“Secretary neither made findings of fact nor rendered a decision upon the constitutional issue”
How later courts described this case
- “Secretary neither made findings of fact nor rendered a decision upon the constitutional issue”
Written by the judges who cited it.
The opinion
MARSHALL, District Judge,
concurring.
The district court concluded it had subject matter jurisdiction of this case under § 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-706 . We now know that § 10 does not provide an independent basis of subject matter jurisdiction. Califano v. Sanders, 430 U.S. 99 , 97 S.Ct. 980 , 51 L.Ed.2d 192 (1977).
Trinity contends, however, that subject matter jurisdiction exists under 28 U.S.C. § 1331 . I am of the opinion that the third sentence of 42 U.S.C. § 405 (h), as interpreted and applied in Weinberger v. Salfi, 422 U.S. 749 , 95 S.Ct. 2457 , 45 L.Ed.2d 522 (1975), precludes that contention. While Congress provided for direct review of certain Medicare decisions by the Secretary, e. g., 42 U.S.C. § 1395ff(c), which incorporates 42 U.S.C. § 405 (b) and (g), it did not provide for direct review of his instant decision.
In anticipation that aggrieved persons might seek a form of collateral review of Social Security decisions by the Secretary, Congress expressly proscribed “action[s] against ... the Secretary . under section [1331] of Title 28 to recover on any claim arising under this subchapter.” § 405(h). That prohibition was expressly incorporated into the Medicare Act. 42 U.S.C. § 1395Ü. In Salfi the Court held, in light of the comprehensive direct review provisions of the Social Security Act, that district courts must respect that Congressional limit on § 1331 jurisdiction even when the aggrieved person’s claim involves alleged violations of the Constitution by the Secretary. There is no reason to believe the Court would reach a contrary result in a case such as this one involving a Medicare claim.
I would, however, leave to the Court of Claims the question of its subject matter jurisdiction and the scope of its review under 28 U.S.C. § 1491 . See Whitecliff Inc. v. United States, 536 F.2d 347 (Ct.Cl.1976), cert. denied, 45 U.S.L.W. 3691 (April 18, 1977). But with review in the Court of Claims possibly available, it is not clear that all avenues of judicial review are closed to plaintiff under our holding that the district court lacked subject matter jurisdiction in this case. Accordingly, we need not intimate any view as to the constitutionality of a Congressional scheme that would bar all judicial review of disputes such as this.
Thus, I concur in the decision to reverse the judgment of the district court for want of subject matter jurisdiction.