Appeal from an order of the United States District Court, District of Connecticut, T. Emmet Clarie, Chief Judge, granting summary judgment invalidating Department of Health, Education and Welfare regulation 20 C.F.R. § 405.415(d)(3) pertaining to recovery of overpayments of depreciation allowances to providers of services under the Medicare Program. See 403 F. Supp. 515 (D. Conn. 1975). Reversed for lack of jurisdiction.
Hays and Mansfield, Circuit Judges, and Brieant, District Judge.*fn* Brieant, D.j., dissenting.
MANSFIELD, Circuit Judge:
The Secretary of the Department of Health, Education and Welfare (hereafter "HEW") appeals from a decision and summary judgment order of the United States District Court, District of Connecticut, T. Emmet Clarie, Chief Judge, entered on July 17, 1975, holding that HEW regulation 20 C.F.R. § 405.415(d)(3), as applied to the years preceding 1970, contravenes the Medicare Act, 42 U.S.C. §§ 1395, et seq. (hereafter "the Act"), and the Due Process Clause of the Fifth Amendment. Because we conclude that jurisdiction was not available in the district court to test the HEW regulation, but rested exclusively in the Court of Claims, we reverse.
Plaintiff-appellee is a voluntary "provider of services" under the Medicare program, 42 U.S.C. § 1395x(u). Under the Act the hospital or convalescent facility provides defined basic services to individuals aged 65 or over, §§ 1395 (c) & (d), and receives payment from the Federal Hospital Insurance Trust Fund that is controlled by HEW and financed by special wage taxes, §§ 1395cc(a)(1)(A), 1395i. The payment ordinarily is routed through a fiscal intermediary such as defendant Travelers Insurance Company and is designed to reimburse the provider for the "reasonable cost" incurred by him in furnishing treatment.
The Medicare Act does not explicitly define the term "reasonable cost." Instead, the Secretary of HEW is charged with promulgating regulations establishing the methods to be utilized and the items to be included in calculating the costs "actually incurred" by the provider, § 1395x(v)(1)(A). Crucial to this suit, the Act specifically requires that the regulations "provide for the making of suitable retroactive corrective adjustments where, for a provider of services for any fiscal period, the aggregate reimbursement [to the provider] produced by the methods [established by the Secretary for] determining costs proves to be either inadequate or excessive," § 1395x(v)(1)(A)(ii).
The regulations defining "reasonable cost" always have included payment for capital assets used in providing Medicare services by permitting a depreciation allowance. Prior to August 1, 1970, providers were entitled to compute such depreciation charges by either the "straightline" or the accelerated method. Plaintiff used the accelerated technique during his participation in the program from July 1, 1967, to October 1, 1971, when he terminated his involvement. At that point plaintiff fell within the ambit of the regulation challenged in this action, 20 C.F.R. § 405.415(d)(3).
The regulation, which became effective on August 1, 1970, provides in pertinent part:
"When a provider who has used an accelerated method of depreciation with respect to any of its assets terminates participation in the program, or where the health insurance proportion of its allowable costs decreases so that cumulatively substantially more depreciation was paid than would have been paid using the straight-line method of depreciation, the excess of reimbursable cost, determined by using accelerated depreciation methods and paid under the program over the reimbursable cost which would have been determined and paid under the program by using the straight-line method of depreciation, will be recovered . . . as an overpayment."
Acting pursuant to this regulation, plaintiff's fiscal intermediary, upon termination of plaintiff's participation as a provider, requested that Windsor repay the difference between the total reimbursements it had received for the period 1967-71 utilizing accelerated depreciation and the payment it would have received had it used a straight-line calculation. Fearing a cut-off of other funds claimed under Subchapter XIX of the Act, 42 U.S.C. § 1396, known as the Medicaid program, plaintiff complied and repaid the sum of $16,367.45. It then instituted suit in the district court on August 16, 1974, seeking repayment of the money alleged to have been recaptured illegally by HEW. The complaint alleged that the amounts in issue were owed to plaintiff as allowances for accelerated depreciation permitted under regulations promulgated pursuant to the Medicare program, 20 C.F.R. Subpart D of Part 405, §§ 405.401-.454, 31 Fed. Reg. 12808, prior to the addition of 20 C.F.R. § 405.415(d)(3), the recapture provision, and that the latter regulation, to the extent that it authorized recapture of accelerated depreciation allowances for periods prior to its effective date, was void for lack of statutory authority and as violative of the Due Process Clause of the Fifth Amendment.
Without discussing jurisdiction, the district court ruled that regulation 405.415(d)(3) cannot be legally enforced for the years preceding January 1, 1970, the beginning of the year of its promulgation. The court thereupon entered judgment for plaintiff in the amount of $15,655. Defendants appeal.
At the threshold, we must consider the Secretary's challenge to the district court's jurisdiction since, without a grant of subject matter jurisdiction, the court was without power to consider the merits.
Although the complaint does not specify in haec verba the ground upon which federal jurisdiction is asserted, it is readily apparent from the nature of the claim asserted (recovery of monies due under a federal statute and withheld in violation of plaintiff's constitutional rights) and the complaint's allegation of jurisdictional amount ($10,000) that jurisdiction is invoked pursuant to the general federal question grant of 28 U.S.C. § 1331.*fn1 This jurisdictional avenue, however, is foreclosed by ...