policy of HHS or of the Medicare carriers. Thus they do not fall within the futility exception to the exhaustion requirement as defined in Birchman and Bowen v. City of New York.
Further, plaintiffs have not demonstrated how the administrative review process is incapable of correcting the procedural errors they protest. Plaintiffs could have participated in the hearing before the hearing officer and then argued the procedural errors before an ALJ, the next level of review. The plaintiffs have not explained why the ALJ lacks the authority to remand to the hearing officer if procedural violations have occurred. Given the possibility in this case of "allowing the agency 'an opportunity to correct its own errors,'" insufficient reason exists to waive the exhaustion requirement. City of New York v. Heckler, supra, 742 F.2d at 737 (citation omitted).
The final factor to be considered in determining whether waiver of the exhaustion requirement is appropriate in a given case is whether plaintiffs would suffer irreparable harm if forced to exhaust the administrative review process. Such irreparable harm has been found where plaintiffs are dependent upon the benefits they seek. See, e.g., Eldridge, supra, 424 U.S. at 330-332. Here plaintiffs seek reimbursement for medical expenses under the Medicare Act. Thus they have already expended money for the medical services they received or, where plaintiffs are medical service providers who have been assigned claims of patients, they are simply awaiting payment for services rendered. In neither case are plaintiffs so dependent on these Medicare reimbursements or payments that they would suffer irreparable harm if required to exhaust the administrative review process before seeking relief in federal court. Accordingly, this factor does not weigh in favor of waiving the exhaustion requirement.
Since exhausting the administrative review process would neither subject plaintiffs to irreparable harm nor be a futile exercise, an exception to the exhaustion requirement is not warranted in this case. Without a final decision of the Secretary or a waiver of the exhaustion requirement, plaintiffs have not met the jurisdictional requirements of 42 U.S.C. § 405(g).
III. Mandamus Jurisdiction.
The federal mandamus statute, 28 U.S.C. § 1361, provides an independent basis for jurisdiction in the district court. The Second Circuit standard for mandamus jurisdiction is set forth in Billiteri v. United States Bd. of Parole, 541 F.2d 938, 946 (2d Cir. 1976), as follows:
The prerequisites to the issuance of a writ of mandamus have been stated as (1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and peremptory duty on the defendant's part to do the act in question; and (3) lack of another available, adequate remedy.
Even assuming for the sake of argument that plaintiffs met parts (1) and (2) of this standard, they cannot meet part (3), since administrative remedies are still open to them, as discussed above. Accordingly, no mandamus jurisdiction exists in this case.
Since the court lacks jurisdiction over the subject matter of this action, defendant's motion to dismiss the complaint in its entirety is hereby granted. Given this holding, the court need not address defendants' arguments under Rule 12(b)(6), F.R.Civ.P.
IT IS SO ORDERED.
Dated: New York, New York
February 7, 1992
Robert L. Carter