Inova Alexandria Hos v. Shalala

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

INOVA ALEXANDRIA HOSPITAL, 

Plaintiff-Appellant,

v.

DONNA E. SHALALA, Secretary,  No. 00-1409

Department of Health and Human

Services,

Defendant-Appellee.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Gerald Bruce Lee, District Judge.

(CA-99-1102-A)

Argued: November 2, 2000

Decided: March 26, 2001

Before WILLIAMS and MICHAEL, Circuit Judges, and

Joseph F. ANDERSON, Jr., Chief United States District Judge

for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge Michael wrote the opinion, in

which Judge Williams and Chief Judge Anderson joined.

COUNSEL

ARGUED: Edith Sophia Marshall, POWERS, PYLES, SUTTER &

VERVILLE, P.C., Washington, D.C., for Appellant. Janet Rehnquist,

Assistant United States Attorney, Alexandria, Virginia, for Appellee.

2 INOVA ALEXANDRIA HOSP. v. SHALALA

ON BRIEF: Helen F. Fahey, United States Attorney, Alexandria,

Virginia, for Appellee.

OPINION

MICHAEL, Circuit Judge:

Inova Alexandria Hospital (the Hospital) contested its Medicare

reimbursement for 1994 by filing an administrative appeal with the

Provider Reimbursement Review Board (the Board) of the U.S.

Department of Health and Human Services (HHS). The Board dis-

missed the appeal because the Hospital failed to file certain papers on

time. The Hospital then challenged the Board’s dismissal by suing the

Secretary of HHS in federal court. The district court reviewed the

Board’s dismissal decision on the merits and granted summary judg-

ment to HHS. We are presented with two questions: (1) whether the

Hospital is entitled to judicial review and (2) whether, if judicial

review is available, the Board acted properly in dismissing the Hospi-

tal’s administrative appeal. We conclude that the Hospital is entitled

to judicial review, but after considering the merits we affirm the

award of summary judgment to HHS.

I.

The Hospital is a Medicare provider. To be reimbursed for the ser-

vices it furnishes to Medicare beneficiaries, the Hospital submits an

annual cost report to its fiscal intermediary (or paying agent), Trigon

Blue Cross and Blue Shield (Trigon). As a fiscal intermediary Trigon

acts under contract with the Secretary of HHS. See 42 U.S.C.

§ 1395h. This case arises out of Trigon’s disallowance in August

1996 of a portion (about $290,000) of the Hospital’s requested reim-

bursement for fiscal year 1994. In January 1997 the Hospital filed a

timely appeal of Trigon’s determination to the Board. (The appeal

document was a request for a hearing before the Board. See 42 U.S.C.

§ 1395oo.) In July 1997 the Board sent a letter to the Hospital, with

a copy to Trigon, setting forth a schedule for submission of position

papers. The letter said that preliminary position papers were due by

November 1, 1998, and final papers by February 1, 1999. In Septem-

INOVA ALEXANDRIA HOSP. v. SHALALA 3

ber 1997 the Board sent a reminder letter to the Hospital that repeated

the briefing schedule and warned that failure to meet the deadlines

would result in dismissal of the appeal.

The Hospital failed to file either a preliminary or a final position

paper. The failure was due to internal confusion at the Hospital in the

wake of a corporate acquisition, specifically, Inova Health System’s

acquisition of the Hospital, which occurred after the appeal was filed

but before the position papers were due. David Eunpu, a hospital

employee, was initially responsible for handling the appeal. After the

acquisition many of Eunpu’s duties changed, and he mistakenly

assumed that someone else would be handling the appeal. Because the

appeal remained Eunpu’s responsibility, the Hospital failed to file the

position papers. Because of this failure, the Board dismissed the Hos-

pital’s appeal. The Hospital requested that the Board reinstate the

appeal on the grounds of innocent and inadvertent mistake, but the

Board denied the request. The Board concluded that "administrative

oversight is not a sufficient basis upon which to reinstate an appeal."

The Hospital next requested that the Health Care Financing Adminis-

tration (HCFA) review the Board’s decision denying the appeal, but

the HCFA declined to undertake any review.

The Hospital thereafter sued HHS in federal court, claiming that

the Board’s actions in dismissing and not reinstating the Hospital’s

administrative appeal were arbitrary and capricious, violated the Hos-

pital’s right to a hearing under the Medicare Act, and violated the Due

Process Clause. The Hospital also asserted that the Board’s rule

regarding the dismissal of appeals is invalid because it was not pro-

mulgated under the APA’s notice and comment procedure. HHS

moved to dismiss for lack of jurisdiction, asserting that the Board’s

actions were discretionary and not subject to judicial review. In the

alternative, HHS moved for summary judgment on the ground that the

Board’s actions were justified in the circumstances. As we read the

district court’s order, the court assumed jurisdiction and then granted

summary judgment to HHS, concluding that the Board acted properly

when it dismissed and refused to reinstate the Hospital’s administra-

tive appeal. The Hospital appeals the district court’s order.

II.

We turn first to the matter of jurisdiction. In district court and in

its brief to us, HHS argued that the Hospital was not entitled to judi-

4 INOVA ALEXANDRIA HOSP. v. SHALALA

cial review of the Board’s decisions relating to the dismissal of the

Hospital’s administrative appeal. At oral argument, however, HHS

conceded that judicial review is available and urged us to affirm on

the merits. Although there is presently no objection to our jurisdic-

tion, we nonetheless believe that the issue should be examined. See

Sigmon Coal Co. v. Apfel, 226 F.3d 291, 299 (4th Cir. 2000) ("We

are duty-bound to clarify our subject matter jurisdiction even if the

parties do not [pursue] it as an issue.").

As the Supreme Court has instructed, "We begin with the strong

presumption that Congress intends judicial review of administrative

action." Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667,

670 (1986). Indeed, the APA provides for review "except to the extent

that (1) statutes preclude judicial review; or (2) agency action is com-

mitted to agency discretion by law." 5 U.S.C. § 701(a). This case

involves the second exception, whether the agency’s action is com-

mitted to its discretion by law. This exception to judicial review is a

"very narrow one," reserved for "those rare instances where statutes

are drawn in such broad terms that in a given case there is no law to

apply." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

402, 410 (1971) (internal quotation marks omitted). There is no law

to apply if "the statute is drawn so that a court would have no mean-

ingful standard against which to judge the agency’s exercise of discre-

tion." Heckler v. Chaney, 470 U.S. 821, 830 (1985). In other words,

judicial review is foreclosed if the "agency action of which plaintiff

complains fails to raise a legal issue which can be reviewed by the

court by reference to statutory standards and legislative intent." Str-

ickland v. Morton, 519 F.2d 467, 470 (9th Cir. 1975). However, even

if the underlying statute does not include meaningful (or manageable)

standards, "regulations promulgated by an administrative agency in

carrying out its statutory mandate can provide standards for judicial

review." CC Distribs., Inc. v. United States, 883 F.2d 146, 154 (D.C.

Cir. 1989) (internal quotation marks omitted).

Here, the Medicare Act provides the Board with broad authority to

develop procedures for provider appeal hearings. Specifically, the Act

grants to the Board "full power and authority to make rules and estab-

lish procedures, not inconsistent with the provisions of this subchapter

or regulations of the Secretary, which are necessary or appropriate to

carry out the provisions of this section." 42 U.S.C. § 1395oo(e).

INOVA ALEXANDRIA HOSP. v. SHALALA 5

Under this authority the Board adopted the following rule: "If [the

provider] fail[s] to submit [a] final position paper to the Board by the

due date, the Board may dismiss the appeal." See Provider Reim-

bursement Manual (PRM) § 2921.4E (1993).1

The question for us is whether there are manageable standards for

judicial review of the Hospital’s claims that the Board erred in dis-

missing the appeal for failure to file timely position papers. For start-

ers, we clearly have manageable standards to review the Board’s

action in connection with three of the Hospital’s claims: (1) that the

Board violated the Due Process Clause, (2) that the Board violated the

Hospital’s right to a hearing under the Medicare Act, and (3) that the

Board’s dismissal rule is invalid because it was not promulgated

under the APA’s notice and comment procedure. We may review the

Hospital’s due process claim because it is well settled that even if

agency action is committed to its discretion by law, a court may still

determine whether the action is constitutional. See, e.g., Padula v.

Webster, 822 F.2d 97, 101 (D.C. Cir. 1987); Garcia v. Neagle, 660

F.2d 983, 988 (4th Cir. 1981). This is because the Due Process Clause

provides a manageable standard that allows for review. We may also

review the Hospital’s Medicare Act claim because the Act does not

allow the Board to adopt rules or procedures that are inconsistent with

the provisions of the Act. See 42 U.S.C. § 1395oo(e). Even if the

Board purports to give itself complete discretion by rule to dismiss an

appeal for failure to file a position paper, the Board’s power to dis-

miss is nevertheless circumscribed by the provisions of the Medicare

Act. Because the Hospital’s Medicare Act claim turns on the scope

of the Act, there is a judicially manageable standard for analyzing this

claim. Likewise, we may review the Hospital’s claim that the Board’s

rule regarding dismissal of appeals should have been promulgated

under the APA’s notice and comment procedure. Because this claim

turns on whether the APA requires such a rule to be promulgated

under the notice and comment procedure, see 5 U.S.C. § 553(b)(A),

the APA provides the statutory standard for our analysis.

1

This rule was repealed after the Board’s decision in this case. Cur-

rently, the Provider Reimbursement Manual does not contain any rules

regarding the late submission of position papers.

6 INOVA ALEXANDRIA HOSP. v. SHALALA

It is a closer question whether we have the power to review the

Hospital’s claim that the Board acted arbitrarily and capriciously. For

judicial review to be appropriate, there must be a manageable stan-

dard in either the statute or the Board’s rule by which we may judge

whether the Board’s actions were arbitrary and capricious. Without

deciding whether the statute supplies such a standard, we conclude

that the Board’s rule supplies a "meaningful standard against which

to judge the [Board’s] exercise of discretion." Chaney, 470 U.S. at

830. The Board’s rule states, "If [the provider] fail[s] to submit [a]

final position paper to the Board by the due date, the Board may dis-

miss the appeal." PRM § 2921.4E. As we will explain, this rule

should not be read as reserving to the Board absolute and unfettered

discretion to dismiss an appeal. Rather, it should be read as allowing

the Board to dismiss an appeal only if a provider cannot show excus-

able neglect.

We interpret the Board’s rule in this manner for several reasons.

First, the decision to dismiss an appeal is not the kind of decision that

is ordinarily committed exclusively to agency discretion by law.

"Agency actions are more likely to be committed to agency discretion

when they involve factual disputes, particularly those of a politically

sensitive nature." Bd. of Trs. v. Sullivan, 965 F.2d 558, 562 (7th Cir.

1992). The decision to dismiss an administrative appeal is similar to

the kind of dismissal decisions that courts routinely review for error.

See, e.g., Fed. R. Bankr. P. 8001(a) (dismissal for failure to file a doc-

ument); Fed. R. Civ. P. 37 (dismissal for failure to comply with dis-

covery order); Fed. R. Civ. P. 41(b) (dismissal for failure to

prosecute). Second, there is no affirmative evidence that the Board

intended to insulate its decisions to dismiss appeals from judicial

review. Indeed, HHS conceded at oral argument that we have jurisdic-

tion to review the Board’s action. Third, we are hesitant to interpret

the Board’s rule as precluding judicial review in light of the substan-

tial interests at stake in the provider reimbursement arena. These

interests are served by a provider appeals process that is fair and

evenhanded. If we were to interpret the Board’s rule as precluding

review, the Board could, subject to the minimum constraints of due

process, enforce the rule in a manner that is quite imperious.

We recognize that the language of the rule — "the Board may dis-

miss" — suggests that the Board intended to exercise discretion in

INOVA ALEXANDRIA HOSP. v. SHALALA 7

dismissing appeals. However, language allowing for discretion does

not create unlimited discretion. "[T]he mere fact that a statute con-

tains discretionary language does not make agency action unreview-

able." Beno v. Shalala, 30 F.3d 1057, 1066 (9th Cir. 1994); cf.

Robbins v. Reagan, 780 F.2d 37, 45 (D.C. Cir. 1985) ("Even when

there are no clear statutory guidelines, courts often are still able to

discern from the statutory scheme a congressional intention to pursue

a general goal."). Thus, courts routinely conclude that judicial review

is available notwithstanding statutory language that seemingly allows

for unlimited discretion. See, e.g., Dickson v. Sec’y of Defense, 68

F.3d 1396, 1399 (D.C. Cir. 1995) ("[The] [B]oard . . . may excuse a

failure to file within three years after discovery if it finds it to be in

the interest of justice."); Beno, 30 F.3d at 1062 ("The Secretary may

waive compliance . . . as the case may be, to the extent and for the

period he finds necessary to enable [a state] to carry out an [experi-

mental] project."). In the end, we are satisfied that the Board did not

intend to reserve to itself unlimited discretion to dismiss appeals for

the failure to file timely position papers.

Again, we read the Board’s rule as allowing dismissal only if the

provider cannot show excusable neglect for its failure to file a timely

position paper. Interpreting the Board’s rule in this manner effectively

balances two competing concerns: the Board’s interest in efficiency

and the provider’s interest in fair treatment. The Board’s interest in

the efficient management of its docket is supported by its ability to

dismiss the appeals of providers who miss deadlines. Providers, on

the other hand, have an interest in having their appeals heard and in

receiving fair treatment in the process. The rule thus allows the Board

to dismiss appeals, but only if the provider lacks a justifiable excuse

for its failure to file.

The Board’s discretion is limited by the excusable neglect standard.

Excusable neglect is a manageable standard that makes judicial

review possible. Cf. Dickson, 68 F.3d at 1403 (holding that "in the

interest of justice" is a judicially manageable standard); W. Med.

Enters., Inc. v. Heckler, 783 F.2d 1376, 1381 (9th Cir. 1986) (holding

that the "standard of ‘good cause’ is not so broad that there ‘is no law

to apply’"). Accordingly, we may review the Hospital’s claim that the

Board acted in an arbitrary and capricious manner in dismissing the

appeal.

8 INOVA ALEXANDRIA HOSP. v. SHALALA

In sum, there are judicially manageable standards for reviewing

each of the Hospital’s claims. As a result, there is no bar to judicial

review because none of the Hospital’s claims are "committed to

agency discretion by law." 5 U.S.C. § 701(a).

III.

We proceed, therefore, to consideration of the district court’s grant

of summary judgment to HHS. The district court concluded that the

Board’s "actions in dismissing the [Hospital’s] appeal were taken in

accordance with its established procedures and statutory authority."

The dismissal, the court said, "was due to [the Hospital’s] negligent

failure to proceed within the very reasonable procedural process pro-

vided." No material facts are in dispute, and we review the grant of

summary judgment de novo. See Deans v. CSX Transp., Inc., 152

F.3d 326, 330 (4th Cir. 1998).

A.

The first of the Hospital’s four claims is that the Board’s dismissal

of its appeal violated the provisions of the Medicare Act that give a

provider the right to a hearing to challenge a fiscal intermediary’s

reimbursement determinations. See 42 U.S.C. § 1395oo(a). The Hos-

pital argues that it has been wrongfully deprived of a hearing because

the statute does not expressly permit the Board to dismiss an appeal

(that is, a hearing request) for failure to file a timely position paper.

We disagree.

The gist of the Hospital’s argument appears to be that it has an

absolute right to a hearing. The Medicare Act, however, cannot be

read so broadly. Rather, the right to a hearing must be read in con-

junction with the statutory provision that allows the Board to establish

procedures to implement the section providing for appeals (or hear-

ings). See 42 U.S.C. § 1395oo(e). This provision surely empowers the

Board to adopt rules that govern the dismissal of provider appeals. As

a result, we do not read the Medicare Act as affording providers an

unqualified right to a hearing. Of course, it would be a violation of

the Medicare Act if the Board adopted procedures that unduly bur-

dened the right to a hearing. But the Act is not offended by a rule that

allows for dismissal when position papers are not filed on time.

INOVA ALEXANDRIA HOSP. v. SHALALA 9

Indeed, many agencies have rules that provide for the dismissal of a

party’s case when it has unreasonably failed to comply with the agen-

cy’s procedural rules. See, e.g., Hooper v. Nat’l Transp. Safety Bd.,

841 F.2d 1150, 1151 (D.C. Cir. 1988) (discussing NTSB’s authority

to dismiss appeals under board rule for failure to file timely briefs);

Colantuoni v. Macomber, 807 F. Supp. 835, 838 (D.D.C. 1992)

(upholding agency’s dismissal of complaint for failure to file

requested papers). In sum, a provider’s statutory right to a hearing is

not unduly burdened by a rule allowing dismissal for failure to file a

timely position paper.

B.

Second, the Hospital claims that even if the Medicare Act allows

for a dismissal rule dealing with the failure to file papers on appeal,

the Board was required to promulgate the rule under the APA’s notice

and comment procedure. This is not the case. "[R]ules of agency

organization, procedure, or practice" are exempt from the notice and

comment provisions of the APA. 5 U.S.C. § 553(b)(A). A rule fits

within this exemption if it does not "‘alter the rights or interests of

parties.’" JEM Broad. Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994)

(quoting Batterton v. Marshall, 648 F.2d 694, 707 (D.C. Cir. 1980)).

A rule that simply prescribes "the manner in which the parties present

themselves or their viewpoints to the agency" does not alter the

underlying rights or interests of the parties. Id. (quoting Batterton,

648 F.2d at 707).

The D.C. Circuit case of JEM Broad. Co. v. FCC shows why the

Board’s appeal dismissal rule is exempt from notice and comment. In

JEM the plaintiff challenged an FCC rule that prohibited an applicant

from amending its license application after submission. The rule

allowed the FCC to reject incomplete submissions, and the plaintiff

argued that the rule should have been promulgated under the APA’s

notice and comment procedure. The D.C. Circuit disagreed, conclud-

ing that the rule fell within the "agency organization, procedure, or

practice" exception. The "critical fact," according to the court, was

that the rule did not alter the "substantive standards" by which the

FCC evaluated license applications. Id. at 327. Like the FCC in JEM,

the Board here adopted a rule that does not alter the substantive stan-

dards by which it reviews provider claims. Rather, it adopted a proce-

10 INOVA ALEXANDRIA HOSP. v. SHALALA

dural rule for handling appeals. As a result, the Board was not

required to promulgate its rule under the APA’s notice and comment

procedure.

C.

Third, the Hospital claims that the Board was arbitrary and capri-

cious in dismissing the appeal. See 5 U.S.C. § 706(2)(A) (providing

that a reviewing court shall set aside agency action that is "arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with

law"). Again, we disagree. "The scope of review under the ‘arbitrary

and capricious’ standard is narrow and a court is not to substitute its

judgment for that of the agency." Motor Vehicle Mfrs. Ass’n of the

United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983). First off, the agency must provide an adequate explanation for

its actions, and the explanation must show a "rational connection

between the facts found and the choice made." Id. (internal quotation

marks omitted). The required explanation must be articulated by the

agency at the time of its action; neither we nor the agency may supply

the explanation on appeal. See SEC v. Chenery Corp., 318 U.S. 80,

87 (1943); Am. Trucking Ass’ns v. Fed. Highway Admin., 51 F.3d

405, 411 (4th Cir. 1995). In reviewing the adequacy of the agency’s

explanation, we must "consider whether the decision was based on a

consideration of the relevant factors and whether there has been a

clear error of judgment." State Farm, 463 U.S. at 43 (internal quota-

tion marks omitted). The explanation, however, does not have to be

a "model of analytic precision." Dickson, 68 F.3d at 1404. Rather, we

will "uphold a decision of less than ideal clarity if the agency’s path

may reasonably be discerned." Bowman Transp., Inc. v. Arkansas-

Best Motor Freight Sys., 419 U.S. 281, 286 (1974).

The Hospital challenges the timing as well as the adequacy of the

Board’s explanation for the dismissal of the appeal. The Hospital

complains that the Board did not issue its explanation until the Hospi-

tal applied for reinstatement, which was after the Board had already

dismissed the appeal. Normally, an agency must provide its explana-

tion at the time of the agency action. See Chenery Corp., 318 U.S. at

87. In this case the Board considered the merits of whether dismissal

was warranted at the time the Hospital applied for reinstatement

INOVA ALEXANDRIA HOSP. v. SHALALA 11

2

rather than at the time of dismissal. The Board gave adequate notice

to the Hospital that it would dismiss the appeal if the Hospital failed

to file position papers on a timely basis. When the Hospital did fail

to file, the Board simply dismissed the appeal. At that time, of course,

the Board had no knowledge as to why the Hospital missed the filing

deadline. However, when the Hospital applied for reinstatement, the

Board considered the merits of whether dismissal was warranted. In

these circumstances, even though the Hospital did not receive the

Board’s explanation for dismissal until the decision to deny reinstate-

ment, there was no prejudice to the Hospital. In other words, the tim-

ing of the Board’s explanation was reasonable.

The Hospital argues that the Board’s statement of explanation was

inadequate because it was not based on "a consideration of the rele-

vant factors." State Farm, 463 U.S. at 43. The Board, however, gave

adequate consideration to whether the Hospital could show excusable

neglect for its failure to file timely position papers. The Board’s deci-

sion began with a discussion of the circumstances that led to the Hos-

pital’s failure to file its papers on time. The Board then concluded that

simple "administrative oversight" was not a sufficient excuse. The

Board stressed that "[w]hen the Hospital was purchased, someone [in

authority] should have clarified who was responsible for this appeal

and notified the Board as to whom to send correspondence." Finally,

the Board distinguished one of its prior decisions, cited by the Hospi-

tal, in which an appeal had been reinstated because of the death of the

provider’s representative. It is evident from the Board’s explanation

that it amply considered the Hospital’s proffered excuse. The Hospital

nevertheless argues that the Board should have considered whether a

sanction less onerous than dismissal might have been appropriate. As

a general rule, the consideration of whether a lesser sanction might be

adequate should be a step in the path to the ultimate decision that dis-

missal is a fair sanction for a particular litigant. But this does not

mean that the Board’s explanation had to include express consider-

ation of possible alternatives to its decision. See State Farm, 463 U.S.

2

The Board’s authority to reinstate an appeal is broad. At the time of

the Hospital’s appeal the Provider Reimbursement Manual provided,

"The Board may, at its discretion, reinstate a dismissed request for hear-

ing on its own motion or on the request of a party." PRM § 2924.4D

(1993).

12 INOVA ALEXANDRIA HOSP. v. SHALALA

at 51 ("[A]n agency [need not] consider all policy alternatives in

reaching [a] decision."). The Board’s explanation here, which is fairly

comprehensive, demonstrates that the Board gave adequate consider-

ation to the relevant factor of whether the Hospital could show excus-

able neglect. Nothing more is required.

The Hospital also argues that the Board committed a "clear error

in judgment" in dismissing the appeal. This occurs "only if the error

is so clear as to deprive the agency’s decision of a rational basis."

Wawszkiewicz v. Dep’t of Treasury, 670 F.2d 296, 301 (D.C. Cir.

1981) (internal quotation omitted). The Hospital argues that the Board

irrationally concluded that administrative oversight is not a valid

excuse. We disagree. Because the Hospital’s failure to file timely

position papers was due to circumstances entirely within its own con-

trol, the Board had a rational basis for its decision. Cf. W. Med.

Enters., 783 F.2d at 1381 (upholding agency’s determination that

administrative neglect does not excuse a party’s late filing of a notice

of appeal). The Hospital also argues that the Board acted irrationally

because it has not enforced the dismissal rule consistently from case

to case. The Hospital claims that the Board has excused similar lapses

in other appeals. Specifically, the Hospital claims that in other cases

the Board has determined that dismissal for failure to file a timely

position paper is proper only if the provider intended to abandon its

appeal. However, the one case cited by the Hospital is from a period

when the Board’s rule specified that dismissal was only warranted if

the provider intended to abandon its appeal. That was not the rule in

place while the Hospital’s appeal was pending. In short, the Hospital

has given us no reason to conclude that the Board has been inconsis-

tent in enforcing its dismissal rule. Therefore, it was not a clear error

in judgment to dismiss the Hospital’s appeal as a result of its neglect.

The Board provided an adequate explanation for its actions. It con-

sidered whether the Hospital could show excusable neglect, and it

rationally concluded that the Hospital’s excuse was inadequate. As a

result, we hold that the Board’s actions were not arbitrary and capri-

cious.

IV.

Fourth, the Hospital claims that its due process rights were violated

because it did not have the opportunity for a hearing to challenge the

INOVA ALEXANDRIA HOSP. v. SHALALA 13

fiscal intermediary’s determination. However, just as the Medicare

Act does not provide an unqualified right to a hearing, neither does

the Due Process Clause provide such a right. Agency proceedings and

court cases are routinely dismissed for failure to comply with proce-

dural rules. See, e.g., Fed. R. Bankr. P. 8001(a) (dismissal for failure

to file a document); Fed. R. Civ. P. 37 (allowing dismissal for failure

to comply with discovery order); Fed. R. Civ. P. 41(b) (dismissal for

failure to prosecute); Hooper, 841 F.2d at 1151 (discussing NTSB’s

authority to dismiss appeals under Board rule for failure to file timely

briefs); Colantuoni, 807 F. Supp. at 837 (upholding agency’s dis-

missal of complaint for failure to file requested papers). The Hospital

does not contend that it did not have an adequate opportunity to argue

to the Board that dismissal was unwarranted. Therefore, the Hospi-

tal’s due process rights were not violated by the dismissal.

V.

In conclusion, the Hospital is entitled to judicial review of the

Board’s actions in dismissing the Hospital’s administrative appeal.

However, because the Board’s dismissal of the Hospital’s appeal was

appropriate in the circumstances, the district court’s award of sum-

mary judgment to HHS is affirmed.

AFFIRMED