Time to play catch-up. This post will cover a few pre-June-2019 adlaw cases that I have been meaning to discuss. My next post, which will be up almost immediately after this one, will discuss four adlaw decisions that the Court issued in June. Let's get to it.

In re Benjamin, No. 18-20185 (5th Cir. May 10, 2019) (Clement, Graves, Oldham)

In In re Benjamin, the Court interprets 42 U.S.C. § 405(h), which provides that

The findings and decision of the Commissioner of Social Security after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Commissioner of Social Security shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Commissioner of Social Security, or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter.

The Court has already reversed and remanded two other district court decisions in light of In re Benjamin. See D&G Holdings, L.L.C. v. Azar, No. 18-30925 (5th Cir. July 2, 2019) (Clement, Duncan, Oldham) (per curiam); Becker v. Berryhill, No. 18-50837 (5th Cir. June 28, 2019) (Jones, Higginson, Oldham) (per curiam). In D&G Holdings, the Court described the “gist of the [In re Benjamin] decision” this way:

The third sentence [of § 405(h)] strips federal jurisdiction under only the listed statutory provisions—§§ 1331 and 1346—not under unlisted ones, such as bankruptcy jurisdiction under 28 U.S.C. § 1334. 924 F.3d at 184–88. The second sentence, in turn, channels certain claims under Title II into § 405(g) as the exclusive path for obtaining judicial review. But that is true only for claims falling within its scope. The only claims that fall within its scope are claims challenging a disability determination by the Commissioner of Social Security for which § 405(b)(1) provides a hearing. Id. at 188–89. For claims falling outside of the second sentence’s scope, a litigant may altogether avoid § 405(g)’s channeling and exhaustion requirements. At the same time, however, a litigant who takes himself outside of § 405(g) then needs an independent basis of jurisdiction. That is, § 405(g) jurisdiction is unavailable for such claims. Id

In so holding, the Fifth Circuit joined the Ninth Circuit on the less-popular side of a growing circuit split regarding the scope of § 405(h). The Third, Seventh, Eighth, and Eleventh Circuits have held that the provision bars review of not only of claims brought under §§ 1331 and 1346 but also § 1334 (and others). The Supreme Court recently denied certiorari in a case from the 11th Circuit raising this issue. Perhaps there will be more interest in a future petition now that the Fifth Circuit has thrown its hat in the ring on the minority side of the split. We’ll see.

D&G Holdings, one of two per curiam decisions mentioned above that reverses and remands a district court decision in light of In re Benjamin, contains one other noteworthy passage. Near the end of the unpublished opinion, the panel unleashes a pretty ferocious bench slap on HHS and Novitas Solutions, Inc., HHS's Medicare Administrative Contractor (MAC) for Louisiana. Here it is in full:

Medicare providers must be given written notice of an initial determination. See, e.g., 42 U.S.C. § 1395ff(a)(2)(A), (a)(4); 42 C.F.R.  § 405.921. No party contends that Novitas sent a written notice to D&G regarding its repayment decision. In fact, the Secretary’s counsel at oral argument conceded that she was unaware of any documentation or explanation regarding the $1.8 million check Novitas sent to D&G. As best we can tell, it appears that Novitas picked the number out of thin air. What is worse, its affiant (Shaena Parker) admits the amount was wrong. All this makes one thing inescapably clear: Neither the Secretary nor Novitas seem to have any idea what they are doing or what is going on. It is inexcusable that the Secretary would allow Novitas to wield the sovereign authority of the United States to seize money from a private company but then be utterly unable to give an accounting for the amount pillaged.

Oh my.

Shah v. Azar, 920 F.3d 987 (5th Cir. Apr. 12, 2019) (Higginbotham, Dennis, Costa)

Married physicians Nawaz and Shah each submitted Medicare claims for services provided on dates when they were out of the country, triggering the Center for Medicare and Medicaid Services (CMS), which administers the Medicare reimbursement program, to revoke their Medicare billing privileges. Despite conceding that they were out of the country during the relevant periods and that they submitted claims seeking reimbursement for the services at issue at the physician billing rate, both physicians challenged the revocation.

The Fifth Circuit’s opinion rejecting those challenges is fairly straightforward. One point is worth highlighting, however: in the process of refuting the physicians’ argument that CMS’s revocation decision amounted to an unconstitutional taking without compensation and, in the process, the Fifth Circuit joined four other circuits in holding that physicians do not have a protected property interest in continued participation in Medicare. See Parrino v. Price, 869 F.3d 392, 397-98 (6th Cir.  2017); Erickson v. U.S. ex rel. Dep't of Health & Human Servs., 67 F.3d 858, 862 (9th Cir. 1995); Koerpel v. Heckler, 797 F.2d 858, 863–65 (10th Cir. 1986); Cervoni v. Sec'y of Health, Ed. & Welfare, 581 F.2d 1010, 1018–19 (1st Cir. 1978). Only the Fourth Circuit has held otherwise. Ram v. Heckler, 792 F.2d 444, 447 (4th Cir. 1986).

Bank of Louisiana v. FDIC, 919 F.3d 916 (5th Cir. Mar. 28, 2019) (Smith, Duncan, Engelhardt)

Bank of Louisiana filed suit in district court challenging on constitutional grounds two FDIC enforcement actions that resulted in penalties being assessed against the Bank. The question for the panel: whether the judicial review scheme Congress established in 12 U.S.C. § 1818 foreclosed district court review. Concluding that it does, the Fifth Circuit affirms the district court’s order dismissing the Bank’s lawsuit for lack of subject matter jurisdiction.

The panel begins by explaining that Congress may preclude district court jurisdiction either explicitly or implicitly. “To discern an explicit preclusion,” the Court “examine[s] whether the text expressly limits the jurisdiction that other statutes,” such as 28 U.S.C. § 1331, “confer on district courts.” “To discern an implicit preclusion,” by contrast, the Court “engage[s] in a more complex analysis.” First, it asks whether it is “fairly discernible” from the “text, structure, and purpose” of the statutory scheme that Congress intended to preclude district court jurisdiction.  Second, it asks “whether the claims at issue are of the type Congress intended to be reviewed within the statutory structure.” In addressing that second question, the Court applies the so-called Thunder Basin factors: (1) whether precluding district court jurisdiction could foreclose all meaningful judicial review; (2) whether the Bank’s suit is wholly collateral to a statute’s review provisions; and (3) whether its claims are outside the agency’s expertise. See Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994).

Because the district court and the parties addressed the issue under the implicit preclusion standard, the panel “d[oes] the same.” At step one, the panel agrees with FDIC that § 1818(i) plainly evinces Congress’s intent to bar district court jurisdiction.

FDIC urged the Court to end its analysis there and to dispense with the Thunder Basin factors altogether. After all, FDIC argued, the Thunder Basin factors “are a judge-made test for discerning whether [the Court] should presume Congress has left district court jurisdiction unimpaired.” Where the plain terms of the statute at issue bar jurisdiction, however, “no court-created presumption can change that result.” Despite the “attractiveness” of FDIC’s approach, the panel “cycle[s] through the Thunder Basin factors” anyway and, unsurprisingly, concludes that they “reinforce the conclusion that the review scheme precludes district court jurisdiction over the Bank’s claims.”

Judge Duncan's opinion includes a particularly thorough discussion of the Thunder Basin factors. Anyone facing a similar question in the Fifth Circuit would be well-advised to study it.

Louisiana Real Estate Appraisers Board v. FTC, 917 F.3d 389 (5th Cir. Feb. 28, 2019) (King, Higginson, Costa) (per curiam)

In Louisiana Real Estate Appraisers Board v. FTC, the Court holds that while the collateral-order doctrine might permit immediate review of certain administrative decisions, it doesn’t apply to an FTC order denying state-action immunity to a state agency alleged to have violated federal antitrust laws. The panel explains that Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), the Supreme Court decision that established the collateral-order doctrine, “does not resolve this case.” It held that 28 U.S.C. § 1291 permits collateral review of district court decisions, whereas the question in this case is whether the Federal Trade Commission Act permits collateral review of the Commission’s decisions. Although courts have applied Cohen’s rationale to permit collateral review of administrative orders under the APA, the Mine Act, the Clean Air Act, and other statutes, the FTCA’s judicial-review provision, which permits review in the court of appeals only of FTC cease and desist orders, is narrower than the relevant language in those statutes. Because “Congress has expressly limited our jurisdiction to review of cease-and-desist orders,” the Court explains, “we cannot consider the Board’s petition for review of the Commission’s denial of its motion to dismiss and granting of the FTC’s motion for partial summary decision.”

In reaching that conclusion, the Fifth Circuit expressly rejects the First Circuit’s holding that the doctrine is “generally applicable” to administrative decisions. As the panel puts it, “[t]he collateral-order doctrine may apply to judicial review of some administrative decisions,” but that does not mean that “courts of appeals may intervene in administrative proceedings as a general matter.”

Unlike most per curiam opinions from the Fifth Circuit, this one is published--and therefore precedential.

Fifth Circuit Update No. 3
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