the clear mandates of the law and regulations" regarding fair hearings. Id. at 9.
Plaintiffs complain that, following their requests for fair hearings, the notices they received from Blue Cross regarding these hearings were insufficiently specific to provide plaintiffs actual notice of the issues to be covered in these hearings. (Pls.' Memo at 3-7.) According to plaintiffs, these notices were "in direct violation of 42 CFR Section 405.826, MCM Sections 12017 and 12017A and the due process clause of the Fifth Amendment to the United States Constitution." Id. at 4.
In addition, plaintiffs allege that "defendants' failure to provide crucial discovery violated plaintiffs' constitutional right to due process." Id. at 7. Specifically, plaintiffs claim they were entitled to examine Blue Cross documents pertaining to changes in reimbursement policies, id. at 8, and computerized "stock paragraphs" used by some hearing officers as aids in the preparation of final fair hearing decisions. Id. at 13 n.5; (Plaintiffs' Memorandum of Law in Reply and Opposition to Defendants' Cross-Motion for Dismissal and Summary Judgment ("Pls.' Reply") at 20.)
Plaintiffs further claim that they were wrongfully denied the opportunity to interview Blue Cross administrators as witnesses. (Pls.' Complaint at 14; Pls.' Memo at 7; Pls.' Reply at 12.) Additionally, plaintiffs contend that defendants ignored basic fair hearing standards regarding hearing scheduling and procedure. (Pls.' Complaint at 10-12, 18.)
Defendants advance three arguments in response to plaintiffs' allegations. First, defendants claim that this Court lacks subject matter jurisdiction under the "plain language" of Kuritzky because plaintiffs' claims challenge the manner in which defendants interpreted and applied Part B rules and regulations, not the validity of the rules and regulations themselves. (Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion for Summary Judgment and in Support of Defendants' Motion for Summary Judgment ("Defs.' Memo") at 10). Second, defendants assert that because Medicare law delegates the authority to resolve fair hearing scheduling and discovery issues to carriers and hearing officers, all of defendants' challenged actions fall within Michigan Academy's jurisdictional bar. Id. at 11. Finally, defendants argue that, even if Medicare law permitted judicial review of claims that deviations from Part B fair hearing rules constituted due process violations, "plaintiffs' claims of constitutional violations are so insubstantial that they cannot confer subject matter jurisdiction on this Court." Id. at 12.
Reviewing the parties' claims and legal arguments in light of Medicare case law, this Court finds that it lacks subject matter jurisdiction over plaintiffs' claims under 28 U.S.C. § 1331 because plaintiffs' claims constitute unreviewable Part B challenges under Kuritzky. As previously noted, "jurisdiction is lacking where the claim is merely that the insurance carrier misapplied or misinterpreted valid rules and regulations." 850 F.2d at 128. Plaintiffs allegations raise solely this claim. Plaintiffs allegations that defendants "violated the clear mandates of the law and regulations" regarding fair hearings, (Pls.' Complaint at 9), acted "in direct violation" of Part B regulations, id. at 12, 13, 15, 18, and deviated from "applicable rules and regulations," (Pls.' Memo at 14, 19), do not challenge the rules and regulations themselves. Rather, these accusations challenge the manner in which hearing officers applied the rules and regulations to their cases. In fact, plaintiffs concede the validity of the Part B rules and regulations applicable to their cases by citing them as the standards by which this Court should evaluate defendants' actions. Accordingly, this Court holds that it lacks subject matter jurisdiction over these claims under 28 U.S.C. § 1331.
Plaintiffs' arguments that this Court has subject matter jurisdiction are wholly unavailing. The case law on which plaintiffs rest their case is unpersuasive. Throughout the papers plaintiffs submitted to this Court, plaintiffs rely on an assortment of cases in which a plaintiff challenged an administrative agency's rulings in federal court. See, e.g., McClelland v. Andrus, 196 U.S. App. D.C. 371, 606 F.2d 1278 (D.C. Cir. 1979) (pertaining to Interior Department personnel reports); Vargas v. Trainor, 508 F.2d 485 (7th Cir. 1974), cert. denied, 420 U.S. 1008, 43 L. Ed. 2d 767, 95 S. Ct. 1454 (1975) (regarding termination of welfare benefits provided through the program of Aid to the Aged, Blind, and Disabled, 42 U.S.C. § 1381-85 (1969)); Housing Auth. of King County v. Pierce, 711 F. Supp. 19 (D.D.C. 1989) (resolving challenges to HUD subsidies). These cited cases, however, are inapposite, because they address challenges to administrative proceedings in a non-Medicare context.
In the absence of precedent, such cases might have been a useful source of law from which to draw analogies in support of plaintiffs' argument that this Court has subject matter jurisdiction in this case. There is, however, no absence of Medicare Part B case law. On the contrary, as previously noted, there is a sizeable body of decisional law directly on point that holds that this Court lacks jurisdiction to hear a challenge to a fair hearing officer's interpretation or application of Medicare Part B rules and regulations.
The abundance of Medicare Part B case law further highlights the inadequacy of plaintiffs' case. Careful review of plaintiffs' papers reveals that plaintiffs failed to cite any relevant Medicare case law in opposition to defendants' motion to dismiss for lack of subject matter jurisdiction. Similarly, plaintiffs cited no authority that contradicts or limits Kuritzky's rule that federal courts lack subject matter jurisdiction over challenges to the application or interpretation of Part B regulations. Remarkably, plaintiffs made no attempt to distinguish Kuritzky and other relevant Second Circuit case law in their Reply Memo, despite defendants' reliance on this case law to support defendants' jurisdictional argument.
2. Jurisdiction Under 28 U.S.C. § 2201-02
Because this Court lacks subject matter jurisdiction over plaintiffs' claims under 28 U.S.C. § 1331, this Court also lacks jurisdiction to grant plaintiffs declaratory or injunctive relief. The Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, empowers a federal court to "declare the rights and other legal relations of any interested party." 28 U.S.C. § 2201. It further enables a court to provide "further necessary or proper relief based on a declaratory judgment," 28 U.S.C. § 2202, such as an injunction, Powell v. McCormack, 395 U.S. 486, 499, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969), in actions within its jurisdiction. It is well settled that the Declaratory Judgment Act neither creates subject matter jurisdiction where none exists nor expands the scope of existing jurisdiction in the federal courts. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 94 L. Ed. 1194, 70 S. Ct. 876 (1950). Accordingly, this Court holds that because it lacks subject matter jurisdiction over plaintiffs' claims under 28 U.S.C. § 1331, it also lacks subject matter jurisdiction under the Declaratory Judgment Act, 28 U.S.C. § 2201-02.
3. Mandamus Jurisdiction
The federal mandamus statute, 28 U.S.C. § 1361, provides district courts with an independent basis for jurisdiction in cases in which a government official "has failed to perform a specific statutory or regulatory directive." Marinoff v. Department of Health, Educ. and Welfare, 456 F. Supp. 1120, 1121 (S.D.N.Y. 1978), aff'd mem., 595 F.2d 1208 (2d Cir.), cert. denied 442 U.S. 913, 99 S. Ct. 2829, 61 L. Ed. 2d 279 (1979). Mandamus is "an extraordinary remedy, and is to be employed only under exceptional circumstances, for courts will intervene to disturb determinations of administrative officials only in clear cases of illegality." Association of American Medical Colleges v. Califano, 186 U.S. App. D.C. 270, 569 F.2d 101, 110-11 n.80 (D.C. Cir. 1977) (citations omitted). The availability of mandamus jurisdiction in Medicare Part B cases is uncertain. When presented with this question, both the Supreme Court and the Second Circuit declined to address the issue because each found that, even if mandamus jurisdiction were available to review the Part B appeals process, its exercise would have been inappropriate. Heckler v. Ringer, 466 U.S. 602, 616, 80 L. Ed. 2d 622, 104 S. Ct. 2013 (1984); Anderson, 881 F.2d at 5 n. 11, aff'g, 87 Civ. 4048 (S.D.N.Y. Nov. 17, 1989) (rejecting request for mandamus relief to permit judicial review of Medicare Part B reimbursement dispute). Identical reasoning controls the instant case.
Even assuming that this Court has jurisdiction to address a mandamus request arising from a Part B dispute, this court does not have jurisdiction to grant plaintiffs a writ of mandamus in this case. The stringent prerequisites for the issuance of a writ of mandamus are: "(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." Billiteri v. United States Bd. of Parole, 541 F.2d 938, 946 (2d Cir. 1976); see also Anderson, 881 F.2d at 5. Plaintiffs' claims do not meet all three prerequisites. Specifically, their complained of injuries arose from defendants' alleged violations of the rules and regulations governing the conduct of Medicare Part B fair hearings. (Pls.' Complaint at 9.) Medicare law, however, affords defendants both flexibility and discretion in their conduct of Part B fair hearings and, thus, does not create a "plainly defined peremptory duty," Billiteri, 541 F.2d at 946, which defendants owe plaintiffs. In the absence of such a nondiscretionary duty, mandamus is inappropriate. Heckler, 466 U.S. at 616; Anderson, 881 F.2d at 5; Billiteri, 541 F.2d at 946.
In sum, this court lacks jurisdiction over the subject matter of plaintiffs' claims under the federal question statute, 28 U.S.C. § 1331, the Declaratory Judgment Act, 28 U.S.C. § 2201-02, and the federal mandamus statute, 28 U.S.C. § 1362. As a result, this Court hereby grants defendants' motion to dismiss plaintiffs' complaint in its entirety, pursuant to Rule 12(b)(1). Consequently, it is unnecessary and, indeed, would be improper, to address plaintiffs' or defendants' respective motions for summary judgment, which go to the merits of the parties' claims.
The result in this case should come as no surprise to plaintiffs' counsel. Plaintiffs' counsel previously served as counsel in a very similar Medicare Part B challenge that the Second Circuit dismissed for lack of subject matter jurisdiction on the same grounds as those controlling in this case. Anderson v. Bowen, 881 F.2d 1 (2d Cir. 1989), aff'g, No. 87-4048, slip. op. (S.D.N.Y. Nov. 17, 1988). Remarkably, counsel neglected to cite Anderson or any of the other relevant case law previously mentioned. Counsel further failed to respond to defendants' reliance on these cases in support of defendants' 12(b)(1) motion. In light of counsel's familiarity with this area of Medicare law, and his personal knowledge of Anderson, this Court is puzzled by counsel's failure to cite these cases.
Defendants' Rule 12(b)(1) Motion is GRANTED.