MEMORANDUM OPINION
The Secretary of the Department of Health and Human Services, through the Centers for Medicare and Medicaid Services (“CMS”), is responsible for providing payments known as “disproportionate share hospital” (“DSH”) adjustments to hospitals that serve a significantly disproportionate share of low income patients, as set forth under the Medicare statute, Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq. Hundreds of Medicare providers have, collectively, filed twelve law
*57
suits in this district to obtain recalculation of their DSH payments as a result of findings made by the Provider Reimbursement Review Board on March 17, 2006, concerning systemic flaws in the data used by CMS and in the process used to assess the data.
See Baystate Med. Ctr. v. Mutual of Omaha Ins. Co.,
Case Nos. 96-1822; 97-1579; 98-1827; 99-2061, Decision No. 2006-D20 (Mar. 17, 2006) (Pl.’s Mem., Ex. A)
(“Baystate
Board Decision”). Those findings were reviewed by this Court, and sustained in part, as set forth in an opinion issued on March 31, 2008.
Baystate Med. Ctr. v. Leavitt,
In this first of the post-Baystate lawsuits, seventeen Medicare providers seek judicial relief from allegedly erroneous DSH payment determinations for fiscal years 1987-1994. Plaintiffs filed administrative appeals of those DSH determinations with the Board on September 12, 2006. See Compl. ¶ 52. They requested “equitable tolling” of the 180-day limitations period for filing such appeals, recognizing that, absent such tolling, their appeals would be barred by the 180-day deadline set forth in 42 U.S.C. § 1395oo (a). The Board dismissed their appeals as untimely, holding, inter alia, that it lacked authority to grant a request for equitable tolling. See In re Crowell & Moving 87-93 DSH Equitable Tolling Group, Case No. 06-2357G (Sept. 18, 2007) (Compl., Ex. B) (“In re Equitable Tolling Group, Board Decision”). Plaintiffs contend that the Board’s decision was contrary to law and ask this Court to hold their administrative appeals timely. Compl. ¶¶ 59-60. In the alternative, they seek an order from this Court directing the Secretary to order the Medicare fiscal intermediaries “to make new DSH determinations for the FYs at issue ... using correct ... percentages” through a grant of mandamus or similar order under the Mandamus Act, 28 U.S.C. § 1361, the All Writs Act, 28 U.S.C. § 1651, or the federal question statute, 28 U.S.C. § 1331. Id. ¶¶ 61-64.
In response, defendants have moved to dismiss the complaint on the ground that plaintiffs’ administrative appeals were untimely and hence, judicial review is not available under § 1395oo (f). Defendants further contend that plaintiffs are not entitled to mandamus relief under § 1361 or any other statute because they have failed to identify a nondiscretionary duty owed to plaintiffs or otherwise satisfied the extraordinary requirements for mandamus relief. A hearing on defendant’s motion was held on January 21, 2010. For the reasons explained below, the Court will grant defendant’s motion to dismiss. 1
BACKGROUND
I. Statutory and Regulatory Background
Through a complex statutory and regulatory regime, the Medicare program reimburses qualifying hospitals for the services they provide to eligible elderly and disabled patients.
See generally County of Los Angeles v. Shalala,
The disproportionate patient percentage is the sum of two fractions, commonly referred to as the Medicaid fraction (often called the Medicaid Low Income Proxy) and the Medicare fraction (the Medicare Low Income Proxy). 42 U.S.C. § 1395ww(d)(5)(F)(vi);
Jewish Hospital, Inc. v. Secretary of Health and Human Servs.,
Medicare payments are initially determined by a “fiscal intermediary” — typically an insurance company that acts as the Secretary’s agent for purposes of reimbursing health care providers. See 42 C.F.R. §§ 421.1, 421.3, 421.100-.128. 3 A fiscal intermediary is required by regulation to apply the SSI fraction computed by CMS. See id. § 412.106(b)(2) and (b)(5). The intermediary sets forth the total payment — including any DSH payment — due to a provider for a particular fiscal year in a Notice of Program Reimbursement (“NPR”). Id. § 405.1803.
A provider dissatisfied with the amount of the award may request a hearing before the Provider Reimbursement Review Board (“PRRB” or “Board”), an administrative body composed of five members appointed by the Secretary. 42 U.S.C. § 1395oo (a), (h). Section 1395oo (a)(3) provides that such appeals must be filed “within 180 days after notice of the intermediary’s final determination.” The PRRB has the authority to affirm, modify, or reverse the final determination of the intermediary, and the Secretary may then reverse, affirm, or modify the Board’s deci *59 sion within 60 days thereafter. Id. § 1395oo (d) and (f). Providers may obtain judicial review of “any final decision of the Board” or the Secretary’s reversal, affirmance, or modification thereof, by commencing a civil action within 60 days of receipt of any final decision. Id. § 1395oo CO.
The Secretary has, by regulation, authorized the Board to grant an extension of the 180-day administrative appeal period “for good cause shown,” if a request for extension is filed not “more than 3 years after the date the notice of the intermediary’s determination is mailed to the provider.” 42 C.F.R. § 405.1841(b). The regulation prohibits the Board from extending the 180-day deadline for administrative appeals if the request is submitted after that three-year period. Id.
Apart from the administrative appeal process, a provider also may obtain administrative relief from an intermediary’s determination by requesting a “reopening.” In most instances, a request for reopening must be submitted within three years of the date of the intermediary determination or Board decision at issue, but in cases of “fraud or similar fault of any party to the determination,” the three-year deadline does not apply.
See
42 C.F.R. § 405.1885(a), (d);
see generally Monmouth Med. Ctr. v. Thompson,
II. Factual Background
Plaintiffs are various hospitals who participated in the Medicare program at various times between fiscal years 1987 through 1994. Compl. ¶¶ 4-11. Each hospital received a Notice of Program Reimbursement setting forth its DSH payment determination, which typically occurs within two to three years of the end of a fiscal year.
Id.
¶¶ 50-51, 53;
see Baystate Med. Ctr.,
On March 17, 2006, over ten years after the fiscal years at issue, the PRRB addressed whether there were systemic flaws in the data underlying the DSH payment determinations in the context of resolving the claims of Baystate Medical Center — a nonparty to this case — which had lodged a timely appeal of its DSH payments for fiscal years 1993 through 1996.
On September 12, 2006, about three months after the Board’s Baystate decision, plaintiffs appealed their DSH payment determinations to the Board on the ground that the determinations were made using an understated SSI fraction. Compl. ¶ 52. They acknowledged that each of their appeals was filed more than three years after the NPRs had been issued. Id. ¶ 53. However, plaintiffs asked the Board to find the appeals timely under the principle of equitable tolling. Id. ¶ 54. They contended that equitable tolling applied because the hospitals’ failure to file an appeal within 180 days of issuance of the NPRs was the result of CMS’s refusal to inform the hospitals that their SSI percentages were incorrectly understated for the fiscal years at issue, citing the Board’s Baystate decision. Id. ¶ 55. In their view, then, the appeals were timely because they were filed within 180 days of the Board’s Baystate decision. Id. ¶¶ 54-56.
On September 18, 2007, the Board held that it lacked jurisdiction over the hospitals’ appeals because they were not timely filed. See In re Equitable Tolling Group, Board Decision at 3. The Board reasoned that it had only the powers granted to it by statute and regulation, which limited its authority to hear an administrative appeal to requests filed within 180 days of the date of the final determination (42 U.S.C. § 1395oo (a)) or requests demonstrating “good cause” for a late appeal within three years after the intermediary’s determination was mailed to the provider (42 C.F.R. § 405.1841(b)). Id. The Board determined that “[g]ood cause for late filing cannot be considered in these cases because the cases [were] filed more than three years after the issuance of the NPRs....” Id. at 2. The Board further concluded that it did not have “general equitable powers,” but instead was limited to the equitable powers granted by § 405.1841(b), as well as the reopening regulation, § 405.1885. Id. Therefore, the Board held the appeals untimely. Id. at 3. The Secretary declined to review the Board’s decision. See Compl., Ex. B. Plaintiffs then brought this action seeking judicial review pursuant to § 1395oo (f) or, in the alternative, a judicial order directing the Secretary to order the Medicare fiscal intermediaries “to make new DSH determinations for the FYs at issue ... using correct SSI percentages” through a grant of mandamus. Plaintiffs also contend that their challenges may be reviewed directly under the federal question statute if judicial review is not available elsewhere.
*61 STANDARD OF REVIEW
“[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.”
Scheuer v. Rhodes,
Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court — plaintiffs here — bears the burden of establishing that the court has jurisdiction.
See U.S. Ecology, Inc. v. U.S. Dep’t of Interior,
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court is mindful that all that the Federal Rules of Civil Procedure require of a complaint is that it contain “‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ”
Bell Atl. Corp. v. Twombly,
In resolving a motion to dismiss an action for relief in the nature of mandamus, courts have characterized the issue as involving both a jurisdictional and a merits inquiry because, in determining whether the court has jurisdiction to compel an agency or official to act, the court must consider the merits question of whether a legal duty is owed to the plaintiff under the relevant statute.
See In re Cheney,
DISCUSSION
I. Availability of Judicial Review Under 42 U.S.C. § 1395oo(f)
Defendant raises the threshold issue of whether the Court has jurisdiction under the Medicare Act, 42 U.S.C. § 1395oo(f), to review the Board’s decision. Defendant contends that § 1395oo(f) limits judicial review to a “final decision of the Board,” and that under
Athens Comm. Hosp. v. Schweiker,
The relevant statutory language is as follows:
(a) Any provider of services which has filed a required cost report within the *63 time specified in regulations may obtain a hearing with respect to such cost report by a [PRRB] ... and any hospital which receives payments in amounts computed under subsection (b) or (d) of section 1395ww ... may obtain a hearing with respect to such payment by the Board, if—
(3) such provider files a request for hearing within 180 days after notice of the intermediary’s final determination ...
(f) ... Providers shall have the right to obtain judicial review of any final decision of the Board ... by a civil action commenced within 60 days of the date on which notice of any final decision by the Board ... is received.....
42 U.S.C. § 1395oo (emphasis added). At the outset, it is important to note that the 180-day limitations period cannot plausibly be characterized as jurisdictional. First and foremost, there is no language in § 1395oo (a) or (f) indicating that the limitations period is jurisdictional. The Supreme Court has cautioned that, “when Congress does not rank a statutory limitation ... as jurisdictional, courts should treat the restriction as nonjurisdictional in character.”
Arbaugh v.Y & H Corp.,
Ultimately, however, defendant’s argument against judicial review under § 1395oo(f) does not depend on whether the 180-day limitations period is characterized as “jurisdictional” or as a nonjurisdictional prerequisite to obtaining relief. Even in the latter case, the Court still must consider whether a Board decision dismissing an appeal based on expiration of the 180-day limitations period is a “final decision” subject to judicial review. Resolution of what constitutes a “final decision” subject to judicial review requires close examination of Athens.
In
Athens,
the provider had filed a timely administrative appeal challenging several cost adjustments in its Notice of Program Reimbursement, and later sought to amend its appeal to include additional categories of costs that it had not originally sought from the intermediary.
Athens
left no doubt that it considered one of the essential “threshold requirements” giving rise to a “final decision” to be the filing of an administrative appeal within the 180-day limitations period. This is made clear from the court’s approval of the district court’s dismissal of an untimely challenge to a PRRB decision in
John Muir Mem. Hosp. v. Califano,
In light of Athens’ express reference to satisfaction of “the threshold requirements of 42 U.S.C. § 1395oo(f)(l),” and its statement in footnote 4 that, with respect to a “provider [who] failed to timely file its appeal ... a decision by the PRRB not to hear a case on this basis is, by definition, not a ‘final decision,’ ” Athens is properly understood as holding that a plaintiff may obtain judicial review of a PRRB refusal to exercise jurisdiction only if an administrative appeal has been filed within the 180-day limitations period.
Admittedly, this reading does not lead to the most intuitive result. The PRRB decision at issue has the hallmarks of decisions that are commonly considered “final” in other areas of the law. For example, it marks the consummation of the agency’s decisionmaking process and is an action that results in rights having been determined.
See Bennett v. Spear,
Indeed,
Athens
approved of the determination in
Cleveland
that a PRRB dismissal order based on failure to satisfy the § 1395oo(a) amount-in-controversy provision — another threshold statutory requirement — was a “final decision” within the meaning of that statute. Hence, there is some tension in the conclusion that the PRRB decision in
Cleveland
was a “final
*65
decision,” but the PRRB decision in
John Muir
was not. One can reconcile that tension in perhaps two ways: first, as defendant suggested at the motions hearing here, the 180-day limitations period stands in a different stead than the amount-in-controversy requirement because of the government’s recognized interest in imposing finality on the Medicare reimbursement process;
8
and second, where there is a “real dispute” over whether a threshold requirement of § 1395oo (f) is satisfied, such as with the amount-in-controversy in
Cleveland
(in contrast to the parties’ agreement in
Muir
that 180 calendar days from the final NPR had run), then the Board’s resolution of that issue will constitute a judicially reviewable “final decision.”
See St. Joseph’s Hosp. of Kansas City v. Heckler,
This Court must follow
Athens’
instruction that, with respect to a “provider [who] failed to timely file its appeal ... a decision by the PRRB not to hear a case on this basis is, by definition, not a ‘final decision.’ ”
Athens,
II. Equitable Tolling
Even if the PRRB decision is a “final decision” subject to judicial review under § 1395oo (f), plaintiffs may not ob
*66
tain relief thereunder unless the statute authorizes “equitable tolling.” Defendant contends that the explicit language of the statute shows that Congress intended to achieve finality by imposing a firm limitation on the time period within which payment determinations may be challenged. See Def.’s Mem. at 19-20. Defendant urges that equitable tolling therefore must be rejected here, just as it was rejected by the Supreme Court in the tax collection context in
United States v. Brockamp,
In response, plaintiffs contend that, under Supreme Court precedent, there is a presumption in favor of equitable tolling, relying primarily on
Irwin v. Dep’t of Veterans Affairs,
The starting point in determining whether equitable tolling is available under § 1395oo (f) is Congressional intent, rather than the applicability of one presumption or another. This is clear from the cases cited by both plaintiffs and defendant.
See Brockamp,
Irwin,
however, offers little instruction on whether Congress intended equitable tolling to apply under a regime such as the Medicare program.
Irwin
was a Title VII case that considered whether the limitations period for filing a Title VII suit against the federal government was subject to equitable tolling, as it was for “private” employers.
See
Nor does
City of New York
advance the analysis in any significant measure. There, the Supreme Court considered whether equitable tolling applied to the 60-day judicial review period for agency determinations as to Social Security “disability” status, and held that equitable tolling was available. But the language of the relevant statute, 42 U.S.C. § 405(g), was materially different.
See
Brockamp
offers the most insightful guidance on discerning Congressional intent with respect to equitable tolling, indicating that in a complex regulatory regime, courts should focus on the language of the statute and the “nature of the underlying subject matter.”
*68 Applying these considerations here, the Court’s assessment is that § 1395oo sets forth in “emphatic” language that the 180-day limitations period shall apply, albeit to a slightly lesser degree than does 26 U.S.C. § 6511. Section 1395oo (a)(3) states that a provider may obtain a Board hearing in enumerated scenarios “if’—
(3) such provider files a request for a hearing within 180 days after notice of the intermediary’s final determination under paragraph l(A)(i), or with respect to appeals under paragraph (l)(A)(ii), 180 days after notice of the Secretary’s final determination, or with respect to appeals pursuant to paragraph (1)(B) or (C), within 180 days after notice of such determination would have been received if such determination had been made on a timely basis.
Section 1395oo also contains a provision concerning accumulation of interest that is tied to the 180-day limitations period:
(f)(2) Where a provider seeks judicial review pursuant to paragraph (1), the amount in controversy shall be subject to annual interest beginning on the first day of the first month beginning after the 180-day period as determined pursuant to subsection (a)(3) of this section ....
42 U.S.C. § 1395oo (f)(2). As in the tax refund setting, moreover, the limitations provisions appear “in a highly detailed technical manner.”
To be sure, the statutory language addressing the limitations period here is not as complex as that reviewed in
Brockamp.
Nonetheless, the language on its face bears no indicia that equitable tolling is intended, and the D.C. Circuit, in
HCA Health Servs. of Oklahoma, Inc. v. Shalala,
And there is more. As noted earlier, the Secretary has longstanding and comprehensive regulations governing extension of the administrative appeal period and also reopening of payment determinations by an intermediary or, in an appropriate case, the Board or Secretary. 42 C.F.R. §§ 405.1841(b), 405.1885. Brock-amp did not have occasion to consider whether an agency’s promulgation of rules that effectively extend or toll the time for seeking administrative relief would have affected its analysis. But because those regulations were promulgated pursuant to the Secretary’s statutory authority, and have been validated by the D.C. Circuit and the Supreme Court, they must weigh in this calculus.
The regulations governing extension of the administrative appeal period and reopening of old decisions are very detailed — comparable to the detailed timing provisions at issue in
Brockamp.
They generally establish three years as the outer limit for reopening where one of the showings enumerated in the regulation has been made, and like the provision reviewed in
Brockamp,
the time limitations are set forth in “unusually emphatic form,” and
*69
“in a highly detailed technical manner, that, linguistically speaking, cannot easily be read as containing implicit exceptions.”
See
HCA Health Servs.
held that the Secretary’s reopening regulations fell “comfortably” within her rulemaking authority under 42 U.S.C. §§ 1302 and 1395hh.
In
Your Home Visiting Nurse Servs., Inc. v. Shalala,
The right of a provider to seek reopening exists only by grace of the Secretary, and the statutory purpose of imposing a 180-day limit on the right to seek Board review of NPRs, see 42 U.S.C. § 1395oo(a)(3), would be frustrated by permitting requests to reopen to be reviewed indefinitely.
Title 42 CFR § 405.1885 (1997) generously gives them [providers] a second chance to get the decision changed— this time at the hands of the intermedi *70 ary itself, but without the benefit of administrative review. That is a “suitable” procedure, especially in light of the traditional rule of administrative law that an agency’s refusal to reopen a closed case is generally “ ‘committed to agency discretion by law1 ” and therefore exempt from judicial review.... As for the alleged “double standard,” given the administrative realities we would not be shocked by a system in which underpayments could never be the basis for reopening.... [E]ach of the tens of thousands of sophisticated Medicare-provider recipients of these NPRs is generally capable of identifying an underpayment in its own NPR within the 180-day time period specified in 42 U.S.C. § 1395oo(a)(3).
Brockamp
suggests that the Court may consider, albeit secondarily, whether “the nature of the underlying subject matter” supports the Court’s assessment of the statutory language.
See
III. Mandamus
Plaintiffs contend that, in the event they are precluded from obtaining relief under § 1395oo (f), they are entitled to a writ of mandamus requiring new DSH determinations under 28 U.S.C. § 1361 because defendant has a “non-discretionary duty to use correct SSI percentages” when determining DSH payments. See Pis.’ Mem. at 20-22. Plaintiffs further assert that defendant has a nondiscretionary duty to reopen intermediary determinations “if it is established that such determination ... was procured by fraud or similar fault of any party to the determination or decision” — a point they consider established by the Baystate decisions issued by the Board and this Court. Pis.’ Mem. at 12, 21 (quoting 42 C.F.R. § 405.1885(d)). Defendant counters that the Court lacks mandamus jurisdiction because plaintiffs fail to satisfy the prerequisites for mandamus relief. See Def.’s Mem. at 12-18; Def.’s Reply at 8-9. The relevant duty for the mandamus inquiry, in defendant’s view, is whether the Secretary had a nondiscretionary duty to extend the 180-day limitations period or to reopen the NPR. Under the regulations, both of those matters are plainly discretionary, which would preclude mandamus relief. Defendant further contends that plaintiffs’ failure to exhaust administrative remedies precludes them from obtaining mandamus relief.
Mandamus is a drastic remedy to be invoked only in extraordinary situations and to be granted only when essential to the interests of justice.
See Oglala Sioux Tribe of Pine Ridge Indian Reservation v. U.S. Army Corps of Eng’rs,
The parties focus primarily on whether defendant owes plaintiffs a nondiscretionary duty, but identification of the relevant duty has shifted as the litigation has developed. Plaintiffs’ complaint alleges that the nondiscretionary duty owed to providers is a “non-discretionary duty to use correct *72 SSI percentages” when determining DSH payments. Compl. ¶¶ 62, 64; see Pis.’ Mem. at 20. In their merits brief and at the motions hearing, however, plaintiffs rely almost exclusively on defendant’s duty to reopen and revise a determination whenever “fraud or similar fault of any party” is established. See Pl.’s Mem. at 21-22 (quoting 42 C.F.R. § 405.1885(d)).
Plaintiffs fail to establish a nondiscretionary duty to act in either formulation. With respect to the so-called “duty to use correct SSI percentages” in determining DSH payments, plaintiffs misconstrue the ease law. This Court has previously held that the “best available data” standard, long-recognized in the case law as governing other Medicare reimbursement determinations, governs the validity of SSI percentages, not some abstract standard of “correctness” or perfection.
See Baystate,
Even recasting plaintiffs “duty” argument as a duty to determine the SSI percentages based on the “best available data,” plaintiffs would not succeed. The failure to use the “best available data” — ■ or to use “correct” SSI percentages for that matter — is, in essence, an allegation that the intermediary’s determination was “inconsistent with the applicable law.” The regulations require reopening of an NPR in this circumstance only where “CMS ... [pjrovides notice to the intermediary that the intermediary determination ... is inconsistent with the applicable law, regulations, CMS rulings, or CMS general instructions in effect, and as CMS understood those legal provisions at the time the determination or decision was rendered by the intermediary.” 42 C.F.R. § 405.1885(b)(l)(i). As defendant points out, “CMS has never explicitly (or implicitly) notified plaintiffs’ intermediaries that their determinations were inconsistent with applicable law,” and, indeed, defendant’s position is that those determinations involve, at worst, a “flawed data” problem, not any inconsistency with the law. 14 See Def.’s Mem. at 14-15. In the absence of CMS issuing a notice to the intermediary stating that the determination is inconsistent with applicable law, there is no mandatory duty to reopen a payment determination.
Plaintiffs’ main contention, in any event, is that they are entitled to mandamus relief based on defendant’s duty to reopen payment determinations procured by fraud.
See
Pl.’s Mem. at 21-22 (discussing 42 C.F.R. § 405.1885(d)). In their view, the
Baystate
decisions issued by the Board in 2006 and this Court in 2008 establish that the data flaws underlying their NPRs were “deliberately concealed” by CMS, which requires reopening under the fraud provision “at any time.”
Id.
at 22. There are two problems with this argument.
*73
First, nothing in either of the
Baystate
decisions reflects a finding that CMS “deliberately concealed” the data flaws at issue or otherwise engaged in fraud. Rather, the Board simply found that “ ‘that CMS knew or should have known at least by 1993 that there was a problem with the SSI data received from SSA,’ ” and thus rejected the contention that CMS had used the “best available data.”
Baystate,
Second, and equally significant, plaintiffs have failed to exhaust their administrative remedies. As noted earlier, exhaustion of administrative remedies is a prerequisite to the extraordinary remedy of mandamus, unless exhaustion would be futile.
See Monmouth,
There is no allegation in the complaint that plaintiffs ever sought to reopen their NPRs based on fraud, and they admitted as much at the motions hearing. Their only excuse is that they anticipate difficulties in obtaining information from the agency to support their claim of fraud. But by plaintiffs’ own account, they believe evidence in the Board’s
Baystate
administrative record supports their allegations of fraud, and that record was long-ago filed with this Court in the
Baystate
civil action.
See Baystate Med. Ctr. v. Leavitt,
Civil Action No. 06-1263, Notice of Filing of Administrative Record (D.D.C. filed Nov. 22, 2006). Moreover, plaintiffs have other means for obtaining information in support of their claim, such as the Freedom of Information Act. Plaintiffs suggested at the motions hearing that, even if they obtain evidence demonstrating fraud, a request for reopening is likely to be unsuccessful, and defendant’s litigation counsel suggested the same.
15
But as was observed recently in
Bradley Mem. Hosp. v. Leavitt,
*74 Should plaintiffs exhaust their administrative remedies, and then return to court with evidence that establishes fraud or concealment with respect to the calculation of the SSI percentages, a court may consider their request for mandamus relief anew. But at this time, plaintiffs have fallen far short of alleging facts that would establish their entitlement to the extraordinary remedy of mandamus. 16
IV. Availability of Relief under 28 U.S.C. § 1331
As a last resort, plaintiffs invoke the federal question statute, 28 U.S.C. § 1331, as a basis for bringing their claims for relief. Plaintiffs contend that if judicial review of their challenges is not available under § 1395oo (f) or the mandamus statute, they are entitled to bring their claims for relief directly under § 1331. Defendant responds that Congress has disallowed judicial review of Medicare claims under § 1331, as set forth in 42 U.S.C. § 405(h) and § 1395Ü, instead choosing to channel judicial review under § 1395oo. The Court agrees.
As the D.C. Circuit explained in
Monmouth,
§ 1395oo sets forth “detailed instructions on the means for seeking review of payment determinations,” and in tandem with that provision, “[§ ] 1395Ü generally forecloses other avenues of review by incorporating the review-limiting provisions of the Social Security Act, 42 U.S.C. § 405(h).”
The findings and decision of [the Secretary of HHS] after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of [the Secretary of HHS] shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the [Secretary of HHS], 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.
Monmouth,
To be sure, the Supreme Court has recognized a narrow exception to § 405(h) where its application “would not simply channel review through the agency, but would mean no review at all.”
See Shalala v. Illinois Council on Long Term Care,
CONCLUSION
For the foregoing reasons, the Court will grant defendant’s motion to dismiss. Plaintiffs’ claims for relief under 42 U.S.C. § 1395oo and in the nature of mandamus will be dismissed for failure to state a claim upon which relief can be granted. Plaintiffs’ claims for relief directly under 28 U.S.C. § 1331 will be dismissed for lack of subject matter jurisdiction. A separate order has been issued on this date.
Notes
. For ease of reference, the memorandum in support of defendant's motion to dismiss and reply brief will be cited as “Def.s’ Mem.,” and “Def.s' Reply,” respectively. Plaintiffs’ opposition brief will be cited as “Pis.' Mem.”
. CMS was known as the Health Care Financing Administration during the fiscal years at issue. Hence, the references to CMS throughout this opinion encompass HCFA as well.
. The citations to the Code of Federal Regulations are to the 2007 version in effect at the time the Board issued the decision under review. Defendant notes that the Secretary has amended the regulations since then, but the applicability of the amendments is limited to " 'appeals pending as of, or filed on or after, August 21, 2008,' " with exceptions not applicable here. See Def.’s Mem. at 6 n. 3 (quoting 73 Fed. Reg. 30,190 (May 23, 2008)). Plaintiffs agree that the 2007 version applies. Pis.’ Mem. at 21.
. The complaint is silent on the exact date the NPRs were issued. Defendant represents that the NPRs were issued during the 1989-1996 time frame, consistent with the two-to-three year cost settlement process described in Baystate, and plaintiffs have not disputed this. See Def.'s Mem. at 7. The exact dates are not, in any event, material to the resolution of defendant's motion.
. The CMS Administrator, acting for the Secretary, reversed the Board’s decision granting relief to Baystate, reasoning that CMS had relied on the "best available data" and that the omissions were not significant.
Baystate,
.
See Ahmed v. Dep't of Homeland Security,
.
Athens Comm. Hosp.
was modified on rehearing with respect to an issue unrelated to this "final decision” question.
See
. As defendant noted at the motions hearing, this interest was recognized in
Califano
v.
Sanders,
. This understanding of
Athens
is in accord with the decisions of other courts that have considered the consequences of a provider’s failure to comply with the 180-day limitations period, notwithstanding a provider's proffer of equitable reasons in support of an extension or reopening.
See St. Joseph's Hosp. of Kansas City,
Plaintiffs contend that these cases are not applicable because they involve requests for a "good cause” extension of the 180-day limitations period in accordance with 42 C.F.R. § 405.1841, whereas plaintiffs never asked the Board for a "good cause” extension of the appeal period, instead requesting equitable tolling. See Pis.' Mem. at 19 n. 8. But plaintiffs fail to recognize that, to the extent those cases discuss the law governing what is a “final decision” within the meaning of § 1395oo (f) — one of the main issues here— and do so in a manner that sheds light on the correct interpretation of Athens, they are, of course, relevant.
. For this reason, plaintiffs’ reliance on
Bradford Hospital v. Shalala,
. Section 6511 states that a “[cjlaim for ... refund ... of any tax ... shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later, or if no return was filed ... within 2 years from the time the tax was paid.” 26 U.S.C. § 6511(a)
. For example, defendant asserts that ''[t]he Medicare program involves nearly $212 billion in annual payments to over 38,000 providers” as well as other entities, that it processes "more than a billion claims per year,” and that 25 contractors process $202 billion in claims for about 6,000 hospitals, 15,000 skilled nursing facilities, and other providers of institutional care under Medicare Part A.” See Def.’s Mem. at 21-22 (citing http://www. cms.hhs.gov/CapMarketUpdates/Downloads/ 2007CMSstat.pdf). Although plaintiffs do not dispute these figures, they are technically beyond the scope of a Rule 12(b)(6) motion.
. The mandamus statute provides that "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361.
. Even if this Court's
Baystate
decision operated as a
de facto
notice of inconsistency with applicable law, § 405.1885(b)(l)(i) would not impose a duty on CMS or the intermediaries to reopen the NPRs at issue. This is because, with respect to inconsistency with applicable law, the regulation imposes a duty to reopen only if the notice of inconsistency occurs “within the three-year period” after the date of the intermediary's determination (i.e., NPR issuance), effectively excluding NPRs older than three years from the mandatory reopening.
See Baptist Mem. Hosp. v. Johnson,
. At the motions hearing, a Department of Justice attorney suggested for the first time during rebuttal argument that the fraud reopening provision is not applicable if the person allegedly acting fraudulently is the Secretary because the Secretary is not a “party" to the intermediary’s determination within the meaning of the regulation. This contradicts defendant’s earlier statement in its brief that plaintiffs should be required to exhaust their administrative remedies with respect to the allegation of fraud under § 405.1885(d). See Def.'s Reply at 9 n. 5. Because the attorney presenting rebuttal offered only a post hoc interpretation of the regulation that is inconsistent with the brief approved by the agency, the Court gives the statement no weight.
. In Count Three of the complaint, plaintiffs seek substantially the same mandamus relief under the All Writs Act, 28 U.S.C. § 1651(a).
See
Compl. ¶¶ 63-64. It is well-settled, however, that "the Act itself is not a grant of jurisdiction.”
In re Tennant,
. Section 1395Ü provides that "[t]he provisions ... of section 405 of this title, shall also apply with respect to this subchapter to the same extent as they are applicable with respect to subchapter II of this chapter, except that, in applying such provisions with respect to this subchapter [Medicare], any reference therein to the Commissioner of the Social Security Administration shall be considered a reference to the Secretary or the Department of Health and Human Services, respectively.”
. In Northeast Hosp., the Secretary has conceded that a provider who filed a timely appeal contesting its DSH payment based on the defects described in Baystate (and raised by plaintiffs in this case) was entitled to a remand for recalculation of its DSH payment. See Northeast Hosp., Def.’s Mem. in Supp. of Mot. for Summ. J. at 5-6 (filed Oct. 2, 2009).