Opinion for the Court filed by Circuit Judge TATEL.
In these consolidated cases, two hospitals seek mandamus to compel the Secretary of Health and Human Services to reopen final Medicare reimbursement determinations regarding inpatient services provided by the hospitals. Concluding that the Secretary had no clear duty to reopen the payment decisions, the district court dismissed both cases for lack of mandamus jurisdiction. We agree with the district court on all counts and therefore affirm.
I.
The central issue presented in these cases has been the focus of extensive litigation culminating in two controlling decisions from this
court
— In
re Medicare Reimbursement Litigation,
Under the Medicare Act, the Secretary of Health and Human Services (HHS) reimburses hospitals for covered inpatient services provided to Medicare beneficiaries. 42 U.S.C. § 1395ww. HHS administers these payments through the Centers for Medicare and Medicaid Services, formerly the Health Care Financing Administration (HCFA). To obtain reimbursement, hospitals submit yearly cost reports to fiscal intermediaries — typically private insurance companies acting on behalf of the Secretary. After auditing the cost report, the intermediary issues a Notice of Program Reimbursement (NPR), in which it determines the amount owed to the hospital for the cost reporting year at issue. 42 C.F.R. § 405.1803. Hospitals can appeal that determination to the Provider Reimbursement Review Board (“the Board”) and then to federal district court. 42 U.S.C. § 1395oo(a), (f).
Hospitals serving a disproportionately high number of low-income Medicare patients receive increased reimbursements known as “disproportionate share hospital” (DSH) adjustments. Congress has set forth a formula for determining DSH adjustments based, in part, on the number of days that a hospital treated patients entitled to state Medicaid payments.
Id.
§ 1395ww(d)(5)(F)(vi)(II). Previously, HCFA interpreted this statutory formula to include only those days for which hospitals actually received Medicaid payments — an interpretation that the Fourth, Sixth, Eighth, and Ninth Circuits struck down as inconsistent with the Medicare Act.
Cabell Huntington Hosp., Inc. v. Shalala,
The two cases before us involve the intersection of Ruling 97-2 and HHS regulations authorizing the reopening of intermediary reimbursement determinations. Pursuant to 42 C.F.R. § 405.1885(a) (1997), as that regulation existed at all relevant times, an intermediary’s reimbursement determination “may be reopened” if the affected hospital moves to do so “within 3 years of the date of the notice of the intermediary determination.” Unlike NPR determinations themselves, an intermediary’s decision whether to reopen a determination under this provision is both discretionary and unreviewable.
Your Home Visiting Nurse Servs., Inc. v. Shalala,
In
Monmouth,
the first of our two previous decisions regarding this issue, we concluded that Ruling 97-2 constitutes notice under section 405.1885(b) that PICFA’s former method of calculating DSH adjust
Relying on our decisions in Monmouth and In re Medicare, the two hospitals in these consolidated appeals seek mandamus to compel the Secretary (through her intermediaries) to reopen them cost reports and apply the more favorable DSH calculation adopted in Ruling 97-2. See 28 U.S.C. § 1361. The first hospital, Baptist Memorial, challenges a 1993 NPR that determined, pursuant to HCFA’s former eligible days calculation, that it was ineligible for a DSH adjustment for its FY 1991 cost report. In 1994, Baptist appealed that decision to the Board. While that appeal was still pending, HCFA issued Ruling 97-2. The Board then advised Baptist of the filing schedule for the appeal and warned that its case would be dismissed if Baptist missed the applicable deadlines. Despite this reminder, Baptist failed to submit its “position papers” on time, and the Board consequently dismissed its appeal for want of prosecution in 1998. Four years later, Baptist filed this mandamus action in the U.S. District Court for the District of Columbia, seeking an order compelling the Secretary to reopen and correct the 1993 reimbursement determination pursuant to the eligible but unpaid days calculation set forth in Ruling 97-2.
The second hospital before us, St. Agnes Medical Center, challenges its intermediary’s 1992 NPR determination regarding its FY 1990 cost report. In 1995, St. Agnes asked the intermediary to reopen the cost report and provide a DSH adjustment, but the intermediary rejected that request. St. Agnes appealed that decision to the Board, and on June 4, 1997 (after Ruling 97-2’s issuance), the parties settled, agreeing that the intermediary would reopen St. Agnes’s cost report to apply a DSH adjustment. After doing so and applying the former eligible days calculation, however, the intermediary informed St. Agnes that it failed to meet the qualifying threshold for an adjustment. Then, in 1999, the Board dismissed St. Agnes’s appeal on the ground that it lacked jurisdiction over that appeal in view of
Your Home Visiting Nurse Services, Inc. v. Shalala,
The district court dismissed both mandamus actions for lack of jurisdiction. Noting that the two hospitals sought reopening of NPRs issued more than three years prior to Ruling 97-2’s issuance in 1997, the court concluded that neither hospital could show that it had a clear right to relief or that the Secretary had a nondiscretionary duty to act under the regula
Baptist and St. Agnes appealed the denials of their mandamus petitions. Because both eases require us to answer the same principal question — whether section 405.1885(b) mandates reopening of NPRs issued more than three years prior to issuance of Ruling 97-2 where the hospitals had appeals pending at that time — we consolidated the appeals.
II.
The Mandamus Act grants district courts original jurisdiction over “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. A court may grant mandamus relief “only if: (1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to plaintiff.”
Power,
In Monmouth and In re Medicare, we held that the Secretary had a clear duty to reopen the hospitals’ NPRs pursuant to section 405.1885(b) because the notice of inconsistency — i.e., Ruling 97-2— occurred within the three-year period after the date of the challenged reimbursement determinations. Baptist and St. Agnes concede, as they must, that unlike the hospitals in Monmouth and In re Medicare, they seek reopening of “intermediary determinations that were issued before the three-year reopening window, as measured from the issuance of HCFAR 97-2.” Appellants’ Br. 26. They nonetheless contend that the district court erred in dismissing their mandamus actions because Ruling 97-2’s “appeal provision” imposes on the Secretary a nondiscretionary duty to reopen their cost reports. The portion of Ruling 97-2 on which the hospitals rely states:
We will not reopen settled cost reports based on this issue. For hospital cost reports that are settled by fiscal intermediaries on or after the effective date of this ruling, these [eligible but unpaid] days may be included. For hospital cost reports which have been settled prior to the effective date of this ruling, but for which the hospital has a jurisdictionally proper appeal pending on this issue pursuant to either 42 CFR 405.1811 or 42 CFR 405.1835, these [eligible but unpaid] days may be included for purposes of resolving the appeal.
Homing in on the last sentence of this paragraph, the hospitals argue that Ruling 97-2 creates a mandatory duty to reopen their cost reports because they had “jurisdictionally proper appeal[s]” pending before the Board when HCFA issued the 1997 ruling.
In arguing that the appeal provision compels the Secretary to reopen their cost reports, however, the hospitals lose sight of the fact that under
Monmouth
and
In re Medicare
it is section 405.1885(b), not Ruling 97-2, that creates the obligation to reopen. Ruling 97-2 merely serves as the notice of inconsistency that triggers the Secretary’s duty to reopen and revise
As the district court explained, moreover, even if the appeal provision had any effect here, that provision says only that eligible but unpaid days “may” be included if a hospital has an appeal pending on the issue: “While the above paragraph [containing the appeal provision] plainly
permitted
the Secretary and the Review Board to rely on HCFAR 97-2’s policy change when settling appeals pending at the time HCFAR 97-2 was issued, it does not require them to do so.”
Baptist,
Reinforcing this conclusion, the appeal provision specifies that eligible but unpaid days may be included “for purposes of resolving the appeal” under 42 C.F.R. §§ 405.1811 or 405.1835. In other words, the appeal provision is just that: it pertains to the resolution of appeals, not to the reopening of settled cost reports under section 405.1885. Because neither Baptist nor St. Agnes had any such appeal pending when it brought its mandamus action in the district court, there is no extant appeal to “resolv[e]” through application of the new eligible days calculation.
Baptist and St. Agnes further contend that even if Ruling 97-2 creates no duty to reopen, the filing of their appeals tolled the three-year reopening limitation. But because neither hospital pressed this argument in the district court, they cannot do so for the first time here.
See Adams v. Rice,
III.
Having disposed of the principal argument shared by Baptist and St. Agnes, we turn to the arguments unique to each hospital.
Baptist Memorial
Baptist raises an alternative theory of mandamus relief based on a 1994 policy memorandum HCFA issued in the wake of the Sixth Circuit’s decision in
Jewish Hospital v. Secretary of Health & Human Services,
If, as Baptist alleges, the Sixth Circuit Memorandum qualifies as proper notice of inconsistency, then it would indeed trigger section 405.1885(b)’s duty to reopen. This is because HCFA issued the memorandum in 1994 — comfortably within the three-year period following Baptist’s 1993 NPR. Although it is unclear from the record whether HCFA ever conveyed the new policy articulated in the Sixth Circuit Memorandum to intermediaries (as required to qualify as notice under section 405.1885(b)), we need not decide whether the memo triggered a “clear right to relief” or “duty to act” (the first two requirements for mandamus relief) because Baptist has failed to show that there was “no other adequate remedy available” (the third requirement for mandamus relief).
Power,
Baptist filed its appeal with the Board just a few days after the Sixth Circuit issued its decision in
Jewish Hospital—
controlling authority directly supporting Baptist’s argument that the intermediary should have calculated its DSH adjustment using eligible but unpaid days. And while that appeal was pending, HCFA issued the Sixth Circuit Memorandum, which adopted
Jewish Hospital
as binding on intermediaries. Yet instead of raising the
Jewish Hospital
decision in its appeal to the Board and then, if necessary, seeking subsequent court review pursuant to 42 U.S.C. § 1395oo(f), Baptist abandoned its appeal altogether. As the district court rightly concluded, Baptist has offered no “compelling reason for its failure to pursue these avenues of relief.”
Baptist,
Baptist insists that it did supply a valid reason for abandoning its appeal: “the Hospital reasonably believed that it was unnecessary for it to pursue its appeal of fiscal year 1991 before the [Board] because the Hospital was of the understanding that the intermediary was required to unilaterally reopen the cost report to make the DSH adjustment by including” eligible but unpaid days. Appellants’ Br. 50 (internal quotation marks omitted). But for purposes of mandamus jurisdiction, the question is whether Baptist had an adequate remedy. It did — the administrative appeal that it subsequently abandoned. Even though this remedy may have been, in Baptist’s view, redundant (because Baptist thought the intermediary was obligated to reopen the NPR on its own initiative), that hardly renders it inadequate. Having failed to pursue the adequate remedy afforded by the administrative and judicial appeal processes, Baptist cannot now seek to vindicate its alleged right to relief through mandamus.
St. Agnes
St. Agnes’s alternative argument suffers from the same flaw. It contends that once the intermediary reopened its cost report pursuant to the 1997 settlement agreement, the intermediary was obligated to include eligible but unpaid days in the DSH calculation. According to St. Agnes, that obligation derives from three
Your Home,
however, only barred St. Agnes from seeking review of the intermediary’s refusal to reopen the FY 1990 cost report; it did not prevent St. Agnes from challenging the reimbursement determination made by the intermediary
after
the intermediary reopened the cost report in 1997. As the Supreme Court explained, “an intermediary’s affirmative decision to reopen and revise a reimbursement determination ‘shall be considered a separate and distinct determination’ to which the regulations authorizing appeal to the Board are applicable.”
Your Home,
Yet St. Agnes made no effort to appeal the intermediary’s 1997 reimbursement determination to the Board, and it gives us no persuasive reason to believe it could not have done so. Nor did it take any other action to contest the implementation of the settlement agreement until it filed its mandamus action in the district court seven years later. Because St. Agnes, like Baptist, failed to seek relief through available administrative and judicial review procedures, it cannot do so now through mandamus.
IV.
For the foregoing reasons, we affirm the district court’s dismissals of both mandamus actions.
So ordered.