American Society of Cataract and Refractive Surgery, et al. v. Louis W. Sullivan, M.d., Secretary, et al., Appellants, 986 F.2d 546 (D.C. Cir. 1993)

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U.S. Court of Appeals for the District of Columbia Circuit - 986 F.2d 546 (D.C. Cir. 1993)

Jan. 5, 1993


Before SILBERMAN, BUCKLEY and KAREN LeCRAFT HENDERSON, Circuit Judges.

ORDER

PER CURIAM.


Upon consideration of the motion for summary reversal, the opposition thereto and the reply, it is

ORDERED that the motion be granted. The district court lacked jurisdiction to entertain appellees' action. See National Kidney Patients Ass'n v. Sullivan, 958 F.2d 1127, 1129-34 (D.C. Cir. 1992), petition for cert. filed, 61 U.S.L.W. 3303 (U.S. Sept. 29, 1992) (No. 92-569). That the policy appellees seek to challenge was promulgated after notice-and-comment rulemaking does not render inapplicable the presentment and exhaustion prerequisites for judicial review of claims arising under the Medicare Act. See National Kidney Patients, 958 F.2d at 1128; Association of Am. Medical Colleges v. Califano, 569 F.2d 101, 105-10 (D.C. Cir. 1977). Finally, we simply cannot accept appellees' contention that Dr. Donaldson's one-page letter commenting on appellants' proposed policy change can be considered the equivalent of a claim for benefits, fulfilling the presentment and exhaustion requirements. Notwithstanding Dr. Donaldson's participation in the administrative process that led to the promulgation of the challenged policy, such policies, "which apply across the board to an entire class of beneficiaries without regard to the specific facts involving any particular beneficiary's claim, are not final 'decisions' " subject to review under 42 U.S.C. § 1395ff. Ganem v. Heckler, 746 F.2d 844, 849 (D.C. Cir. 1984).

The merits of the parties' positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam); Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir.) (per curiam), cert. denied, 449 U.S. 994 (1980). Accordingly, the district court's order filed August 26, 1991, is vacated, and the case is remanded with instructions to dismiss the complaint.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 15.