. Salfi, supra), but the Court
did not find jurisdiction under 28 U.S.C. 1331 over those aspects of
the case either.  422 U.S. at 764.  See Ringer, slip op 12.  Salfi
thus made clear that Section 405(h) does not permit a beneficiary to
split off one legal issue bearing on the merits of his claim for
benefits and present that issue in an independent action for
declaratory or injunctive relief under 28 U.S.C. 1331, so that he then
can pursue his reimbursement claim in administrative proceedings armed
with the juducial ruling on the discrete legal issue.  /11/

   Nor had there been any suggestion by this Court that the
jurisdictional bar in Section 405(h) was inapplicable to challenges
that are "procedural" in nature.  To the contrary, the Court made
clear in Mathews v. Eldridge, 424 U.S. 319, 327 (1976), that Section
405(h) barred federal question jurisdiction over the challenge in that
case to the procedures used to terminate disability benefits.  See
Ringer, slip op. 11;  Ellis v. Blum 643 F.2d 68, 77-78 (2d Cir. 1981).
 See also Califano v. Yamasaki, 442 U.S. 682, 697-698 (1979).

   b. There is no need to consider further the plausibility of the
court of appeals' efforts in its first opinion to avoid Section 405(h)
and Salfi, because this Court's subsequent decision in Ringer
explicitly rejected the views advanced by the court of appeals in that
opinion.

   In Ringer, the Court held that Section 405(h) barred the bringing
of an action under 28 U.S.C. 1331 to challenge instructions and a
formal ruling issued by the Secretary.  Slip op. 10-12, 16-23.  The
Ninth Circuit in Ringer, like the Sixth Circuit in this case, had held
that the plaintiffs' challenge to the instructions and ruling was
"procedural" in nature and therefore was not barred by Section 405(h).
 This Court, however, explicitly "disagree(d) with the Court of
Appeals' separation of the particular claims . . . into 'substantive'
and 'procedural' elements" and "disagree(d) in particular with its
apparent conclusion that simply because a claim somehow can be
construed as 'procedural,' it is cognizable in federal district court
by way of federal question jurisdiction." Ringer, slip op. 11.  The
Court held that "to be true to the language of the statute, the
inquiry in determining whether Section 405(h) bars federal question
jurisdiction must be whether the claim 'arises under' the Act, not
whether it lends itself to a 'substantive' rather than a 'procedural'
label." Slip op. 11.  There can be no question in this case that
respondents' claim that the Secretary's regulation violates the Social
Security Act is a claim "arising under" that Act, irrespective of the
"procedural" label respondents attach to their argument.

   Ringer likewise rejected the court of appeals' notion that Section
405(h) does not apply where, as here, the plaintiffs do not seek an
actual award of benefits or seek review of an administrative decision
on a particular claim.  The Court explicitly held in Ringer that
"(i)tis of no importance that respondents here, unlike the claimants
in Weinberger v. Salfi, supra, sought only declaratory and injunctive
relief and not an actual award of benefits as well." Slip op. 12.
Relying on Salfi, the Court held that federal question jurisdiction
was barred by Section 405(h) because the source for "'both the
standing and the substantive basis for the presentation' of the claims
was the Social Security Act" (slip op. 11-12, quoting Salfi, 422 U.S.
at 760-761).  Respondents' claims in this case clearly are barred
under this "broad test" of the reach of Section 405(h) (Ringer, slip
op. 12).

   The court of appeals also sought in its first opinion to
distinguish Salfi and its progeny on the ground that juducial review
was in any event available in those cases under 42 U.S.C. 405(g).  The
court of appeals reasoned that if Section 405(h) were read to bar
federal question jurisdiction under the Part B Medicare Program,
judicial review would be entirely foreclosed, because 42 U.S.C. 405(g)
is not available as an alternative avenue for judicial review under
Part B.  The court was unwilling to give that effect to Section
405(h).  See Pet. App. 10a.  Thereafter, however, this Court in Ringer
explicitly rejected the proposition that the meaning of Section 405(h)
somehow shifts depending on whether review is available under Section
405(g).  Ringer, slip op. 19.

   c. Following this Court's remand of the instant case for further
consideration in light of Ringer, the court of appeals recited most of
the controlling aspects of Ringer just discussed (Pet. App. 19a-20a).
But in a single paragraph and without elaboration, the court of
appeals nevertheless reinstated its prior opinion finding jurisdiction
under 28 U.S.C. 1331 (Pet. App. 22a).  This holding regarding the
scope of Section 405(h) obviously cannot stand in light of Ringer.

   In contrast to the decision below, other courts of appeals have
recognized that, in light of Ringer, Section 405(h) removes
jurisdiction under 28 U.S.C. 1331 in a case such as this.  See Hatcher
v. Heckler, 772 F.2d at 430-432;  American Federation of Home Health
Agencies, Inc. v. Heckler, 754 F.2d 896, 897-898 (11th Cir. 1984);
Ganem v. Heckler, 746 F.2d 844, 848 (D.C. Cir. 1984);  Smith v. North
Louisiana Medical Review Ass'n, 735 F.2d 168, 171-172 (5th Cir. 1984).
 Indeed, the Sixth Circuit itself recently recognized in a Part A
Medicare case that Section 405(h) bars jurisdiction under 28 U.S.C.
1331 over a suit challenging the method by which reimbursement is
determined.  Good Samaritan Medical Center v. Secretary of Health &
Human Services, No. 84-3923 (Nov. 7, 1985), slip op. 5-7.  The court
distinguished its holding in the instant case on the ground --
explicitly rejected in Ringer -- that there is an "implied exception"
to Section 405(h) where (as under Part B) the Social Security Act
itself does not provide for judicial review.  Slip op. 7.

 B. The Jurisdictional Bar In 42 U.S.C. 405(h) Applies To Suits By
Physicians As Well As Suits By Part B Beneficiaries

   The court of appeals also held on remand that Ringer does not bar a
judicial challenge "by a party other than a claimant for benefits"
(Pet. App. 22a).  Although the court did not explain to whom it was
referring in the quoted phrase, it apparently meant anyone who had not
yet submitted an actual claim for Part B benefits, or at least any of
the respondent physicians who had not done so.  This attempt to
distinguish Ringer is frivolous.

   In Ringer, one of the Part B beneficiaries had not yet had the BCBR
surgery and thus was not in a position to submit a claim for benefits.
 The Court nevertheless held that 42 U.S.C. 405(h) foreclosed the
beneficiary from bringing an action under 28 U.S.C. 1331 to challenge
the Secretary's ruling that barred payment for the surgery.  Slip op.
16-23.  Any respondent in this case who has not submitted a Part B
claim is in precisely the same position as that plaintiff in Ringer,
and his suit under 28 U.S.C. 1331 therefore is equally barred by 42
U.S.C. 405(h).

   Moreover, because it is the beneficiaries who pay premiums to be
insured under the Part B Program and who therefore are most directly
affected by regulations limiting the amount of benefits, it would be
quite anomalous for Congress to permit physicians to obtain judicial
review but to deny such review to beneficiaries.  The Act itself
demonstrates that Congress did no such thing.  The carrier may make
payment to a physician only if the beneficiary has assigned his claim
to the physician.  42 U.S.C. 1395u(b)(3)(B)(ii).  The latter's
interest in the determination of a Part B claim therefore is entirely
derivative of that of the beneficiary.  In recognition of this fact,
the Secretary by regulation has provided that a physician who accepts
an assignment stands in the shoes of the beneficiary and has the same
right to administrative review by the carrier.  42 C.F.R. 405.801(a);
Erika, 456 U.S. at 207 n.7.  But the assignee also is subject to the
same preclusion of judicial review that applies to the beneficiary.
The Court so held in Erika.  There it was the supplier of services,
not the beneficiaries themselves, who sought judicial review (456 U.S.
204), but the Court held that such review was barred.

   This foreclosure of review under Part B is confirmed by a
comparison with the Part A Program.  Congress enacted a separate
mechanism by which a hospital or other Part A provider may obtain
judicial review of the amount of reimbursement it will receive for
services rendered to Medicare beneficiaries.  42 U.S.C. 1395oo(f);
see pages 3-4, supra.  "In the context of the statute's precisely
drawn provisions," the fact that Congress expressly provided for
judicial review for providers under Part A, but not for their
counterparts under Part B, furnishes persuasive evidence that Congress
"deliberately intended to foreclose" judicial review under Part B in
suits brought by physicians.  Erika, 456 U.S. at 208.  See also Block
v. Community Nutrition Institute, slip op. 6.

 III. THE DISTRICT COURT'S EXERCISE OF JURISDICTION IN THIS CASE
CANNOT BE SUPPORTED BY A PRESUMPTION IN FAVOR OF JUDICIAL REVIEW

   In finding that the district court had jurisdiction in this case,
the court of appeals in the end was forced to rely on nothing more
than a "presumption" in favor of judicial review, believing that "for
every right there must be a remedy" (Pet. App. 20a).  But this Court
made clear in Block v. Community Nutrition Institute, supra, that
"(t)he presumption favoring judicial review of administrative action
is just that -- a presumption" (slip op. 8) -- and that it may be
overcome by a consideration of the language, structure, purpose and
legislative history of the statute and the nature of the
administrative action involved (slip op. 5, 8-11).  When the court of
appeals first ruled, this Court already had held in Erika that a
congressional intent to preclude judicial review under Part B was
"persuasive(ly) evidence(d)" by the text of 42 U.S.C. 1395ff and
"unambiguously support(ed)" by its legislative history (456 U.S. at
208, 211).  Subsequently, the Court, without dissent, adhered to that
view in Ringer (slip op. 5 n.4).  These holdings should have been
sufficient for the court of appeals, on remand after Ringer, to
overcome any presumption in favor of judicial review.

   In an effort to establish a jurisdictional toehold, respondents
also insist (Br. in Opp. 11-19) that this case presents the question
whether Congress has foreclosed juducial consideration of
constitutional questions arising in connection with the Medicare
Program.  In their view, there must be a presumption that Congress has
not done so, even in the face of the sweeping and cumulative
preclusions of review in 42 U.S.C. 1395ff and 405(h).  See Br. in Opp.
12-13, 19.  From this premise, respondents argue that the court of
appeals was correct in finding jurisdiction over all aspects of this
suit, statutory as well as constitutional.  This argument is seriously
flawed.

   As we have demonstrated in Points I and II, Congress has
deliberately and unambiguously foreclosed judicial review of all
statutory, procedural, regulatory, and factual issues touching on the
amount of benefits payable under the Part B Medicare Program.  For
this reason, even if respondents were correct that Congress has not
also foreclosed challenges that are framed in constitutional terms,
such a holding would not permit judicial review of the other issues
the courts below reached and decided.  Indeed, the district court and
court of appeals expressly declined to pass on respondents'
constitutional challenge to the differing charge screens.  See Pet.
App. 5a, 13a n.5, 27a-28a, 32a.

   This Court's decision in Schweiker v. McClure, supra, provides no
support for respondents' position.  In McClure, the Court reviewed the
merits of a constitutional challenge to the provisions of the Social
Security Act that provide for carrier hearing officers, rather than
ALJs in the Department of Health and Human Services, to conduct
hearings on Part B claims.  The Court did not address the question of
the district court's jurisdiction to entertain that suit.  But even if
we assume that the Court in McClure believed that 42 U.S.C. 1395ff and
405(h) should not be construed to foreclose a judicial challenge to
the constitutionality of a provision of the Social Security Act itself
(cf. Hatcher v. Heckler, 772 F.2d at 431-432 n.7;  compare Salfi, 422
U.S. at 762;  Johnson v. Robison, 415 U.S. 361, 366-367 (1974)), that
assumption would not assist respondents here.  Respondents do not
challenge the constitutionality of any provision of the Social
Security Act.  They challenge only the constitutionality of one
carrier's method of calculating the reasonable charge for particular
services, in conformity with a regulation issued by the Secretary.
McClure, Salfi and Johnson do not indicate that it might be
unconstitutional for Congress to foreclose judicial review of
constitutional objections to such administrative determinations.

   There is no need to resolve that question in this case, however,
because here, as in Ringer (slip op. 5 n.4), respondents'
constitutional contentions are in any event too insubstantial to
support subject matter jurisdiction.  See Hagans v. Lavine, 415 U.S.
528, 536-538 (1974).  A classification under an Act of Congress
providing for the distribution of benefits must be sustained against
an equal protection challenge unless the varying treatment of
different groups is so unrelated to the achievement of a legitimate
governmental purpose as to be irrational or patently arbitrary.  See,
e.g., Schweiker v. Wilson, 450 U.S. 221, 230 (1981);  United States
Railroad Retirement Board v. Fritz, 449 U.S. 166, 174-177 (1980);
Flemming v. Nestor, 363 U.S. 603, 611 (1960).  See also City of
Cleburne v. Cleburne Living Center, Inc., No. 84-468 (July 1, 1985),
slip op. 13;  Vance v. Bradley, 440 U.S. 93, 97 (1979).  The Part B
Medicare Program was established to "provide medical insurance
benefits" (42 U.S.C. 1395j) that are calculated, in general, on the
basis of 80% of the "reasonable charge" for covered services (42
U.S.C. 1395l(a)(1)).  In determining whether a charge is "reasonable,"
the carrier is to refer to the prevailing charge for similar services
in the community.  42 U.S.C. 1395u(b)(3).

   The regulation respondents challenge implements these statutory
principles.  It is based on the wholly unremarkable proposition that
"(t)he range of prevailing charges in the locality may be different
for physicians . . . who engage in a specialty practice or service
than for others," and it accordingly permits a carrier to develop more
than one range of prevailing charges that reflect "(e)xisting
differentials in the level of charges between different kinds of
practice or service" (42 C.F.R. 405.504(b)).  Because the regulation
thus provides for differing charge screens based on existing
differentials in charging practices, it is, beyond question,
rationally related to the legitimate purpose of the Part B Program to
provide insurance benefits that are based on the pattern of charges in
the community.  Respondents' constitutional challenge to the
authorization in 42 C.F.R. 405.504(b) for the creation of separate
charge screens therefore is wholly insubstantial.  /12/

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   ANTHONY J. STEINMEYER

   HAROLD J. KRENT

      Attorneys

   NOVEMBER 1985

   /1/ The calculation of payments under Part A has been revised by
Section 1886 of the Act, 42 U.S.C. (& Supp. I) 1395ww.  That Section
institutes a prospective payment system under which providers are
reimbursed at a flat rate for each service.  See Heckler v. Redbud
Hospital Dist., No. A-32 (July 24, 1985), slip op. 1-2 (Rehnquist,
Circuit Justice).  Under the new payment system, the rights of
beneficiaries and providers to administrative and judicial review
still are governed by 42 U.S.C. 1395ff and 1395oo, although Congress
has restricted a provider's right of review in several respects.  See
42 U.S.C. (Supp. I) 1395ww(d)(7)(B), 1395oo(g)(2), discussed at pages
27-28, infra.

   /2/ The government acknowledged in district court that, under
standards in effect at the time of trial, Board-eligible family
physicians also should be included in the specialist category (Pet.
App. 27a).

   /3/ Respondents also alleged that the differing treatment of family
physicians violated their Fifth Amendment rights to equal protection
and substantive due process (J.A. 22-24) and violated their Fifth
Amendment right to procedural due process by creating an irrebuttable
presumption that their services were worth less than those of other
physicians (J.A. 24-26).  The district court and court of appeals did
not reach these constitutional questions.  Pet. App. 5a, 13a n.5,
22a-28a, 32a.

   /4/ The regulations that require the carrier hearing officer to
follow the Secretary's regulations, instructions and policies and
declare his decision to be "final and binding" were promulgated in
1967 (43 Fed. Reg. 18028) and remained in effect in 1972.  See 20
C.F.R. 405.835, 405.860 (1971).  In that year, Congress amended 42
U.S.C. 1395u(b)(3)(C) to add the $100 amount-in-controversy
prerequisite for entitlement to a hearing by the carrier (see Pub. L.
No. 92-603, Section 262, 86 Stat. 1448) and amended 42 U.S.C. 1395ff
to reaffirm the preclusion of judicial review under Part B except with
respect to an individual's entitlement to enroll in the Part B Program
(see Pub. L. No. 92-603, Section 299o(a), 86 Stat. 1464, discussed at
pages 23-24, infra).  Because Congress in 1972 revisited the Part B
Program generally and revised other aspects of the review procedures
under Part B -- but left in place the regulatory provisions just
discussed -- the 1972 amendments may properly be viewed as a
congressional ratification of the provisions making the carrier's
application of regulations and instructions "final and binding" on the
claimant.  Lindahl v. OPM, No. 83-5954 (Mar. 20, 1985), slip op. 12 &
n.15;  Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353,
378-382 (1982).

   /5/ Congress also has afforded a beneficiary a right to judicial
review on questions of coverage in certain limited circumstances under
42 U.S.C. 1320c-4, if the amount in controversy is $2000 or more.
That Section applies where a peer review organization, pursuant to
contract with the Secretary, has determined that certain medical
services are not covered by Medicare because they are or were
custodial or not reasonable and necessary, or where services are
proposed to be furnished in a hospital when they could be furnished as
effectively but more economically on an out-patient basis.  42 U.S.C.
1320c-3(a)(1) and (2).  This peer review system has been implemented
to date only with respect to services furnished in a hospital or other
institution (50 Fed. Reg. 15364 (1985)).  Although some Part B
services may be affected by the new peer review procedures, there is
no right to judicial review under 42 U.S.C. 1320c-4 on the question of
the amount of benefits payable for services that are found to be
covered.

   /6/ Some courts had construed the Act as originally passed in 1965
(see 42 U.S.C. (1970 ed.) 1395ff (b)) to permit judicial review of
coverage questions under Parts A and B without regard to the amount in
controversy.  See, e.g., Ridgely v. Secretary of Dep't of Health,
Education & Welfare, 345 F. Supp. 983, 986-988 (D. Md. 1972), aff'd,
475 F.2d 1222 (4th Cir. 1973);  Bohlen v. Richardson, 345 F. Supp. 124
(E.D. Pa. 1972), aff'd, 483 F.2d 918 (3d Cir. 1973);  Cardno v. Finch,
311 F. Supp. 251 (E.D. La. 1970).  See also Erika, 456 U.S. at 209 &
n.12.

   /7/ It also is essential that the annual prevailing charge screens
be established promptly so that they can be applied to the processing
of individual claims at the beginning of each fiscal year.  Permitting
judicial challenges to the prevailing charge screens would
substantially undermine the need for expedition and create uncertainty
regarding the payment of vast numbers of claims.  Cf. Morris v.
Gressette, 432 U.S. 491 (1977).

   /8/ Respondents' submission in this regard also is inconsistent
with the legislative history of the 1972 amendments to 42 U.S.C.
1395ff.  As we have explained (see note 6, supra), some courts had
held prior to 1972 that 42 U.S.C. 1395ff did not foreclose judicial
review on questions of coverage under Part A or Part B, as
distinguished from the amount of benefits payable.  One court that had
so held in a Part B case sought to justify this result in part on the
ground that questions of coverage are more likely to present issues of
statutory construction appropriate for judicial resolution.  See
Bohlen v. Richardson, 345 F. Supp. at 130;  483 F.2d at 921 & n.13.
When Congress amended 42 U.S.C. 1395ff in 1972 to overrule this and
other decisions and preclude review on questions of coverage, it
necessarily rejected the notion that judicial review is available
under Part B with respect to claims for benefits that are couched as
issues of statutory construction.

   /9/ As this Court observed in Ringer (slip op. 13), the
determination by the Secretary whether to promulgate a generally
applicable rule to resolve a particular issue, or instead to permit
individual adjudication of that question by the carriers or fiscal
intermediaries, is a matter committed to the Secretary's discretion.
The availability of judicial review should not depend on whether the
Secretary has chosen to issue a regulation on a particular issue or
instead to leave the matter to case-by-case adjudication by the
carriers.

   /10/ By virtue of 42 U.S.C. 1395ii, Section 405(h) is made
applicable to the Medicare Program "to the same extent" as it is
applicable to Title II of the Act.

   /11/ At the time of the court of appeals' first decision, a number
of other courts of appeals had read Salfi to prevent a claimant from
seeking to establish his future entitlement to benefits in a separate
action under 28 U.S.C. 1331.  See, e.g., Attorney Registration &
Disciplinary Comm'n v. Schweiker, 715 F.2d 282, 287 (7th Cir. 1983);
V.N.A. of Greater Tift County, Inc. v. Heckler, 711 F.2d 1020,
1024-1027 (11th Cir. 1983), cert. denied, 466 U.S. 936 (1984);  Hadley
Memorial Hospital, Inc. v Schweiker, 689 F.2d 905, 908-910 (10th Cir.
1982);  Humana of South Carolina, Inc. v. Califano, 590 F.2d 1070,
1074-1076, 1079 (D.C. Cir. 1978);  Rhode Island Hospital v. Califano,
585 F.2d 1153, 1158 (1st Cir. 1978);  Dr. John T. MacDonald
Foundation, Inc. v. Califano, 571 F.2d 328, 331-332 (5th Cir.) (en
banc), cert. denied, 439 U.S. 893 (1978).

   /12/ Respondents also argued in district court that the differing
charge screens create an unconstitutional irrebuttable presumption
that services rendered by family physicians are worth less than those
of other physicians (J.A. 24-26).  This contention is frivolous.  The
Act does not deem the actual "worth" of any individual physician's
services to be dispositive of the question of the amount of benefits
payable for those services, but then prohibit the claimant from
introducing evidence on that question.  The system of prevailing
charge screens by definition is based on the creation of categories of
similar services that are not dependent upon the circumstances of any
particular claimant.  Such a system plainly creates no
unconstitutional irrebuttable presumption under this Court's
decisions.  See Salfi, 422 U.S. at 772-774;  United States v. Locke,
No. 83-1394 (Apr. 1, 1985), slip op. 18.

                               APPENDIX