Willie Goffney, Jr. v. Xavier Becerra

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIE H. GOFFNEY, JR., M.D.; No. 19-56368

ADVANCED SURGICAL ASSOCIATES

MEDICAL OFFICE, INC., a California D.C. No.

corporation, 2:17-cv-08032-

Plaintiffs-Appellants, MRW

v.

OPINION

XAVIER BECERRA, Secretary of the

United States Department of Health

and Human Services, in his official

capacity,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of California

Michael R. Wilner, Magistrate Judge, Presiding

Argued and Submitted March 2, 2021

Pasadena, California

Filed April 29, 2021

2 GOFFNEY V. BECERRA

Before: Susan P. Graber, Stephen A. Higginson, * and

Eric D. Miller, Circuit Judges.

Opinion by Judge Miller

SUMMARY **

Medicare

The panel affirmed the district court’s summary

judgment entered in favor of the Secretary of Health and

Human Services (“HHS”) in an action challenging HHS’s

denial of plaintiff Dr. Willie Goffney’s claim for

reimbursement from the Medicare program for services that

he provided covered patients.

In 2012, Dr. Goffney was informed that his Medicare

billing privileges had been deactivated in 2008. In 2015, Dr.

Goffney attempted to reactivate his billing privileges. The

Medicare contractor in his region, Nordian Healthcare

Solutions, approved Dr. Goffney’s request, but assigned him

a new effective date of August 31, 2015 – the date on which

he submitted the forms to reactivate his billing privileges.

That effective date precluded Dr. Goffney from obtaining

compensation for services he had performed in the preceding

decade. The HHS Departmental Appeals Board affirmed the

agency’s denial of Dr. Goffney’s petition for review, and

*

The Honorable Stephen A. Higginson, United States Circuit Judge

for the U.S. Court of Appeals for the Fifth Circuit, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

GOFFNEY V. BECERRA 3

concluded that Dr. Goffney had filed a qualifying

“enrollment application” and that the effective-date

provision of 42 C.F.R. § 424.520(d) controlled.

The panel held that 42 C.F.R. § 424.520(d) was

ambiguous, and did not specify whether a certification

submitted to reactivate billing privileges constituted a

“Medicare enrollment application” that triggered a new

effective date. Specifically, the panel held that the parties’

readings of other provisions of the regulations did not clearly

resolve the ambiguity. The panel held that Section

424.555(b) supported the government’s interpretation of

“Medicare enrollment application” in this context. The

panel further held that the regulatory history was not

illuminating, and that considerations of purpose did not

meaningfully affect its analysis.

The panel applied the principles of Auer deference to the

agency’s interpretation of its own regulations, and concluded

that the interpretation reflected in the Departmental Appeals

Board decision qualified for deference under Auer. Namely,

section 424.520(d) was “genuinely ambiguous” in this

context; the agency’s reading fell within the permissible

zone of ambiguity; and the agency’s reading met all three of

the additional criteria identified in Kisor v. Wilkie, 139 S. Ct.

2400 (2019). First, the Board’s interpretation represented

an authoritative statement of the agency. Second, the

ambiguity implicated the agency’s core expertise because it

involved the administration of the Medicare program. Third,

the agency’s reading was consistent with how it had

previously interpreted the relevant regulations. The panel

concluded that under the agency’s interpretation of section

424.520(d), Dr. Goffney’s reactivation request was “a

Medicare enrollment application” and its filing date of

4 GOFFNEY V. BECERRA

August 31, 2015 was the effective billing date of his billing

privileges.

The panel held that the district court did not abuse its

discretion in denying Dr. Goffney’s motion to order HHS to

supplement the administrative record.

COUNSEL

Charles G. Smith (argued) and Dana M. Silva, Law Offices

of Charles G. Smith, Sherman Oaks, California, for

Plaintiffs-Appellants.

Daniel Aguilar (argued) and Mark B. Stern, Appellate Staff;

Nicola T. Hanna, United States Attorney; Civil Division,

United States Department of Justice, Washington, D.C.; for

Defendant-Appellee.

OPINION

MILLER, Circuit Judge:

Dr. Willie Goffney sought reimbursement from the

Medicare program for services that he provided to covered

patients. Applying its interpretation of the governing

regulation, the Department of Health and Human Services

(HHS) denied his claim. The Supreme Court recently

reaffirmed that a reviewing court should defer to an agency’s

reasonable interpretation of ambiguous regulations. Kisor v.

Wilkie, 139 S. Ct. 2400 (2019). We agree with the district

court that the governing regulation is genuinely ambiguous

and that the agency’s interpretation is reasonable. We also

agree with the district court that its review was appropriately

GOFFNEY V. BECERRA 5

confined to the administrative record the agency produced

and that the agency was not required to supplement the

record. We therefore affirm.

I

Medicare is a federally subsidized medical insurance

program for the elderly and disabled. See 42 U.S.C. § 1395

et seq.; Thomas Jefferson Univ. v. Shalala, 512 U.S. 504,

506 (1994). The Centers for Medicare & Medicaid Services

(CMS), an agency within HHS, oversees the Medicare

program. See Pharmaceutical Rsch. & Mfrs. of Am. v.

Walsh, 538 U.S. 644, 650 n.3 (2003). CMS contracts with

private entities to administer the program. See 42 U.S.C.

§§ 1395u(a), 1395kk-1(a); 42 C.F.R. § 421.5(b). Each

Medicare contractor is responsible for a particular region of

the country. 42 C.F.R. § 421.404(b)(1), (c)(1).

To be paid for performing Medicare services, healthcare

providers must enroll in the program, at which point they

receive billing privileges and a billing number. 42 C.F.R.

§ 424.505. (The statute distinguishes between hospitals,

which it calls “providers,” and physicians, whom it calls

“suppliers,” but because nothing in this case turns on that

distinction, we will refer to both as providers. 42 U.S.C.

§ 1395x(d), (u).) Billing privileges are not permanent—once

approved, they may be revoked or deactivated. 42 C.F.R.

§ 424.555(b). A revocation “means that . . . billing privileges

are terminated.” Id. § 424.502. A deactivation “means that

. . . billing privileges were stopped, but can be restored upon

the submission of updated information.” Id. Deactivation

exists “to protect the provider . . . from misuse of its billing

number and to protect the Medicare Trust Funds from

unnecessary overpayments.” Id. § 424.540(c).

6 GOFFNEY V. BECERRA

Goffney is a surgical oncologist in Long Beach,

California, who has provided services to Medicare patients

since 1991. In 2005, Goffney stopped receiving payments

for his Medicare claims, but he nonetheless continued to

provide services to Medicare patients for the next decade. It

is not clear—at least to us—exactly what happened during

that period. The record suggests that Goffney provided

services, received no payments, and made only occasional

efforts to remedy the situation. But the exact sequence of

events is not relevant to the legal issue before us.

In 2012, Goffney was informed that his Medicare billing

privileges had been deactivated in 2008 because he had not

submitted a claim for more than a year. See 42 C.F.R.

§ 424.540(a)(1). Goffney argues that the deactivation was

erroneous, but although the regulations provide a

mechanism for a provider to challenge a deactivation,

Goffney did not invoke that mechanism. See 42 C.F.R.

§§ 405.374(a), 405.375(a), 424.545(b).

Instead, in 2015, Goffney attempted to reactivate his

billing privileges. To do so, he submitted documents to

Noridian Healthcare Solutions, the Medicare contractor in

his region, verifying that his enrollment information had not

changed. Specifically, he submitted portions of Forms CMS-

855B, CMS-855I, and CMS-855R—entitled “Medicare

Enrollment Application”—which providers use for initial

enrollment in the program, reactivation, and various other

purposes. Goffney checked the box stating that he was

“revalidating [his] Medicare enrollment.”

Goffney hoped—and, he says, a Noridian employee

represented—that by recertifying the accuracy of his

information, he could keep his original effective billing date

and be paid for the services he had provided while his

privileges were inactive. But when Noridian approved

GOFFNEY V. BECERRA 7

Goffney’s request, it assigned him a new effective date of

August 31, 2015—the date on which he had submitted the

forms to reactivate his billing privileges. That effective date

precluded Goffney from obtaining compensation for

services he had performed in the preceding decade.

Goffney sought reconsideration, but Noridian denied his

request. It relied on 42 C.F.R. § 424.520(d), which provides

that “[t]he effective date for billing privileges for

physicians” is “[t]he date of filing of a Medicare enrollment

application that was subsequently approved by a Medicare

contractor.” Reasoning that what Goffney filed on August

31, 2015 was an “enrollment application,” Noridian

concluded that section 424.520(d) made that date the

effective date of his reactivated billing privileges.

Goffney then petitioned for review before an HHS

administrative law judge, arguing that a certification

attesting to the accuracy of existing enrollment information

does not constitute an “enrollment application” under

section 424.520(d). The administrative law judge denied

Goffney’s petition.

The HHS Departmental Appeals Board affirmed. The

Board concluded that Goffney had filed a qualifying

“enrollment application” and that the effective-date

provision of section 424.520(d) controlled. The Board

emphasized that no other regulation sets the effective date

for Medicare billing privileges. The Board also determined

that it lacked authority to consider the circumstances

surrounding Goffney’s initial deactivation, the Medicare

claims he submitted while his billing privileges were

inactive, or his equitable arguments about Noridian’s

representations to him.

8 GOFFNEY V. BECERRA

Having exhausted his administrative remedies, Goffney

sought review of the agency’s decision in federal district

court. See 42 U.S.C. §§ 405(g), 1395cc(h)(1)(A). Goffney

asked the district court to order the agency to supplement the

administrative record to include additional materials related

to the agency’s decision. The district court denied the

motion.

The district court granted summary judgment to the

Secretary of HHS. The court reasoned that HHS regulations

contain “a pretty obvious silence . . . about whether a past

‘effective date’ is warranted following reactivation,” and

therefore the “regulations are ‘genuinely ambiguous’ in this

area.” It concluded that the agency’s interpretation of the

regulations was entitled to deference and that the agency had

“provided a reasonable basis for applying the Section

424.520 effective date to [Goffney’s] circumstance.”

II

In this appeal, Goffney does not challenge the agency’s

conclusions about the scope of its authority, nor does he

dispute that the agency correctly identified August 31, 2015

as the date on which he submitted his reactivation request.

He also does not dispute that under section 424.520(d),

“[t]he effective date for billing privileges for physicians [is]

the date of filing of a Medicare enrollment application that

was subsequently approved.” The sole question before us is

whether Goffney’s reactivation request constituted a

“Medicare enrollment application” within the meaning of

section 424.520(d), such that its filing date of August 31,

2015 is the effective date of his billing privileges. More

specifically, the question before us is whether to accept the

Departmental Appeals Board’s interpretation of section

424.520(d)’s phrase “Medicare enrollment application.”

GOFFNEY V. BECERRA 9

The Supreme Court has held that an agency’s

interpretation of its own regulation is entitled to deference

when, among other things, the regulation is “genuinely

ambiguous.” Kisor, 139 S. Ct. at 2415. With that in mind,

we first “exhaust all the ‘traditional tools’ of construction”

in an effort to interpret the regulation by examining its “text,

structure, history, and purpose.” Id. (quoting Chevron U.S.A.

Inc. v. NRDC, Inc., 467 U.S. 837, 843 n.9 (1984)); see

Minnick v. Commissioner, 796 F.3d 1156, 1159 (9th Cir.

2015) (per curiam) (“Regulations are interpreted according

to the same rules as statutes, applying traditional rules of

construction.”). Because we conclude that the regulation is

ambiguous, we then consider what principles of deference

apply.

A

Section 424.520(d) itself does not specify whether a

certification submitted to reactivate billing privileges

constitutes a “Medicare enrollment application” that triggers

a new effective date. The parties direct us to various other

provisions of the regulations. One supports Goffney’s

reading and others support the government’s, and they do not

clearly resolve the ambiguity.

The regulations contain a definitional section, and

because an express textual definition would be controlling,

we begin there. See Burgess v. United States, 553 U.S. 124,

129–30 (2008). Unfortunately, “Enrollment application” is

defined unhelpfully, for our purposes, as “a CMS-approved

paper enrollment application or an electronic Medicare

enrollment process.” 42 C.F.R. § 424.502.

“Enroll/Enrollment” are also defined terms, but their

definitions shed no more light. Id. They refer to “the process

that Medicare uses to establish eligibility to submit claims

for Medicare-covered items and services,” which includes

10 GOFFNEY V. BECERRA

“validating the provider[’s] eligibility to provide items or

services to Medicare beneficiaries” and “granting the

Medicare provider . . . Medicare billing privileges.” Id. The

reference to “granting . . . billing privileges” could perhaps

be construed to encompass the reactivation of billing

privileges, but even on that understanding, it would not

necessarily follow that a request for reactivation would

constitute a “Medicare enrollment application” under

section 424.520(d).

Goffney principally relies on 42 C.F.R. § 424.540(b)

(2012), entitled “Deactivation of Medicare billing

privileges.” Although that provision has since been

amended, the amendment is not relevant to the issue in this

case, and the agency’s commentary explains that it was

intended simply to reduce “confusion” by “clarif[ying]” the

language of the rule. Medicare, Medicaid, and Children’s

Health Insurance Programs; Program Integrity

Enhancements to the Provider Enrollment Process, 84 Fed.

Reg. 47,794, 47,839 (Sept. 10, 2019). We therefore confine

our analysis to the version of the regulation that was in effect

at the time of the events in this case.

Section 424.540(b) outlines two procedures by which a

provider can reactivate billing privileges. A provider who

has been “deactivated for any reason other than

nonsubmission of a claim . . . must complete and submit a

new enrollment application to reactivate its Medicare billing

privileges or, when deemed appropriate, at a minimum,

recertify that the enrollment information currently on file

with Medicare is correct.” 42 C.F.R. § 424.540(b)(1) (2012).

On the other hand, a provider deactivated for nonsubmission

of a claim need only “recertify that the enrollment

information currently on file with Medicare is correct and

GOFFNEY V. BECERRA 11

furnish any missing information as appropriate.” Id.

§ 424.540(b)(2) (2012).

Goffney emphasizes that only paragraph (b)(1) refers to

the filing of a “new enrollment application.” In his view,

section 424.540(b) creates a negative implication that when

a provider is deactivated for “nonsubmission of a claim”—

as Goffney was—the provider need not submit a “new

enrollment application.” But while that is a reasonable

inference, it is not conclusive here. Section 424.520(d)

provides for an effective billing date upon the contractor’s

receipt of an “enrollment application”—unlike section

424.540(b), it does not contain the qualifier “new.” So while

there is a strong argument that what Goffney filed was not a

“new enrollment application,” his filing might still have been

an “enrollment application.”

The government points to two other provisions, and

while they both support its alternative reading, neither is

decisive. First, 42 C.F.R. § 424.515 states that Medicare

providers “must resubmit and recertify the accuracy of

[their] enrollment information every 5 years,” a process that

involves submitting an “enrollment application and

supporting documentation,” id. § 424.515(a). That provision

suggests that the term “enrollment application” can describe

more than just a provider’s very first submission to enroll in

Medicare—and that a recertification, at least in this context,

might be one example of what is included. Accord id.

§§ 405.818, 424.510(d)(3)(ii) (both using the term

“enrollment application” in other contexts that appear not to

be restricted to initial enrollment).

Second, the government relies on 42 C.F.R.

§ 424.555(b), which restricts the government’s payment

liability by specifying that “[n]o payment may be made for

otherwise Medicare covered items or services furnished to a

12 GOFFNEY V. BECERRA

Medicare beneficiary by a provider . . . if the billing

privileges of the provider . . . are deactivated, denied, or

revoked.” The government reads that provision to mean that

a provider cannot ever bill Medicare for services that it

renders while its billing privileges are deactivated. If that is

true, it logically follows that the effective date of a

provider’s billing privileges should be reset upon the

reactivation of those privileges. See 42 C.F.R. § 424.5(a)(2).

Goffney responds that section 424.555(b) just means that a

provider must have reactivated its billing privileges by the

time of payment.

We think the government has the better reading of

section 424.555(b) because another regulation provides that

the agency will make payments only if “[t]he services [were]

furnished by a provider . . . that was, at the time it furnished

the services, qualified to have payment made for them.”

42 C.F.R. § 424.5(a)(2). That interpretation also accords

with section 424.555(c), which states that providers that

furnish services for which section 424.555(b) prohibits

payment are responsible for “any expense incurred” in

providing those services. If a provider could seek

retrospective payments once it reestablished its billing

privileges, section 424.555(c) would make little sense.

Although the regulations do permit retrospective billing in

certain narrow circumstances, see, e.g., 42 C.F.R.

§ 424.521(a), HHS has not allowed that practice as a general

matter, see Urology Grp. of NJ, LLC, DAB No. 2860, 2018

WL 4144023 (H.H.S. 2018) (explaining that “a deactivated

provider . . . was not intended to be entitled to Medicare

reimbursement for services rendered during the period of

deactivation”). Section 424.555 thus supports the

government’s interpretation of “Medicare enrollment

application” in this context.

GOFFNEY V. BECERRA 13

Finally, we consider the regulatory history and purpose.

See Kisor, 139 S. Ct. at 2415. The history is not illuminating,

and we conclude that considerations of purpose do not

meaningfully affect our analysis. Section 424.540(c) states

that the agency deactivates billing privileges “to protect the

provider . . . from misuse of its billing number and to protect

the Medicare Trust Funds from unnecessary overpayments.”

The government argues that this purpose would be frustrated

if the agency had to presume that every claim submitted

during a period of deactivation was legitimate, and that to

avoid that result, it must set a new effective billing date. That

justification makes some sense, especially in a case like this

one, in which the provider’s billing privileges were

apparently inactive for a decade. (To be clear, the record

contains no suggestion that any of Goffney’s claims were

fraudulent.)

On the other hand, regulations, like statutes, often reflect

compromises among competing objectives, and “it is quite

mistaken to assume . . . that ‘whatever’ might appear to

‘further[] the statute’s primary objective must be the law.’”

Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718,

1725 (2017) (alteration in original) (quoting Rodriguez v.

United States, 480 U.S. 522, 526 (1987) (per curiam)). And

even under Goffney’s reading of section 424.555(b), the

agency would not be required to pay claims submitted during

a period of deactivation until after the provider’s billing

privileges were reactivated. In that situation, the provider

would have confirmed the accuracy of its information, so

there would be little reason to suspect that past claims were

fraudulent. The regulations also set time limits on when

claims can be filed—generally within one year of the

service, see 42 C.F.R. § 424.44—further reducing the

concern about fraudulent billing. The regulatory purpose

therefore does not help us resolve the textual ambiguity.

14 GOFFNEY V. BECERRA

B

Because this case “involves an interpretation of an

administrative regulation,” we must “look to the

administrative construction of the regulation if the meaning

of the words used is in doubt.” Bowles v. Seminole Rock &

Sand Co., 325 U.S. 410, 413–14 (1945). When an agency

interprets its own ambiguous regulation, the agency’s

interpretation is generally “of controlling weight unless it is

plainly erroneous or inconsistent with the regulation.” Id. at

414. Although Seminole Rock represents one of the Supreme

Court’s earliest expositions of that principle, the doctrine has

come to be associated with the Court’s more recent decision

in Auer v. Robbins, 519 U.S. 452, 461 (1997).

The Supreme Court recently reaffirmed Auer deference,

but in doing so, it noted some limitations on the doctrine’s

scope. See Kisor, 139 S. Ct. at 2408. The most important

limitation is that the regulation must be “genuinely

ambiguous.” Id. at 2415; Christensen v. Harris County,

529 U.S. 576, 588 (2000). In other words, a court may not

“wave the ambiguity flag” and abandon its interpretive

efforts simply because the regulation appears “impenetrable

on first read” or “make[s] the eyes glaze over.” Kisor,

139 S. Ct. at 2415. Instead, a court must first “exhaust all

the ‘traditional tools’ of construction” and consider the

regulation’s “text, structure, history, and purpose,” just as it

would “if it had no agency to fall back on.” Id. (quoting

Chevron, 467 U.S. at 843 n.9). Even then, it may defer only

to an agency interpretation that is “reasonable,” Thomas

Jefferson Univ., 512 U.S. at 515, in the sense that it falls

within the permissible “zone of ambiguity” created by the

regulation. Kisor, 139 S. Ct. at 2415–16.

Although Auer deference to an agency’s interpretation of

a regulation is conceptually distinct from Chevron deference

GOFFNEY V. BECERRA 15

to an agency’s interpretation of a statute, the two forms of

deference operate in similar ways. See Kisor, 139 S. Ct.

at 2416 (rejecting the suggestion that “agency constructions

of rules receive greater deference than agency constructions

of statutes”). Like Auer deference, Chevron deference

applies only if a court first deems a statute ambiguous after

exhausting “traditional tools of statutory construction.”

Chevron, 467 U.S. at 843 n.9; Turtle Island Restoration

Network v. United States Dep’t of Com., 878 F.3d 725, 733

(9th Cir. 2017). And even when a statute is ambiguous at

Chevron step one, the agency’s resolution of the ambiguity

must be reasonable to survive step two. Compare Chevron,

467 U.S. at 845, with Kisor, 139 S. Ct. at 2415–16. In other

words, “where Congress has established an ambiguous line,

the agency can go no further than the ambiguity will fairly

allow.” City of Arlington v. FCC, 569 U.S. 290, 307 (2013);

see United States v. Home Concrete & Supply, LLC,

566 U.S. 478, 493 n.1 (2012) (Scalia, J., concurring in part

and concurring in the judgment) (“It does not matter whether

the word ‘yellow’ is ambiguous when the agency has

interpreted it to mean ‘purple.’”); Global Tel*Link v. FCC,

866 F.3d 397, 419 (D.C. Cir. 2017) (Silberman, J.,

concurring).

The Court in Kisor held that even if those threshold

requirements are satisfied, an agency’s interpretation must

satisfy three other criteria to merit deference under Auer. See

Kisor, 139 S. Ct. at 2416–18. First, the interpretation “must

be the agency’s ‘authoritative’ or ‘official position,’” and not

merely an “ad hoc statement not reflecting the agency’s

views.” Id. at 2416 (quoting United States v. Mead Corp.,

533 U.S. 218, 257–59, 258 n.6 (2001) (Scalia, J.,

dissenting)). That means that the interpretation must

“emanate from those actors, using those vehicles,

16 GOFFNEY V. BECERRA

understood to make authoritative policy in the relevant

context.” Id.

Second, “the agency’s interpretation must in some way

implicate its substantive expertise.” Kisor, 139 S. Ct.

at 2417; see Martin v. Occupational Safety & Health Rev.

Comm’n, 499 U.S. 144, 152–53 (1991). The “most obvious”

situation in which that criterion is satisfied is “when a rule is

technical.” Kisor, 139 S. Ct. at 2417. But it can also be

satisfied in situations involving “more prosaic-seeming

questions” as long as the agency has some “comparative

expertise” and the issue is not one that “fall[s] more naturally

into a judge’s bailiwick.” Id.; see City of Arlington, 569 U.S.

at 309 (Breyer, J., concurring in part); cf. Adams Fruit Co. v.

Barrett, 494 U.S. 638, 649–50 (1990).

Third, the interpretation must reflect the agency’s “fair

and considered judgment.” Kisor, 139 S. Ct. at 2417

(quoting Christopher v. SmithKline Beecham Corp.,

567 U.S. 142, 155 (2012)). That does not mean that the

agency must engage in an exhaustive interpretive

discussion—even an interpretation implicit in an agency’s

order can reflect the agency’s “fair and considered

judgment.” See Association of Bituminous Contractors, Inc.

v. Apfel, 156 F.3d 1246, 1252 (D.C. Cir. 1998); accord

Southern Utah Wilderness All. v. Office of Surface Mining

Reclamation & Enf’t, 620 F.3d 1227, 1236 (10th Cir. 2010).

Rather, this part of the test protects reliance interests

associated with longstanding agency practices or

interpretations. Courts may not defer to an interpretation that

“creates ‘unfair surprise’ to regulated parties” or that

amounts “to a merely ‘convenient litigating position.’”

Kisor, 139 S. Ct. at 2417–18 (first quoting Long Island Care

at Home, Ltd. v. Coke, 551 U.S. 158, 170 (2007), and then

quoting Christopher, 567 U.S. at 155).

GOFFNEY V. BECERRA 17

C

Applying those principles here, we conclude that the

interpretation reflected in the Departmental Appeals Board’s

decision qualifies for deference under Auer. As we have

explained, section 424.520(d) is “genuinely ambiguous” in

this context, and the agency’s reading falls within the

permissible zone of ambiguity. Kisor, 139 S. Ct. at 2415–16.

And the agency’s reading meets all three of the additional

criteria identified in Kisor.

First, the Board’s interpretation represents an

authoritative statement of the agency. The Secretary of HHS

appoints the Board’s members, 45 C.F.R. § 16.5(a), and the

Board “generally issues HHS’s final decision, which may

then be appealed to a federal court.” Arizona Health Care

Cost Containment Sys. v. McClellan, 508 F.3d 1243, 1248

n.6 (9th Cir. 2007). The Board’s decision is the product of a

formal process that merits deference. Cf. id. at 1249, 1253–

54 (deferring under Chevron to the Board’s interpretation of

an ambiguous statute).

Second, the ambiguity implicates the agency’s core

expertise because it involves the administration of the

Medicare program. See Kisor, 139 S. Ct. at 2417. The

regulatory scheme allows providers to bill only in certain

circumstances and limits their ability to receive Medicare

payments depending on their billing status. See 42 C.F.R.

§§ 424.521(a), 424.555(b). The regulations also reflect

HHS’s policy of deactivating billing privileges to prevent

Medicare fraud and to protect the public fisc. See 42 C.F.R.

§ 424.540(c). The ambiguity here affects the implementation

of that policy, and the agency has “comparative expertise”

in resolving the issue. Kisor, 139 S. Ct. at 2417. See

generally Urology Grp. of NJ, DAB No. 2860.

18 GOFFNEY V. BECERRA

Third, far from being a new interpretation or one that

would create unfair surprise, the agency’s reading is

consistent with how it has previously interpreted the relevant

regulations. See Kisor, 139 S. Ct. at 2417–18; cf.

Christopher, 567 U.S. at 155–57. CMS’s Program Integrity

Manual (PIM)—a guidebook that instructs Medicare

contractors on how to process provider applications, pay

claims, and minimize fraud—has long required contractors

to reset providers’ effective billing dates when they grant

reactivation requests. See Urology Grp. of NJ, DAB

No. 2860 (explaining that since 2009, the PIM has treated a

“reactivation application . . . as an initial enrollment

application” for purposes of section 424.520(d) (quoting

Medicare Program Integrity Manual § 10.6.1.4 (rev. 289,

Jan. 1, 2009))); see also Medicare Program Integrity Manual

§ 15.27.1.2 (rev. 865, Mar. 12, 2019); id. § 15.27.1.2.1 (rev.

765, Jan. 1, 2018); id. § 15.27.1.2.2 (rev. 765, Jan. 1, 2018).

More than a decade ago, the Board recognized, if not tacitly

endorsed, that interpretation. See Arkady B. Stern, DAB No.

2329, 2010 WL 3810867, at *3 & n.5 (H.H.S. 2010)

(interpreting the PIM to mean that “a reactivated provider

will have a new effective date”). Indeed, when Noridian

denied Goffney’s reconsideration request, it cited the PIM

for the same principle.

As currently written, section 15.27.1.2.2(A) of the PIM

requires providers seeking reactivation to submit a packet of

documents that CMS calls a “reactivation certification

package,” even if their enrollment information has not

changed. Section 15.27.1.2 says that if “the contractor

approves a provider’s . . . reactivation application or

reactivation certification package . . . the reactivation

effective date shall be based on the date the contractor

received the application or [reactivation certification

package].” The PIM therefore directly resolves the

GOFFNEY V. BECERRA 19

ambiguity at issue here. And even though the PIM, like its

counterpart in the social security context, “does not impose

judicially enforceable duties,” Lockwood v. Commissioner

Soc. Sec. Admin., 616 F.3d 1068, 1073 (9th Cir. 2010); see

42 C.F.R. § 405.1062(a), it still shows that HHS’s

interpretation is more than just a “convenient litigating

position,” Christopher, 567 U.S. at 155.

Goffney argues that the Board’s decision was not a “fair

and considered judgment” because it was “ad hoc”; it

“ignore[d] the plain language of Section 520”; and it did not

cite “any legal precedent or administrative rules.” We

disagree. The Board invoked section 424.520(d), quoted the

relevant “recertification” language from section 424.540(b),

and recognized that the contractor had “treated [Goffney’s

request] as an application . . . to reactivate his billing

privileges.” Even if its analysis could have been more

comprehensive, the Board resolved the legal question of

whether section 424.520(d) applies to reactivation requests

like Goffney’s. See Association of Bituminous Contractors,

156 F.3d at 1252.

We conclude that the Board’s interpretation of section

424.520(d) merits Auer deference and controls this case. See

519 U.S. at 461. Under that interpretation, Goffney’s

reactivation request was “a Medicare enrollment

application,” and its filing date of August 31, 2015 is the

effective date of his billing privileges.

III

The district court did not abuse its discretion in denying

Goffney’s motion to order HHS to supplement the

administrative record. See Lands Council v. Powell,

395 F.3d 1019, 1030 n.11 (9th Cir. 2005). Goffney argues

that the agency failed to include in the record all materials

20 GOFFNEY V. BECERRA

related to its decision to assign him an August 31, 2015

effective billing date. In his view, “[t]he missing documents

likely show that the Agency’s decision was arbitrary and

capricious.” He does not, however, identify any specific

documents that he believes to be missing.

The Administrative Procedure Act requires us to review

an agency’s action based on “the whole record.” 5 U.S.C.

§ 706. That “includes everything that was before the agency

pertaining to the merits of its decision.” Portland Audubon

Soc’y v. Endangered Species Comm., 984 F.2d 1534, 1548

(9th Cir. 1993); see Thompson v. United States Dep’t of

Labor, 885 F.2d 551, 555–56 (9th Cir. 1989) (“The ‘whole’

administrative record . . . consists of all documents and

materials directly or indirectly considered by agency

decision-makers.” (emphasis omitted) (quoting Exxon Corp.

v. Department of Energy, 91 F.R.D. 26, 33 (N.D. Tex.

1981))). HHS has codified that requirement in a regulation

that directs the Office of Medicare Hearings and Appeals—

the agency tasked with compiling the record for HHS

administrative proceedings—to include in the record “the

appealed determinations, and documents and other evidence

used in making the appealed determinations and the ALJ’s

or attorney adjudicator’s decision,” as well as any proffered

evidence excluded by the adjudicator. 42 C.F.R.

§ 405.1042(a)(2).

We have explained that a court reviewing an agency’s

action may examine “extra-record evidence” only in

“limited circumstances” that are “narrowly construed and

applied.” Lands Council, 395 F.3d at 1030 (citing Camp v.

Pitts, 411 U.S. 138, 142–43 (1973) (per curiam)). Such

circumstances are present, for example, when “the agency

has relied on documents not in the record” or “when

plaintiffs make a showing of agency bad faith.” Id. (quoting

GOFFNEY V. BECERRA 21

Southwest Ctr. for Biological Diversity v. United States

Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996)); see

Department of Com. v. New York, 139 S. Ct. 2551, 2573–74

(2019); Portland Audubon Soc’y, 984 F.2d at 1548. But like

other official agency actions, an agency’s statement of what

is in the record is subject to a presumption of regularity. See

Angov v. Lynch, 788 F.3d 893, 905 (9th Cir. 2015). We must

therefore presume that an “agency properly designated the

Administrative Record absent clear evidence to the

contrary.” Bar MK Ranches v. Yuetter, 994 F.2d 735, 740

(10th Cir. 1993); accord Oceana, Inc. v. Ross, 920 F.3d 855,

865 (D.C. Cir. 2019); see also Angov, 788 F.3d at 905 (“[I]n

the absence of clear evidence to the contrary, courts presume

that [government officials] have properly discharged their

official duties.” (quoting National Archives & Records

Admin. v. Favish, 541 U.S. 157, 174 (2004))).

Goffney has not presented “clear evidence”—or any

evidence at all. His argument rests on speculation that the

agency must have considered more documents than it said it

had because, in his view, the agency’s decision was

“unprecedented.” As the district court recognized, however,

Goffney’s petition posed a legal issue, not a factual one.

Noridian’s denial of Goffney’s reconsideration request

shows that Noridian reviewed Goffney’s application, section

424.520(d), the PIM, and Noridian’s policy about its

authority to set billing privileges. It does not follow that

there must be additional documents underpinning Noridian’s

decision. Nor is there any indication that the ALJ or the

Board relied on any other materials in reaching their

decisions.

Goffney also claims that CMS’s decision “to deny

benefits in this manner appeared only to apply to physicians

of color” and that the agency has “manipulate[d] the

22 GOFFNEY V. BECERRA

administrative record” to shield it from review. In his district

court filings, Goffney did not so much as hint at the

possibility of racial bias; to the contrary, he stated that “there

is no allegation of bad faith in this case.” Goffney has

provided no evidence of bias, and the record reveals none.

AFFIRMED.