Mary Bartlett, on Behalf of Josephine Neuman v. Otis R. Bowen, Secretary, Department of Health and Human Services

BARTLETT, Mаry of America STATES Behalf UNITED Neuman, Josephine Appellant, MEYER, et al. Christine BOWEN, Secretary, Department Otis R. of Health and Human Services. 85-6169. No. No. 85-5233. Appeals, United States of Appeals, States Court District Columbia Circuit. District of Columbia Circuit. Rehearing En Banc Granted Argued Feb. 1986. April 30, Vacated 1987. Opinion Decided March Opinion Reinstated Judgment and Panel As March Amended 31, 1987. July Rehearing En Banc Order June Rehearing Rehearing and En Banc Denied Opinion and Panel Reinstated Vacated 31, 1987. July 31,1987. July Rehearing and Rehearing En Banc Denied WALD, Judge; Chief Before 31, 1987. July EDWARDS, ROBINSON, MIKVA, BORK, GINSBURG, BADER RUTH BUCKLEY, SILBERMAN, STARR, GINSBURG, and D.H.

WILLIAMS Judges.

Circuit

ORDER

PER CURIAM. rehearing en for suggestion

Appellant’s full court. circulated

banc been request- thereon was taking of a vote judges of Thereafter, majority

ed. voted in regular active service

the court considera- Upon suggestion.

favor of the is foregoing, it

tion of the banc, court en

ORDERED, by rehearing en suggestion

appellant’s

banc granted and court en ORDERED, by the

FURTHER

banc, judgment opinion hereby be, the same

February

are, vacated. pro- govern further order will

A future

ceedings herein. Guidice,

Stephen Washington, J. Del D.C., appellant. for Robins, Ronald Sp. Atty., S. Asst. U.S. member of the bar of the Court of Florida, vice, pro by special hac leave of court, Joseph diGenova, E. whom Atty., Royce Craig C. and Lamberth R. Lawrence, Attys., Washington, Asst. U.S. D.C., brief, appellee. were on for BORK, Before EDWARDS Circuit WRIGHT, Judges, and Senior Circuit Judge.

Opinion filed for the Court Circuit Judge EDWARDS and Senior Circuit Judge WRIGHT.

Dissenting opinion filed Circuit Judge BORK. EDWARDS, Judge,

HARRY T. Circuit WRIGHT, and J. SKELLY Senior Circuit Judge: below, Bartlett, Mary plaintiff

Appellant Court on behalf brought in the District suit Josephine sister, Neu- her the deceased constitutionality challenged the man. She Act on the Part A of the Medicare payment of partial ground bar her free exercise of burdened benefits Dis- faith. The Science sister’s Christian lack complaint for trict Court dismissed ary, Lynn she entered subject matter because House of Potomac, $1,000 a Christian facility, Science failed to meet the amount claim she such care. May, where received controversy by the Act required Medicare 1976, during illness, spell the same Neu- of benefit decisions. On judicial review Lynn man left House entered the jurisdic- appellant argues that appeal, Washington Incurables, Home for a non- the Act do not provisions of Medicare tional facility, Christian Science where she re- judicial her constitution- preclude review mained, except for a week’s treatment at alternative, maintains In the she al claim. Georgetown University Hospital, until her deny process provisions these her due July, death in they do equal protection of law if and died, review. Before she bar Neuman claimed and received Medicare $377 benefits for Act Upon careful review the Medicare post-hospital provided by care extended legislative history, pursuant to and and Lynn House A the under Part of Medicare guidance given by 1395x(y)(l) (1982). Act. See U.S.C. § Robison, 361, 94 in Johnson v. death, Bartlett, Mary After Neuman’s ex- (1974), find we 39 L.Ed.2d estate, еcutrix Neuman’s filed a Medi- intend did not to bar post-hospital care claim of for the $286 challenges to the constitutional had extended care Neuman received at the underlying Because we find that Con- Act. Washington Security Home. The Social provisions pre- did to gress not intend initially Administration denied claim claim, appellant’s we nor- clude review of upon relying and reconsideration on 42 no need her mally should have to reach (1982),1 1395x(y)(2)(B) which bars U.S.C. § However, arguments. be- payment of A for Part benefits extended suggested dissenting opinion cause has nursing facility in a skilled unaffili- care Congress may foreclose all anyone to ated with Christian Science who constitutionality review of the of a has, illness, during spell same al- statute, We we have addressed this issue. for ready received such benefits extended that there would be a clear violation believe nursing in a skilled care Christian Science pre- process of due if in fact did judge An facility. administrative law any aggrieved for opportunity clude an (“ALJ”) on upheld appeal, denial and one of claimant obtain review of Appeals Security of the Social Council its enactments. adopted the AU’s decision Administration Secretary of the the final decision as Background (the I. Health and Human Services “Secre- tary”). Neuman, Josephine a Christian Science Secretary’s

practitioner, dispute illness and suffered terminal Bartlett does not nursing reading provision. Act’s required of the Medicare skilled care. Febru- (2) provision Notwithstanding any 1395x(y) other 42 U.S.C. reads as follows: § part may subchapter, payment under A this (y) Post-hospital Christian extended care in furnished an individ- not be made for services nursing Science skilled facilities facility nursing para- skilled to which ual in a (1) nursing facility” also The term "skilled (1) graph applies such individual unless oper- includes a Christian Science sanatorium elects, regulations, for a accordance with ated, certified, by First or listed and spell as of illness have such services treated Scientist, Christ, Boston, Church setts, Massachu- pur- post-hospital care services for extended (except purposes only for of subsec- but part; payment part A poses such under and section) (a)(2) respect to tion of this may post-hospital extended not made ordinarily items and services furnished care services— inpatients, payment such an institution to and respect provid- be made with to services (B) during only such such furnished an individual ed in such institution limitations, nursing conditions, facility spell of illness in a skilled extent and under such apply (in paragraph such requirements does not after lieu of which and addition to or in during limitations, conditions, requirements have furnished to him services been nursing facility spell skilled applicable) may provided in such otherwise regulations. paragraph applies. such ty Act’s Act into the Medicare Act the Medicare bar U.S.C. is that Her claim solely estate Neuman’s denies federal penalizes 1395Ü payment Neuman’s Christian Science any account of mandamus over claim free exercise faith contravention “arising under” the Medicare Act. Section Amendment. The then- First clause of the 1395ff(b)(2) “judicial bars review” of she had no au- recognized that Secretary “determination” of “the amount of benefits challenges on constitutional thority rule part A” of Medicare Act that Act,2 thus denied Bartlett’s she Secretary, “final become a decision” addressing the merits of her without claim controversy” if the “amount is less than challenge. $1,000. initially denied District Court Secretary’s legis- motion because her administrative Having “[t]he exhausted history brought lative is devoid remedies, action [of § 1395ff] Bartlett convincing’ a con- District Court for the ‘clear and evidence of the United States February, gressional purpose preclude judicial 1982. to re- District of Columbia claims,” her claim that the Christian of substantial constitutional She reasserts view of the Medicare Act bur- provisions plaintiff precluded and that “if were Science noted right to free exercise Neuman’s judicial den of her claim in this all Amendment and religion the First under case, ques- the most serious constitutional protection of the under deny equal her law present.”6 be held tions would The court Bartlett further Fifth Amendment. the independent in the alternative that it had defining “spell provision the contends that Bartlett’s federal over right Neuman’s to violates of illness”3 also 405(h).7 claim, notwithstanding After § process the protection and due equal 602, Ringer, 466 Heckler v. Fifth Amendment. decided, 2013, L.Ed.2d 622 however, Secretary the renewed the motion Bart- Secretary moved dismiss it, granted finding and court dismiss subject juris- for lack of matter lett’s action opinion in Supreme Court’s that case jurisdictional provi- two diction based on jurisdictional on issues.8 Act, be conclusive the Medicare U.S.C. sions 405(h) (1982).5 appeal, Bartlett claims that 405(h)4 1395ff(b)(2) On and Section §§ §§ 1395ff(b)(2) preclude judicial 405(h), do incorporated from Social Securi- 2. Judge See of Administrative Law Decision (June 26, 1981) reprinted Appendix in Joint (C) (in- part the amount of benefits under A 15; ("J.A.”) Weinberger Salfi, also v. see cluding a determination where such amount L.Ed.2d zero) is determined to be Robison, (1975); v. Johnson hearing by the be to a thereon shall Secretary entitled (1974). 39 L.Ed.2d 389 provided same extent is 405(b) 1395x(a) judicial 3. this title and to section U.S.C. Secretary’s final after review of the decision 4. 42 U.S.C. § 405(h) provides: hearing 405(g) provided in as is section such (h) Finality Secretary’s decision of this title. Secretary findings and decision (2) Notwithstanding provisions of sub- hearing binding upon all indi- after shall be (C) (1) paragraph paragraph tion, of this subsec- parties hearing. No were to such viduals who hearing not be to an shall available Secretary findings or decision of the of fact subparagraph of such individual (C) reason tribunal, by any person, shall reviewed controversy less than if the amount in agency governmental except provid- as herein $100; judicial nor shall review be available to States, ed. No action subparagraph by reason of such an individual any employee Secretary, or officer or thereof (C) controversy is less than if the amount brought shall under sections 1331 or 1346 $1,000. arising any claim title 28 recover (D.D. Heckler, F.Supp. 6. Bartlett subchapter. under this C.1983). 1395ff(b) provides: U.S.C. § (b) Appeal by n. 10. individuals at 834 7. Id. Any individual dissatisfied with (D.D.C. Heckler, Dec. 82-0552 No. (a) Bartlett of this determination under subsection 21, 1984), reprinted in J.A. 57. section as to— do, sought. they if As this court her claim view review of ex- protection plained: they rights equal her violate of law. process

and due plaintiff When seeks to invoke [a] the aid of branch on consti- Congress’ 405(h) II. Intent §§ grounds, tutional 1395ff(b)(2) and this court indicated have both begin “pre only congres- general with the clearest evocation We Congress proscribe judicial re intent sional sumption that intends re- is axio view constitutional claims will of administrative action.”9 suf- view presumption presumption can be over fice overcome the matic that this convincing by “clear and evi would not wish to only court come dangers to restrict inherent intended dence” that Thus, party denying argue review.10 forum which to access to legislative government injured scheme to action has in- seeking to read protected by of dem terests that are preclude review bears the burden Con- Congress’ do so.11 stitution.13 onstrating intent only showing This must be in accord Indeed, something of it has become a time- statute, with words of but honored tradition for the legislative history as well.12 find that and lower courts to Con altogether applied gress preclude “clear and con- did not intend to have Courts of particularly rigorous judicial in review constitutional claims in vincing” standard process rights light form the of the serious due concerns fashiоn when constitutional preclusion judicial re- that such would raise.14 These the action over which basis of Physi- Supreme Michigan Academy Family Physicians, 106 S.Ct. at 2135. Court 9. v. Bowen of — 2135, -, 2133, cians, precedent 106 90 could not clearer that the U.S. S.Ct. burden (1986). government clearly 623 falls on the to show L.Ed.2d convincingly Congress judicial its meant Robison, U.S. 94 S.Ct. at 10. See 415 at provisions preclude review of admin- review Gardner, 1168-69; 387 Abbott Laboratories v. istrative action. 1511, 136, 141, 1507, L.Ed.2d 87 S.Ct. 18 U.S. (1967). 681 Sys., 393 Oestereich v. Serv. U.S. 12. See Selective 414, 417, 21 L.Ed.2d 402 Inst., Community 467 11. See Block v. Nutrition (1968) ("Examples legion where literalness are 2450, 2456, 81 L.Ed.2d U.S. 104 language harmony is out of either in (1984) (precluding party stan must meet requirements an or with Act with constitutional showing Congress’ preclude by intent to dard "fairly (citations scheme). organic omit as an whole.” legislative taken in discernible’’ Bell, (D.C.Cir. burden, ted)); Ralpho erroneously v. F.2d this The reverses dissent construction, 1977) (“Recourse judicial concluding provisions at stat canons review history utory is no less constitute a limited waiver of and common sense nec issue narrowly superficial essary appear un that must construed when statute’s terms prove plaintiff they The dis preclude less the can otherwise. ly when silent review than "Congress need not even contends subject.”) sent on that explicit make challenges.” an intention to bar absolutely support for There Smith, (D.C.Cir. Ungar v. 667 F.2d startling Supreme Court this conclusion. The 1981). judicial provisions never held that review of sover should be construed eign immunity; limited waivers See, Michigan Academy e.g., Bowen v. by the case the dissent cited 12; Physicians, 2141 & n. Family 106 S.Ct. at review, provisions judicial for deals not with Robison, 1165; 94 S.Ct. at Bowen v. but a statute of limitations. See Smith, (D.C.Cir. 733 F.2d Cardenas — York, U.S. -, City Newof Smith, 1984); Ungar v. F.2d at 193. Indeed, Su a recent L.Ed.2d 462 Supreme "dispositive" the finds The dissent preme opinion dealing with 1395ff—the § Commodity opinion Futures recent in Court's statutory provision case and in this issue — -, Schor, Trading Comm’n waiver of the dissent to be a limited claimed (1985), which has no 92 L.Ed.2d 675 immunity began analysis, sovereign do, as we — except that it con- to the instant case relevance strong presumption that with "the which the Court unrelated in cerns an situation judicial ac review administrative intends interpretation offered to rejected of a statute Family Michigan Academy tion.” Bowen v. recover, appellees seek to to accommodate benefits which recognize and seek cases Security it is the Social Act which Court cases but line the venerable provides standing and the constitutionality of both sub- on the casts doubt presentation for the judicial review stantive basis preclusion congressional their constitutional contentions.16 foreboding claims.15 This of constitutional om Supreme Court cases and the line of position Ringer, in reiterated its scholarly warnings commentators inous change unwilling its construction of apply courts to modern have moved 405(h) litigant had not for a who exhaust- § convincing” to con standard “clear and ed his administrative remedies.17 These part to avoid gressional enactments aggriev- parties make clear that two cases morass, as we do here. the Act must follow the ed under review procedures set out the Act.18 demanding standard Applying potential constitution eye careful on with a we turn to the Act’s When find that Con infirmity, nonetheless al we 1395ff, however, provision we review § preclude independent did gress intend regarding reach a different conclusion con claim jurisdiction over Bartlett’s gressional preclusion intent as to 405(h) incorporat enacting 42 U.S.C. § action. Section review administrative Medicare Act 1395Ü. ing it into the § 1395ff(b)(l)(C), incorporating by reference 405(h) independent proscribes fed Section 405(g), provides for section jurisdiction for question or mandamus eral in federal district court of “final deci arising claim any action “to recover Secretary as to “the amount sion^]” under Medicare part Act].” A the Medicare [the of benefits [of Ringer clear decisions (b)(2) Court’s Act],” excepts but subsection cases Salfi challenge ly to the constitu establish that controversy “the amount in is less tionality of the Act is a claim “arises $1,000.” pro than When we examine these purposes Act under” light legislative purpose, of their visions 405(h). explained in As the Court simply it is not clear that meant Salfi: course, preclude any litiga forum for the would, fruitless to con them to challenges to the tion of appellees’ claim is one which tend that Constitution, Act A common sense construction the does not arise under itself. provisions light in of manifest arguments are of these since their constitutional congressional purpose lurking constitu just But complaint. critical to their it is infirmity suggests that the District argue that this action does tional as fruitless to appellant’s Security has to hear the Social not also arise under only Security claim. Act. For not is it Social case, claims); Sager, The infirmity. In that of constitutional Court, avoid constitutional however, Constitutional proposed interpretation 1980 Term—Foreword: the was mani- Authority Regulate Congress’ to general underly- on festly purpose Limitations at war with the Courts, statute, the Federal 95 ing the Jurisdiction the see id. 106 S.Ct. at while (1981) (same); Limiting Taylor, exaсtly opposite re- we reach the conclusion 17 Harv.L.Rev. The Unconstitutional- garding interpretation See in- Jurisdiction: § our 1395ff. Federal Court Legislative Proposals, pp. ity Current 65 Judica- 700-02. fra (1981) (same). ture 199 99, 109, Sanders,

15. See 97 Califano 760-61, 980, 986, (1977); S.Ct. at Oester U.S. at 51 L.Ed.2d 192 16. 422 eich, S.Ct. at 419 n. 6 393 U.S. at 243 n. at 2024. U.S. at 17. See 466 J., (Harlan, concurring); Joseph 38, 84, St. Stock Yards States, Co. United unnecessarily goes great 18. The dissent J., (1936) (Brandeis, concur L.Ed. 1033 language lengths quoted to demonstrate that the Benson, ring); Crowell v. requires difficult to this result. It is (1932); Salfi Martin v. L.Ed. why the dissent bothers with its understand Lessee, (1 Wheat.) Hunter's recitation, considering problem no that we have Redish, (1816); M. L.Ed. 97 see also Federal Ju disagreement acknowledging point. this Our Ju in the Allocation risdiction: Tensions 405(h), construction of § arises not from the Power 7-34 [hereinafter Redish] dicial 1395ff, conflicting readings of § our but from Congress’ (maintaining process limits that due no direction. offers on litigation deny judicial forum for the Salfi challenges ex- tional to the Act. These claims Congress enacted the administrative requirements dollar amount are not the “trivial” “minor matters” haustion 1395ff, protect as a unified scheme Congress sought to protect from which the having by courts from overload the They appropriately courts. are also not questions first the statutory decided all Secretary’s expertise, left to the as the permitting only those Secretary and Secretary authority has even to enter- decisions to non-trivial They tain them. must still be funnelled legislative courts. passed on the through process the administrative so that suggests the the Act history of Secretary may the address matters is meant to make a whole scheme as expertise, possibly his within obviate Secretary’s expertise and most the need for review of constitution- relitigating minor preserve the courts But, just as re- al claims. the exhaustion matters.19 quirement flexibly has been read when the congressional Recognizing this manifest constitutionality underlying statu- of the section’s in its examination purpose tory provision challenged, we should requirement, exhaustion administrative controversy require- read the amount carefully distin- Ringer way. ment in a similar only issue at guished case where appellee and the dissent voice constitutionality the under- is the stake exception if concern that we read disputed from cases where lying Act claims into amount peculiarly within Secre- question “is requirement, suggest, controversy as we The Court realized competence.”20 tary’s the federal courts exact- we will flood deferring Secretary’s expertise to the ly the tide of trivial claims that requiring comрlete exhaustion admin- words, ap- In other sought stem.22 no sense when procedures makes istrative many pellee and the fear authority rule on the dissent has no agency spurious Indeed, Secretary invent constitution- claimants will even disputed issue. challenges Secretary’s decision not recognized point adopting al waiving less regulation the statute’s adminis- in cases worth than grant benefits requirement $1,000. concern, course, when im- trative exhaustion is not This an award of benefits only precluding Here, factor by the before us. plicated case statutory provision that the claimant ais challenge to raised a serious claimant has challenges as unconstitutional.21 constitutionality of the Medicare Act Therefore, not decide we need its face.23 Similarly, purpose of the amount Congress meant to foreclose here whether parallel controversy provision, is to which $1,000 concerning below of claims review provision, would not of the that exhaustion applied.24 as to statute by application its constitu- be furthered Appellee 25. for Salfi, 2466 22. See Brief See 422 U.S. at 95 S.Ct. at 19. (noting requirements are meant that exhaustion however, parties judgment, give the benefit of on mer- and the courts no to 23. We make expertise”); Secretary’s "experience challenge 118 appellant’s to the Cong.Rec. its of the 33,992 (1972) (statement Senator Act. the Medicare Bennett) purpose judicial (noting of the that the overloading was restrictions to avoid might to be easier manu- claims indeed Such 24. matters); "quite minor” courts "trivial” or challenges with to the Act than wholesale facture (statement 15,836(1965) Cong.Rec. of Sena However, simply 111 is not the case itself. "only explana Kennedy) (noting us, Congress’ tor rule on we need not before judicial is "con review restrictions tion” for constitutionality a of such result. or the intent may pile up of cases that cern over number casting logic doubt on the of the cases But the courts”). constitutionality denying a for forum appear litigation claims would of constitutional at 2023 n. 11 466 n. challenging equal claims apply force to with to Diaz, (distinguishing Mathews Bell, Ralpho applied. See as the statute (1976)). L.Ed.2d (”[I]f by Congress pur- legislation at 620 F.2d (1985); prevent review of consti- porting to See 405.718-405.718e §§ 42 C.F.R. tutionality itself constitu- own actions 404.923-404.928 §§ C.F.R. despite merely challenges language to the of the viewable hold statute We Act itself constitutionality of the Medicare “the that made decisions of the Administra- consistent federal court reviewed may any be of law or fact tor expressed in intent as congressional with any by law administered the Veterans’ Ad- not afford holding will This 1395ff. ministration” unreviewable. for claims since frivolous opportunity much found the constitutional claim reviewable way find a to claimants must aggrieved because the “decision” at issue was that of to a con claims for benefits their connect enacting the statute rather infirmity Medicare Act stitutional it, applying of the Administrator in than Furthermore, courts would not itself. “question” under the and the was Constitu- rid of cases themselves powerless by than a tion rather “law administered Under Ha claims. raising unmeritorious Administration.”25 Without Veterans’ dis- 536-37, Lavine, gans v. constitutionality cussing the of the no-re- (1974), 39 L.Ed.2d 577 generally, clause view Robison Court subject dismiss for lack can court simply concluded that it could not and was raising immateri cases matter challenges meant to bar to the constitu- frivolous claims. al, wholly insubstantial or tionality of the The Court Act itself.26 also Further, Court noted Bell v. as the challenges that such “cannot be noted ex- Hood, pected to burden the courts their vol- that fails to a case 90 L.Ed. ume, they nor do involvetechnical consider- claims can be dismissed substantial raise poli- Administration ations Veterans’ upon to state a claim failure for 27 The cy.” instant case similar Robi- Thus, many granted. claims relief in that it a constitutional chal- son involves pleadings either handled on the can be lenge in a underlying statute scheme summary judgment. administering inAs federal benefits. Robi- important critically to recall that It is son, the construction of the Government’s authority rule on a Secretary has no Act serious constitutional would “raise challenge the Act that ‍‌‌​​‌​‌‌​​​​‌​‌‌​‌​​​​‌​​‌‌​‌‌‌‌‌‌​‌​‌‌​​​‌‌​​‌​‍en- too, accordingly, questions;”28 we have Therefore, our claimant not him. ables searching congression- inquiry made a into only forum in which has al intent. claim, but no forum at all. raise her great surprisingly, Not the dissent takes $1,000 controversy require- amount disparage It pains to refers to Robison. meant to sort ment for review was explicit uneasiness Court’s the final out claims so courts would be cases, ques Secretary’s the “serious constitutional in some while the about arbiter proposed be final in others. raised dissent’s stat decision would tions” deny altogether variously ],” not intended an arbiter as a “note utory construction [ claims, any particularly Yet, class of “remark,” and an “aside.” constitutional ones. It makes sense unequivocal of concern Court’s statement construction find matter dealing in a case benefits statute Congress, trying to make which was thought deny aggrieved claimant Secretary’s expertise, sure- the most of the challenge could forum for his constitutional not intend this result. ly did It seems hardly apposite. more to us as the dissent de hardly “revolutionary,” supported holding the Our in clares, presume the Court to that Robi Robison, in which held Court’s decision Moreover, in at constitutionality meant what it said. challenges to of son that the as somehow tempting ra- to dismiss Robison Administration Act were the Veterans’ tionally suspect, legislation at 1168. frees an admin- 26. Id. at scrutiny agency judicial from of istrative Constitution adherence to the dictates of the 27. Id. grave questions pose must as constitutional well.”). at at 1165. 28. See id. 25. 415 U.S. at 94 S.Ct. at 1165. anomalous, ignores prece clear be immune constitutional chal- the dissent lenge plaintiff. and the following circuit Robison in this dent of no mention the Su pointedly makes view, statutory provision In our of very reaffirmation preme Court’s recent precluding judicial all review of constitu lang exactly using same the Robison — tional issues removes from the courts an uage.30 judicial implied essential function under our in Ringer and Nor do the decisions Salfi separation constitutional mandate of sug holding, Secretary our the preclude powers, deprives an individual distinguished expressly Robis gests. Salfi independent forum the adjudication for of a on,31 a chal Ringer involved neither right. lit claim constitutional We have lenge underlying nor a situa the statute tle doubt that such a “limitation the judicial re possibility the tion in which jurisdiction of both state and federal courts for the claim entirely precluded view was constitutionality of federal to review purported to decision ant. And neither legislation ... would be unconstitu [an] Act. of the Medicare 1395ff construe § infringement process.32 due tional” our most instructive find Robison to be We Congress Because we have found that conclude, precedent and as did Court preclude judicial did intend review Robison, Congress did intend us, case we should have no before chal judicial of constitutional review bar it occasion to consider whether would be claims, Act; underlying such lenges Congress legisla- for enact constitutional amount, mi their are not dollar whatever preclude judiciary tion and from hear- easily Secretary can nor matters which the ing challenges constitutionality himself. resolve legislation. Unfortunately, the dis-

senting pursued this issue and opinion has respond Issues III. Constitutional feel constrained to because we significance great question. found, Even if as the dissent we had dissenting opinion, purports to which insists, Congress pre- intend to did questions” claim, the “serious constitutional appellant’s avoid judicial clude Robison, there, relies on an extraor- analysis would not end because alluded our applica- wholly dinary unprecedented raise the “serious such a conclusion would sovereign immunity to notion of tion of the questions” that the Court preclusion Act’s of all uphold the If were to credit avoided Robison. we note, first, that the dissent all We intention to foreclose review. with an Act, support no for the novel finds relevant review under Medicare “Indeed, a that it advances. proposition fo- appellant here no would have congressional on the survey of limitations (in state rum whatsoever either a sug- federal courts court) of the lower pursue her which up- will not Indeed, gests Secretary has claim. because statutory infringement of constitu- authority constitutional hold to consider rights guise jurisdic- of a under the tional questions, appellant have no would fo- ...;”33 equally clear her tional statute pursuit claims. rum at all not allow such a would in that thus faced with a situation We would guise sovereign immu- result under legislation and has enacted nity. legislation to simultaneously declared that at 2464-65. U.S. at See 422 supra.

29. See note 14 Academy Family Michigan 30. See Bowen v. (emphasis supra note Redish, Physicians, (expressing n. 12 original). ques- about the “serious constitutional concern tion” that construing might be raised Nowak, R. Rotunda &J. J. Constitutional 33. Young, deny Security judicial for forum Social Act to (3d 1986) [hereinafter Law ed. arising Nowak]. under Part B of constitutional claims program). Medicare Second, that, relying rights note on an we tutional are at stake the courts are astute, unprecedented properly notion of immuni- construing statutes, effectively ty, the decided the dissent avoid Congress the conclusion that intend- precise issue that it claims privilege ed to use the of immunity, or of say Congress may, have avoided. To withdrawing jurisdiction, in order to defeat fit, way insist on as a as it sees them.”34 Because we believe that this judicial foreclose all review on the con- firmly view is so rooted our constitution- stitutionality congressional enactment, of a separation al tradition of powers, we infringement is to decide that there is no ignore contrary cannot views advanced disagree process. absolutely due We dissenting opinion. this contention. A. Right The Due Process to Have the Moreover, note that the dissent’s he- we Scope Rights Constitutional Deter- directly sitancy to address the constitution- By Independent mined Judicial stem

al issue well from a misunder- Body standing of what that issue is. The dissent Congress’ power characterizes the limits of considering issue, In the constitutional “complex” over federal as a important that, to recall in the entire “profound” question, citing authorities States, history of the variety viewpoints. yet with a And the Court Congress has never once held that complexities of the issue arise from the may judicial foreclose all review of the if, potential problems example, created constitutionality congressional of a enact- deny any wished fo- Quite federal contrary, ment. on the few occa- claim, leaving rum for only a federal considered, sions when this issue has been problem on state forum. It is that the courts have declined to find an intention on efforts, dissent’s authorities focus their part Congress preclude all asking places any Article III whether limits review of constitutional claims. Less than Congress’ plenary power over federal year ago, adopted one jurisdiction. The askwe is wheth- just analysis such an to conclude that Con- process places er any due limits on Con- gress did intend to bar gress’ power, conclude, narrowly and we of the method B which Medicare Part and rather uncontroversially, that it does computed.35 recog- awards are The Court and that these limits are broached when dangers nized the constitutional it averted federal, denies state forum— holding, noting disposi- its that “[o]ur agency of a resolution —for ques- tion avoids ‘serious constitutional constitutional claim. tion’ that would arise if we construed “Dialogue,” deny his renowned 1395Üto forum for consti- dissent supporting argument, cites as arising tutional claims under Part B of the Henry the late program.”36 Professor M. Hart con- Medicare The Court went on bearing sidered the unequivo- to endorse Professor Gunther’s govern- agree and asserted that “no democratic cal conclusion that “all that Con- ment can immune jus- gress enforcing to the claims of cannot bar all remedies for legal right____And tice and rights.”37 where consti- federal constitutional Shapiro States, 414, 433-44, 34. P. P. D. &H. v. United 321 U.S. 64 S.Ct. Bator, Mishkin, Wechsler, 660, 671-77, (1944); Joseph 88 L.Ed. 834 St. Wechsler’s Courts Hart the Federal and the States, 38, 84, System (2d 1973) Stock Co. Yards v. United ed. [hereinafter Federal 720, 740, (Bran- 80 L.Ed. 1033 Hart a Wechsler]. déis, J., concurring))). Michigan Academy Family Physi 35. Bowen v. Gunther, Congressional (quoting — Id. Power to cians, U.S. -, 90 L.Ed.2d Opinion Curtail Federal Court Jurisdiction: An Debate, Ongoing ated Guide to the 895, Stan.L.Rev. (citing Weinberger (1984)). Id. 106 S.Ct. at 2141 n. 12 921 n. 113 Other scholars have Salfi, (citing agreed U.S. at 95 S.Ct. at 2465 also See Redish, with Professor Gunther. Robison, (“Courts supra long recog Johnson v. nоte at 25 have (1974); right scope process 39 L.Ed.2d 389 Yakus nized a due have scheme, However, presidential pardon. a there ceived our constitutional Under appeal Supreme questions con- while the admittedly difficult was some Congress pending, passed a power providing, to limit law Congress’ Article III cerning that, However, part, proof pardon, on a most court jurisdiction.38 court federal summarily dismiss a process due should claim under agree that “under the scholars Congress jurisdiction. the statute for want of The fifth amendment of the clause held the statute unconstitu- power Article III over the may not exercise opinion in order tional. Chief Justice Chase’s courts jurisdiction [federal] that, attempt right observes its limit party of created the Klein deprive a a Court, Hart, the must on the Professor “[w]e Constitution.”39 Congress inadvertently has hand, disagreeing think that not while other limit Congress passed separates legis- suggested that proposition, judicial power.”41 lative from the jurisdic- federal court might free to limit long alternative forum was so as some tion noted, “It As one commentator has available: Congress clear to the Klein Court that hard, least, to read into for me at It’s manipulate jurisdiction not could secure guarantee to a civil liti- III Article particu- ends.”42 unconstitutional Klein hearing in a constitu- gant larly inquiry to our because it relevant (outside original jurisdic- tional court arguably involved the of whether Court), Congress if tion of government had waived pro- some alternative provide chooses Nonetheless the Court held that Con- suit. procedure The alternative cedure. gress unconstitutionally jur- could limit so, But, if it seems unconstitutional. isdiction. some other to me it must be because limita- example Another constitutional as the due provision, such congressional power juris- over tions process clause. Battaglia courts is diction Gener- hand, Congress if directs On the other Cir.1948). (2d Motors, 169 F.2d 254 al case, I III court to decide an Article mid-1940s, Supreme Court ruled III limita- easily read into Article can incidental activities workers that certain to tell power tion on the Fair compensable under Labor were how to decide it.40 court Act of 1938. there- Standards courts, too, recognized princi- Act passed after the Portal-to-Portal have (1982), 251-262 amend- guarantee of an ple that the constitutional U.S.C. §§ disputed make the work independent judiciary legislature ing limits the the statute to withdrawing juris- noncompensable regulate of its exercise hear cases under of the courts to example, in diction jurisdiction. For court Battaglia (13 Wall.) old statute. court Klein, 20 the States did that the amendment plaintiff held sued L.Ed. 519 taking of an unconstitutional allowing constitute a statute Court of Claims under the claimants had property dur- because recovery land lost abandoned pay the old rights to could vested overtime ing if the claimant the Civil War However, noteworthy what given statute. prove he had not aid considering that, “[b]y Battaglia is his in the Court about Klein won case rebellion. rejecting plaintiffs’] constitutional showing he had re- [the of Claims on a 40. Hart (em- supra indepen- note at 337 rights & determined Wechsler, omitted)); (footnote original). judicial body." phasis No- dent supra at 40-41. note wak, 41. (13 Wall.) at 147. 38. See note 37 supra. See also L.Tribe, American (1978); 33-47 C. Constitutional Wright, Law Law Sager, supra at 71. note (4th 1983). 32-39 ed. Courts of Federal See, e.g., supra 33, at 41 Nowak, (foot- note note omitted). explicitly claim, appeals undisputed Congress court of rec- leeway that has some [the] congressional power over the ognized jurisdiction that to affect the of the lower feder jurisdiction courts,48 of the courts is limited Congress may deny al to a process clause.”43 court thus con- person attacking due indepen a statute “the constitutionality of the sidered both judgment dent of a court on the ultimate provision and the merits of jurisdictional question constitutionality.” Joseph St. plaintiffs’ underlying claim. As the court States, Stock Yards Co. v. United 298 U.S. noted, depriva- “regardless of whether (Brandeis, J., [the at 740 concur independent jurisdiction] had an end tion of ring). itself, if its effects would to one of Although there is no definitive an

deprive appellant property without question swer to the there whether just compensation, process due or would restraints when be invalid.”44 jurisdiction seeks to limit the of all federal foregoing cases and authorities courts, question we need not address that that, suggest provi the extent that the “to arguably here. This hard is not III are inconsistent sions of Article with posed in a case such as this one where process clause of the fifth amend the due effectively ju has foreclosed all ment, provisions of Article III must those dicial review of Bartlett’s constitutional by the amendm be considered modified claim under the Medicare Act. We think it proposition admittedly ent.”45 This obvious that a statute that would have the suggests controversial insofar as it precluding any effect of sort of review in there must be some forum independent judicial ignores federal an forum for the enforcement of federal constitution warnings in fails the Robisоn and test However, rights.46 al restrictions “[s]ince Battaglia. We also believe that such a ordinarily on federal courts leave state congressional flatly enactment would be forums, courts as available curtailments of separation inconsistent with the doctrine jurisdiction typically require do not powers implicit in our constitutional confrontation of the difficult and unsettled scheme. problem of access to some fo words, Madison, legal rum.” In other courts and Marbury Since (1 routinely Cranch) 137, scholars assume that there is a 2 L.Ed. 60 the Su process right scope preme interpreted due have Court has the Constitu rights give judiciary important, determined some tion independent judicial body limited, the Su albeit role in the structure of the —and preme First, government. Court has never held or hinted oth federal courts fulfill although contrary, only by adjudicating erwise. On the it is their role cases or 43. supra sistent with the essential functions of the Su- Nowak, note at 43. preme Court under this Constitution.” 44. 169 F.2d at 257 (footnote omitted). Ratner, Congressional Appellate Power Over the Court, Jurisdiction 109 U.Pa.L. 45. supra congres- note As to Redish, (footnote omitted). Rev. 171-72 jurisdiction sional limits on the Court, argued Professor Ratner has that: 46. See Gunther, generally Congressional Power conclude, therefore, It is reasonable to Opinionated to Curtail Federal Jurisdiction: An gave Congress the authority Convention [Constitutional] Debate, Ongoing Guide to the 26 StanX.Rev. 895 specify orderly procedures ... (1984). See also discussion and citation of au- modify and to from time to thorities in W. Y. Kamisar a J. Lockhart, Chofer, response prevailing polit- time in social and (5th 1980). ed. 57-61 Constitutional Law requirements, imposed ical within the limits by the Court’s essential constitutional role. It (11th G. Law 51 n. 6 Constitutional Gunther, is not reasonable that the Conven- to conclude 1985) original). (emphasis ed. gave Congress destroy tion Reasonably interpreted role. the clause 48. See Sheldon v. Sill, (8 How.) exceptions means "With such and under such make, regulations Congress may not incon- L.Ed. 1147 Second, emphasized It should be that this case when before them.49 controversies by Congress controversy, involves a statute enacted proper case faced with infringes right appellant claims her federal, apply courts, must state both religion. Congress free exercise of their rendering deci- applicable laws all given appellant right Third, benefits duty up- courts have a sions.50 depending upon seemingly varies whether Fourth, a con- law the Constitution.51 hold facility. not Science or she uses a Christian en- may not be trary the Cоnstitution potentially infringement This a serious is Last, by a judgment final court a forced.52 appellant’s religion. her free exercise of So, enforced.53 binding and must be Congress impose Whether can such a statu- controversy a case or reaches once tory judi- is a restriction essence, courts, courts, become us, absolutely ciary. It makes no sense to constitutionality of as to the arbiters final any meaningful system separation actions.54 government legislative powers, to allow branch implicit in doc- The delicate balance pass judicial then such a law and avoid powers would separation of be trine category a broad of constitution- review of destroyed Congress if were allowed challenges by injured by the al individuals judge the legislate, but also to only recog- suspect that the dissent law. We actions. We constitutionality of its own view; may folly nizes of such a this and, Congress may doubt that have no dissenting explain why opinion seeks to should, indeed, constitutionali- consider the analysis a the constitu- rest not on direct legislation passes. it More- ty absolutely on tionality of the statute but may the courts over, recognize that we sovereign immunity. unprecedented use of judgment of occasionally defer to the Con- constitutionality gress respect with Sovereign Immunity B. Further, legislation. the courts of certain discretion, may, in their elect arguably In con order to avoid obvious ap- “political” questions that certain might posed avoid stitutional difficulties in the better left for resolution pear finding Congress has foreclosed However, legislative review, branch. executive the dissent seeks solace all suggest quite immunity. concept it is another matter in a novel fit, Congress may, attempt act to bar all as sees for us to pointless It would be considering the constitutionali- dissent’s thesis—all parse courts from the limits of the that, Congress at- legislative If insofar ty of act. be understood that need far, “passed the to claim that go purports it has thesis tempts to the dissent’s Congress all legislative foreclose separates limit which legislative en constitutionality judicial power.”55 The Court of actment, law enactment, support it finds no case upheld such an has never Court. do so here. we will 683, Nixon, S.Ct. v. 418 U.S. 94 requirement 51. United States that the court This embraces 49. 3090, (1974). 1039 See also Martin jurisdiction, Capron 41 L.Ed.2d subject see v. matter have Wheat.) 304, Lessee, (1 Cranch) 126, Noorden, (2 14 330- v. Hunter's U.S. 2 L.Ed. 229 Van 6 U.S. 33, (1816). 4 (1804), controversy L.Ed. 97 justiciable case or and that a See, Wright, e.g., presented. v. 468 U.S. is 737, Allen 137, 3315, Madison, (1 Cranch) 2 Marbury 556 5 U.S. S.Ct. 82 L.Ed.2d 52. v. 104 45, Beals, (1803). S.Ct. (standing); U.S. 90 60 Hall v. 396 L.Ed. 200, (1969) (mootness); Toilet 214 24 L.Ed.2d 158, 1401, Gardner, Aaron, 1, S.Ct. v. 87 Goods Ass’n 387 U.S. 3 Cooper v. U.S. 78 S.Ct. 358 1520, (1967) (ripeness); (1958). v. Baker L.Ed.2d 697 5 L.Ed.2d 186, 691, Carr, 7 L.Ed.2d 663 U.S. 82 S.Ct. (1962) (political questions). 683, Nixon, v. 418 U.S. 54. United States Aaron, (1974); Cooper v. 41 L.Ed.2d (1958). Katt, 3 L.Ed.2d 5 50. Testa Madison, (1 (1947); Marbury L.Ed. 967 Klein, Cranch) 2 L.Ed. 60 80 U.S. at 147. States v. dissenting opinion, curi- gra- somewhat War Risk Insurance and the war rely ously, Lynch on v. United main, seeks to enjoyed, tuities were States, 78 L.Ed. persons; same classes of and were ad- theory preclu- to extract governmental ministered the same sovereign immunity. But a on sion based agency. both, respect reading Lynch plain makes it careful expressed had theretofore its benevolent only rely Brandéis ‍‌‌​​‌​‌‌​​​​‌​‌‌​‌​​​​‌​​‌‌​‌‌‌‌‌‌​‌​‌‌​​​‌‌​​‌​‍not did not that Justice purpose perhaps generously more than but, finding of on a would have been warranted in 1933 contrary, engaged interpreta- artful the financial condition of the Nation. legislative intent to avoid a conclu- tion of When it became advisable to reduce the had invoked sion that existing expenditures, Nation’s the two its actions from review. shield classes of benovolences were associated repealing grant- He that “in ‘all laws found legislators; in the minds of the and it ing pertaining yearly or renewable term they was natural that should have Congress right insurance’ aimed at the subject wished to both to the same treat- remedy,” at the 292 U.S. at not] [and it ment. But is not to assumed that challenging at a suit 54 S.Ct. and so Congress would have the de- resorted to constitutionality the of the enactment was withdrawing legal vice of remedy the by sovereign immunity. Justice barred outstanding yearly beneficiaries appeared to have been concerned Brandéis policies renewable term if it had realized precisely problem the we face here is, rights. that these had contractual the in and that Court confronted Robison: least, probable Congress at as that over- suggestion although, is a that in There looked the fundamental difference in le- repealing “granting pertain- all laws gal incidents between the two classes of insurance,” ing yearly renewable term it benevolences dealt with 17 as that § Congress away intended to take the con- payment wished to evade of the Nation’s right, tractual it also intended to take legal obligations. away remedy; pow- that since the it had away remedy, take er to the the statute Thus, Id. at 54 S.Ct. at 846-47. given extent, should be effect to that in Lynch, when the smoke clears the sover- purported if even void insofar as it eign immunity claim fails because to hold away right. take the contractual possibility otherwise would to create the suggestion is at war with settled rules of Congress unсonstitutionally that could act construction. It is true that a statute attempt and then to shield its action from part necessarily is not in its bad void immunity. sovereign virtue of provision entirety. legisla- A the within Robison, Similarly, in the Court used the power may tive be allowed to stand if it “ principle ‘cardinal this Court will separable provi- is from the bad. But no first ascertain whether a construction itself, unobjectionable sion however fairly possible by the the statute is that, appears can stand unless it both questions] may be avoid- [constitutional] alone, standing provision giv- can be ” ed.’ U.S. at S.Ct. at legal legislature en effect and that the quoting Thirty-Seven v. United States unobjectionable provision intended the 363, 369, Photographs, 402 U.S. provisions stand in other held case bad 1400, 1404, (1971). 28 L.Ed.2d 822 Certain- Kansas, Dorchy should fall. explicit congressional in- ly, absent rather 323, 324, 68 L.Ed. [44 sovereign immunity case tent to use Here, those essentials are both 686]. review, ought a shield to bar we as separate provision in absent. There is no Congress attempted not conclude that has dealing remedy; it with the rely sovereign immunity. on As in appear does not wished is, least, probable Lynch, deny remedy repeal if “[i]t possibility Congress overlooked right contractual was held void under [the raising claims under $1000 Fifth Amendment. case,57 i.e., same it wished to evade case on which as that [review].”

issues] rely support unprece- U.S. at dissent seeks to application sovereign immunity. dented rely in vain to on also tries dissent rejects obviously The dissent’s view County Valley National Maricopa “properly analysis astute” of Professor Phoenix, Bank of Hart, virtually but alone in its maver- Maricopa Coun- L.Ed. regarding sovereign ick assertions immuni- to with- ty involved ty. federally power to tax state’s draw the response the claim banks. chartered Nor the other cases cited Amendment, the the Fifth that this violated persuasive. The dissent dissent cites a merely answered “no.” It decided string of authorities unrelated to each oth- merits issue the constitutional er or to instant case in an effort to to the any references sovereign that the bar demonstrate im- plainly dicta. issue are munity is automatically defeated Thus, Maricopa nor Lynch neither assertion a constitutional claim. The support a County read to view can be majority opinion dissent claims judicial review Congress may preclude all requires doctrine immuni- relating constitutionality of of claims disappear litigation against ty to all point is The relevant federal statute. where a constitutional chal- Government that, engaged in crea- Lynch, lenge up But the made. dissent set interpretation rely- to avoid tive here, man that our straw as is not conten- In sovereign immunity. Maricopa ing on Ours is the much narrower claim tion. rely on again did not County, the Court immunity may sovereign in- that immunity the sovereign decided when preclude effect is any voked when its fact, Supreme merits. In the case on the challenge to the judicial review of a consti- im- rarely sovereign adverted Court has tutionality congressional legislation. decades, past and the munity in the few later focuses on this narrow- The dissent authority tend to be dissent’s sources argues the er claim and Instead, cited. infrequently both old and upheld has such invocation pains to construe Con- the Court has taken only case the dissent could doctrine. The endorsed gress’ to avoid the result intent support find to its assertion is Morrison v. fact, has, by the in dissent. The Court 481, 149, Work, 69 45 L.Ed. 266 U.S. S.Ct. sug- precisely Professor done what Hart (1925).58 only case is the over 394 Not consti- gested should do: courts “[W]here years dispositive of Indian sixty old and are rights are stake the courts tutional spe- has claims over which land statutes, astute, construing in properly holding authority, but its has plenary cial Congress intend- avoid the conclusion that develop- question by later called into been immunity, or of privilege ed to the use sovereign immuni- in the doctrine ments in defeat withdrawing jurisdiction, order to federal officials Morrison’s claim that Indeed, propo- ty. support in them.”56 rights by Indian land sition, violating his Lynch cites the were Professor Hart pursue its Court—in which to forum—the Tax supra 56. Hart & 34, note at 336. Wechsler, Similarly, the dissent re claim. constitutional Id. — U.S. -, Mottaz, v. 106 on United States lies (1986), in 841 which the 90 L.Ed.2d great 58. All the other cases described at in which to plaintiff forum abo had length dissenting opinion deal either with claim, but failed do pursue his constitutional sovereign immunity or executive branch state period. statutory limitations so within the immunity, we turn In- which treat in below. misleadingly easy misreadings deed, make it These many cited the dissent cases the Court did to conclude that purportedly denied for the dissent show availability judi any claims itself with at all for constitutional not concern forum cases, forum, example, flagrantly For unlike the mischaracterized. in these cial because Appliances Safety case, Co. hearing clearly dissent cites Mine available in instant Forrestal, L.Ed. some time. some court at case, (1945), plaintiff had a in but states, against federal stat- suits with the unconstitutional acting under from in sovereign states’ suit forum. immuni- held barred utes was cases, many In Eleventh Amendment suit, although against ty because to hear the claims state courts are available was, effect, officials, a suit government raised; availability only the of a federal involving the dis- States against the United Moreover, forum is at issue. the dissent holding land. The position of United States conveniently ignores the doctrine of Ex described was later Young, Parte “conflicting precedents” part of a line of mitigated po- L.Ed. decision Larson by the Court’s resolved tential harshness of the Eleventh Amend- Corp., Foreign Domestic & by permitting ment state officials to be bar (1949).59 L.Ed. 1628 injunctive relief on federal claims sued for Larson, approved, albeit the Court Thus, Young Ex Parte court. fashion, competing prece- line of limited prevents the Eleventh Amendment from Lee, States v. from dent denying any forum for (1882), recogniz- (16 Otto) 27 L.Ed. Prospective always claims. relief is avail- exception to the doc- ing a “constitutional Indeed, in federal court. the doctrine able immunity.”60 ex- This trine of Young of Ex Parte has been invoked to there is a ception defeats the bar when rights public protect plaintiffs’ to receive acted in that federal officials have claim plain It is Eleventh benefits.64 In such Constitution. contravention analogous support Amendment offers little against cases, run the claim is held to for the dissent’s contentions. rather than the United officials cites several cases Finally, the dissent The Court Malone explained States.61 damages against Unit- holding suits for the Larson and Lee decisions were for the unconstitutional actions ed States be some there guided by the concern that by sovereign officials of executive barred plaintiffs’ remedy for the vindication support These cases offer no immunity. distinguished claims.62 for the contention that it Malone Lar- situation before legislative immunizes the branch likewise Lee, noting plaintiffs in son While we concede judicial from review. (the of Malone always had a forum sovereign may not be sued for Claims) press their in which to claims.63 consent, that immuni- damages its without Thus, dissent’s invocation of the curso- that courts ty does not also entail sovereign immunity in ry discussion of legislative enactments without Con- review Morrison, implica- reference to the without review has been gress’ consent. Judicial years developments, sixty of of later tions Madison, and no Marburg v. with us since precedential is of value. The dis- dubious suggested that it is one has ever before sent has found no other cases in which an Congress’ part. The dis- discretionary on purportedly act of immun- sovereign’s immuni- sent has conflated the judicial on the of ized from review basis purport- damages with its ty from suit for sovereign immunity. its enactments from ability ed to immunize support attempts The to only people dissent who have judicial The review. state by analogy provi- position standing challenge its the Medicare so, doing ignores it case are those with immunity doctrine. at issue sions posture This cannot Amendment claims for benefits. the fact the Eleventh availability judicial review of jurisdiction hear eliminate only deals with 63. Id. at 647 Bowdoin, n. 8. n. 82 S.Ct. at 983 59. See Malone 8 L.Ed.2d 168 64. Richardson, See, e.g., Graham 60. Larson, S.Ct. at 1464. 337 U.S. at (state wel- 29 L.Ed.2d 534 denying prohibited benefits from fare officials 61. Id. at 69 S.Ct. at qualified were residents who to otherwise aliens). 82 S.Ct. at 983. See 369 U.S. at right judicial of violating claimants’ review the claim before us. also without raising serious decision the District thus process of law and Court is here- to due powers. separation reversed and remanded. about concerns exactly point made in Robi- This So Ordered. attempt to last son, thus the dissent’s The dissent position its also fails. support BORK, Judge, dissenting: Circuit process might if that even due maintains sued, Appellant Mary Bartlett on behalf claim a forum for require sister, of her Joseph- of the estate deceased acting coercively, the Government is when Neuman, ine to recover in Medicare $286 forum when the Govern- requires it such Secretary Depart- that the of the benefits bene- merely denied a claimant ment ment Health and Human Services had Robison, But fits. reimbursement. The denied as Medicare expressed about “serious its concern requires Secretary deny Act her itself a bene- questions,” was previously reimbursement because reim- hash out of fact that makes fits case—a nursing costs of care in a bursed Christian belabored distinction. the dissent’s much facility. Science Bartlett maintained below theory sovereign immunity The dissent’s statutory provision that this is unconstitu- the doctrine of concludes that effect tional, first violative amendment’s every trumps other as- religion guarantee of the free exercise According to the pect of the Constitution. protection equal component and the pow- dissent, neither the delicate balance guarantee pro- due fifth amendment’s among the three er the framers struck contentions are not before us. cess. These nor the constitu- government branches limits the guarantee process of due tional The district court dismissed Bartlett’s immunity. Such assertion of subject juris- Government’s complaint for lack of matter position cannot main- simply extreme Act denies diction because the Medicare reasoning If follow the tained. we Secretary’s decision conclusion, Congress logical dissent to where the amount claimed is case enact, for exam- would have the jurisdictional than It is this less $1000. authorizing ple, law benefits a welfare Appellant issue we must decide. con- only claimants available white read not to the statute should be tends that that enactment and, read, immunize if is so deny including scrutiny by provision preclud- judicial review unconstitution- the bar of ing We review of benefits claims. of those majority agrees al. both understanding difficulty such My have how agree con- I with neither. positions. thought beyond could ever be be Supreme prece- law upon Court clusion rests sovereign im- judicial scrutiny said, because of dents, which, not it must be are free in munity. preclude judicial To review as to the constitu- ambiguity, at least of just as unconsti- such a situation would be important issue Since the is tional issue. governmental underlying tutional as the litigation social insurance benefits about Any theory would allow such action. that hoped that the Court programs, it is judicial clarify statute stand untouched this area of soon revisit and will ignores concept of flagrantly branch law. guarantee of separation powers and the any process. due We see no evidence that I. Court, court, including Supreme would theory in such a to the dissent’s subscribe us as not interpret the statute before To case. of all judicial review to cut off intended to deform the statu- is $1000 claims IV. Conclusion precedent tory text and bury the law of above, prematurely find as well as we For the reasons noted sovereign immunity. Congress preclude that did intend 405(h) anything A. section as other than an immunity ex- assertion of such with stated specific terms discussing the Before ceptions. 405(h) incorporated Section is useful statutory provisions will be into the Medicare Act section 1395Ü of legal pro context. The place in their them 1395ff(b) provides Title 42.3 But section allow claimants access visions any that individual dissatisfied with a de- some claims but not for to the courts for termination as to the amount of Medicare easily that the allow shown others. is (including a determination that the benefits is a of sover judicial review waiver ance of zero) judicial amount is shall be entitled to eign immunity and that disallowance Secretary’s review of the final decision as sovereign assertion of is an such review provided 405(g), is in section which is the stated in immunity. The 1395ff(b)(2) — provision. waiver then Section York, U.S. -, City New Bowen v. qualifies by stating that waiver 2022, 2029, 90 L.Ed.2d 462 review if the amount shall be available аs as well a case which controversy All is less than $1000. advanced, challenges were subsidiary section is 1395ff thus section 405(g), permits 42 U.S.C. § 405(h)’s retention of Secretary’s decisions on So of the “except provided.” re- as herein Judicial benefits, Security disability is a waiver cial provided view is and limited in sections provi sovereign so that 1395ff(b)(l) ruling and Given the limitations is a condition sion’s statute of York, therefore, City Bowen v. New it is and, such, must strict on that waiver as 1395ff(b)(l) clear sections and ly construed. sovereign immunity as waive to claims of Security and Medicare bene- Social up expressly and assert sover- $1000 programs only parallels close fits are not eign immunity as to claims under $1000.4 Thus, statutorily integrated. are but That asserted sover- means in Bow- seen, will be the Court’s statement claim, eign immunity as to Bartlett’s City en v. New York shows are we only question us is before whether Con- sovereign faced with an assertion of immu- gress may constitutionally do so. There 405(g) nity in this case. Section of Title Congress may. seems no doubt said, is, as the Court a waiver of 405(h) sovereign im- recognized Once it is immunity.1 Section states that there any munity present, body a solid of doctrine shall be no review of decision play. Secretary “except provid- as herein comes into Whenever suit, consent, 405(g) gives If of sov- its consent to be- ed.” section a waiver ing relinquishment sovereign immuni- ereign immunity, impossible it is to read “a 405(g) (1982) part: provisions 416(j) provides of sections 406 and 1. 42 U.S.C. title, (a), (d), (e), (f), subsections individual, and of Any after final decision of (h), (i), (k), (l) Q), ..., 405 of this of section Secretary irrespective of the amount title, apply respect also to this sub- controversy, may shall obtain a review of such they applica- chapter extent as to the same decision a civil action ... shall be [that] chap- brought States____ respect subchapter the United ble with II of this in the district court of ter. 405(h) (1982) provides: 2. 42 U.S.C. § If, reason, 405(h) read § for some one did not findings Secretary and decision of the sovereign immunity, that as an assertion hearing binding upon shall be all indi- after a Supreme Court in Bowen would mean that the parties hearing. viduals who were to such No 405(g) City a v. Yorkread as waiver § Newof findings Secretary of the of fact or decision sovereign immunity exists as to benefit that tribunal, by any person, be or shall reviewed 405(h). independently This would of § claims governmental provid- agency except as herein text, in the for the not alter the conclusion States, the ed. No action Secretary, the United immunity sovereign under as to benefit claims any employee thereof or officer or certainly apply Security to the Social Act would brought shall be under section 1331 or 1346 Act. The under the Medicare benefit claims arising any of title recover on claim 28 to and, moreover, types the of identical claims are subchapter. under this judicial provisions statutes are review of the two integrated. (1982) provides: U.S.C. 1395Ü language 1395ff(b)(2), United strictly interpreted.” of section is be ty, must Sherwood, how difficult to know review Bartlett’s States clearly more More- claim could barred. 85 L.Ed. 1058 over, of Claims’ ina- of the Court speaking nothing has Bartlett found I think —and declaratory judgment, bility grant a to majority nothing leg- has found the—in has held to be “settled history of islative section 1395ff that even “jurisdiction grant to re- that propositions” at, unequivocally provides, hints much less wholly upon the extent to depends lief any exception for consent to constitu- has waived its United States which challenges to explicit tional the statute’s suit that such a to jurisdictional requirement of a minimum. implied but must be un- cannot be waiver undoubtedly pointing Bartlett correct expressed.” United States equivocally legislative history suggests out 1501, 1503, 4,1, King, 89 S.Ct. ap- Congress restricted Medicare benefit added). Here, (1969) (emphasis L.Ed.2d peals overloading to avoid the courts with asser- contrast, unequivocal is an there Michigan matters.” See Bowen v. “trivial sovereign immunity. — tion Family Academy Physicians, -, L.Ed.2d 623 principles These Record). (quoting Congressional case— every aspect present suffuse (The legislative history the Medicare statutory issue of construction from the judicial provisions, Act’s which ad- lead to of constitutional —and provisions collectively, dresses all the Act’s the district court was conclusion that Michigan Academy, summarized entertain Bartlett’s jurisdiction to without 2138-39, 2141 n. suit. Inc., Erika, States v. 208-10 11-13, & nn. 1654-55 & nn. B. (1982).) Recognition 72 L.Ed.2d dispute that re- is no There congressional purpose does not aid of this Act, provisions of the Medicare taken view statutory lan- Bartlett. Neither face, explicitly deny any all their on guage legislative history nor did Bartlett’s jurisdiction to entertain courts single chal- Congress out constitutional prohibitions of claim. The statute’s While, special lenges treatment. one inflexible, flat, even and without review are sense, claim not be a even $286 exception for constitutional any trace of on when based a first “trivial matter” denial of a claim. Sover- challenges challenge, Congress defined amendment shown, eign immunity, pp. 724- will than in in dollar terms rather “trivial” infra, routinely bars suit constitu- legal importance.5 terms of though Congress does grounds tional even chal- Bartlett stresses that grounds. need not mention such thresh- lenges that fall short explicit $1000 to bar consti- make an intention therefore fall likely to be few and sovereign im- old challenges tutional because judi- Congress’ purpose to avoid upis outside of munity reverses burden. no indication But there is to show cial “overload.” suing government plaintiff out Congress intended courts carve unmistakably consented categories claims under $1000 Given for review upon suit the Constitution. based Moreover, forgets majority that if attempts by-pass this one. majority also 5. The $286, by relying controversy requirement than $86 claim were for rather amount in upon Bartlett’s require- provision Act’s exhaustion bar the Medicare would both the same Maj. op. ment. $86 701. But exhaustion doc- her review of administrative and claim, completely 1395ff(b)(2) (1982) (no trine is irrelevant to this hear- 42 U.S.C. statutory interpretation. issue is not $100), ing for claims available basis in re- this court can find whether majority’s directly even more shows analogous the de- motely rationalize doctrine requirement is en- exhaustion reference to the review; power its of issue cision to exercise interpretation tirely proper to a irrelevant writing simply this statute Con- is gress explicitly whether in this statute. in cases like withheld themselves, in a distinction not, result a between benefit claims $1000 that would Instead, Congress involving challenge a constitutional and all many cases. great claims, differ- all however claims. together other benefit placed nature, involved less than $1000. in ent Schor found exception an in This court acceptance of Moreover, it is obvious Congress had no the statute because guarantees argument Bartlett’s “explicit” “clearly expressed” or intention challenges will in- number “give constitutionally ques- CFTC seeking claimants Many Medicare crease. jurisdiction.” 106 S.Ct. at 3251. tionable plead constitutional could less than $1000 technique today’s majority That is the uses. challenges the statute order obtain Schor held that But the jurisdiction. Those consti- subject matter emphati- the statute meant what it said and might too “insub- often be tutional claims cally rejected what it called the lower see Ha- jurisdiction, support stantial” to Schor quote I court’s “manufacture.” Lavine, 528, 536-38, gans v. length dispos- me some because it seems to 39 L.Ed.2d 577 statutory construc- itive of the substantially courts would to determine but tion here. con- examine the claims —thus forced to Appeals was correct in its tributing a overload understanding that statutes “[federal See limit. sought to with $1000 avoid so construed as to avoid serious are to be 602, 627, 104 Ringer, Heckler constitutiоnality.” of their Where doubt (1982) (Al- L.Ed.2d 622 arise, a court such “serious doubts” worlds, of all immedi- though in “the best should determine whether a construction perhaps plaintiffs judicial access” for ate “fairly possible” of the statute is desirable, 405(g) and Congress in sections question can be which the constitutional be- 405(h) a different balance” “struck true, however, equally avoided. hardship and the cases tween individual does not that this canon of construction overly or system-wide “potential for casual ignore give prerogative court the a intervention.”). premature legislative to avoid constitu- will order recently Supreme Court has ana “ ‘[although adjudication; this tional attempt lyzed construction legisla- construe court will often strain to issue designed to avoid constitutional against constitutional tion so as to save it the result here. Com way that dictates attack, carry it must not and will Trading Futures Comm’n v. modity perverting purpose point to the — U.S. -, Schor, 3252- rewriting it.” judicially or a statute ...’ Schor involved 92 L.Ed.2d 675 jurisdictional statute of the a claim that the reading permit- While the court’s ... Commodity Trading Commission Futures III potential Article ted it to avoid a (“CFTC”) granted the unconstitutionally doing only by violence problem, it did so adjudicate law power to common CFTC [statute], cannot for its distinction reparation proceedings. counterclaims language fairly be drawn from chal In order to avoid this constitutional [statute], reconciled history nor District lenge, Appeals Court of for the congressional purposes motivat- “read into the of Columbia Circuit [stat jurisdic- ing the creation of [CFTC’s unqualified facially reference ute’s] tion]. [, speaks jurisdiction counterclaim counterclaims,’] distinction between ‘all re- The canon of construction ... arising counterclaims [Commodi unnecessary con- quires courts to avoid other regulations and all Act or CFTC ties] empower did not adjudication stitutional Id. 106 S.Ct. at counterclaims.” Appeals to manufacture the Court prob Similarly, avoid the constitutional on the CFTC’s restriction here non-reviewability, majority lem of contemplated Con- that was nowhere “fa Act’s seeks to read into the Medicare con- reject plain evidence gress and below cially unqualified” on claims bar decision____” any intent because that intent review such gressional The Su- preme specifically statutory embodied in a Court noted that a not construction of barring the mandate. statute federal courts de- ciding constitutionality the of the benefit (citations omitted). Id. legislation questions would “raise seriоus decided therefore reached and The Court concerning constitutionality the majority The constitutional issue. 211(a),” so Court should deter- § Schor, here, appeals in like the court mine whether a construction that would manufacture an a clear statute to rewritten “fairly avoid issue was by the is contradicted face exception that possible.” 415 U.S. at 94 S.Ct. at and is nowhere of the Medicare statute legislative history. contemplated again what Schor holds This circuit does thought The Robison Court section may not. 211(a) explicitly did not consideration bar Congress' arguments All of these constitutional claims because what sec- —about statute, enacting the and rationale for tion made were nonreviewable decisions of plain a cut back statu- any whether court the Administrator under law adminis- language because the rationale Con- tory by the Veterans’ tered Administration. gress expressed Thus, as broad as the applied not the section decisions made are, event, statutory any largely statute, ap- the administration of a but text — only plain pellant challenging Not is the text and irrelevant. Robison was anot deci- history by legislative but supported a sion of sort but rather decision made Bartlett’s, is, like by Congress. questions as to claims not The there law Constitution, only unequivocal presented waiver of under the arose not of such a but no faintest hint under the statute. This construction was practice, waiver. confirmed administrative since agency did not consider constitutional C. by legislative challenges, history, since judi- shown no intent to bar had statutory analysis set out above is upon cial review of constitutional attacks comparison confirmed two had concerned the statute but been Court decisions. avoiding burdening uniform- the courts and Robison, 415 Johnson ity decisions. The said that these involved 39 L.Ed.2d involving problems did not arise cases challenge by a consci- validity of the the constitutional statute. performed objector, who had re- entious Thus, nor neither text service, quired provision alternative to a legislative history provided necessary Readjustment Benefits Act the Veterans’ congres- convincing” evidence of “clear for ineligible made him educational prevent access to sional intent of Vet- benefits. When Administrator in a like Robison. case deny applied the statute erans’ Affairs on claim is claim, effect Bartlett’s brought suit in a federal Robison’s his Robison court, entirely clear. The statute invoking various bases district 1395ff(b), case, present bars including U.S.C. jurisdiction, jur- § Secretary’s final “judicial de- review of under 28 U.S.C. isdiction § benefits, as to amount of includ- government judicial re- cision” contended that no ing decision that the amount should be could be had because 38 U.S.C. view zero, claimed is less than 211(a) where the amount provided: decisions “[T]he This does contain law statute any question $1000. or Administrator “under” the stat- language about decisions any law fact under administered important in ute found Robi- providing bene- Administration Veterans’ indicating congressional desire to final conclusive and no son shall be fits ... decisions, not only administrative of the United insulate other official or court decisions, from review. congressional have States shall 405(g) provides Secretary’s any “final deci- district court review of the Here all insulated, Secretary and, Secretary and the decision of so final sion^]” precludes held, reim- the statute that a denial of benefits on the has decided basis hand, On the other ‍‌‌​​‌​‌‌​​​​‌​‌‌​‌​​​​‌​​‌‌​‌‌‌‌‌‌​‌​‌‌​​​‌‌​​‌​‍Bartlett. alleged bursement a statute which be unconsti- Robison, it can be said that here, inas tutional nonetheless a decision of the really challenged is not the Secre- decision Secretary purposes. Salfi, for review question Congress’ and tary’s but U.S. at 95 S.Ct. at 2466. Constitution; the Sec- law arises authority pass on the no retary had ways modifies Robison in that thus legislative question; and constitutional Salfi jurisdiction asserted Bart- undercut specifically an intent not show history does claim, Bartlett’s lett. teaches that constitutional chal- of a prohibit review Salfi Constitution, though If stood it arises under Robison lenge to the statute. finding so a under the Medicare Act that alone, might, perhaps, allow also arises it 405(h) present case. section limits of section and jurisdiction 1395ff(b) challenged, apply. The decision not stand alone. does But Robison Secretary, according Salfi, of the is that by Weinberger significantly modified applying though Secretary is a even 749, 95 Salfi, by Congress. cuts provision enacted case, Salfi In that a widow L.Ed.2d through statutory construc- escape off the duration-of-relationship pro- challenged the and, therefore, employed by tion Robison Security Act under of the Social visions only proceed that Bartlett must means Secretary Department of of the provided by section jurisdictional basis Education, Health, and Welfare had denied 1395ff(b). also distin- It is true that argu- rejected the her The Court benefits. Salfi ground guished on the additional Robison Robison, accepted saying that ment based, expressly the latter case “was that though claim arose under the the widow’s 211(a) if рart, on the fact that at least Constitution, § the claim also arose under challenges to statu- Act, 405(h) constitutional Security reached and section Social limitations, absolutely judicial no Moreover, then tory sec- applied. therefore unlike Robison, would be avail- 211(a), of the issue tion involved section consideration restriction 405(h) only such a is not limited to decisions of Not would able. extraordinary, ‘clear Secretary any seek- such that but extends to “action” been have Security required ing any convincing’ recover on would be “to Social evidence and claim,” sought intent judicial whether review is ascribe such we would before discretionary decisions of the raised a Congress, because it would have ... but Secretary Secretary’s nondiscretion- question or the of the validi- constitutional serious application statutory provisions al- ary as so construed.” ty of the statute leged to be unconstitutional. Section at 2465.6 U.S. at Setting intent, immu- aside the doctrine of convincing" congressional evidence of significance passage might nity, have constitutionality and also of dubious that, present is true for the case is not clear. It "absolutely that no limitation that would mean judicial review are if the limits on apply construed judicial of the issue would be consideration statute, challenges to the to constitutional passages may These mean that the available.” judicial review. On the Bartlett can obtain concerned that a constitutional issue Court was hand, true the constitutionali- other ty it is not escape judicial review rather than not forever statutory provision can particular claimant should obtain review. chal- so, consideration. The never receive lenge new to the If this seems to be distinction think, law, one, be made Bartlett wishes to make can inclined to that reads I am position but with claimant in the same into words not chosen with this issue too much Moreover, more. Robinson said say $1000 claim could in mind. constitutionality questions would be serious entirely remove a constitutional claim from 211(a) so that it "bars legislation raised if were construed consideration in benefits deciding the constitutionali- larger question federal courts upon be to rule the much would legislation.” ty case, In that veterans' benefits Congress’ power to all over as bring pp. in- if Robison could not the issue text at See issues. noted, courts, nobody Similarly, as could. Salfi fra. requiring "clear extraordinary, identifies as upshot tive); 184, 190, is that bars Kyne, Leedom Salfi unless it can be claim7 оf Bartlett’s L.Ed.2d distinguishing Robison Salfi, by said (Court lightly “cannot infer that remark about based, part, upon the as judicial protection rights does not intend difficulties, read, thereby against agency action taken in confers changing the ratified, law Robison delegated powers”). pre excess of immunity in constitutional sovereign of sumption explained inapplicable is so legislation. That challenges to benefits case, are not to exercise where we asked doctrine of sov- that the entire would mean illegal of executive action as review whenev- immunity is cast into doubt ereign delegate Congress, legis but to review government is against action er an lative action of itself. Unlike the ground. This on a constitutional based Executive, below, Congress, as discussed subject is in- up pp. taken jurisdic power regulate has both a event, seen, any that It will be fra. tion of federal courts and a to with strongly that recognizes a distinction Salfi any against hold consent to suit in court continuing vitality of sover- suggests the States, powers which militate the United pp. 722- immunity in this field. See eign favoring judicial against presumption re 23, infra. expressly Court has view. The D. recognized composing the elements that integrated jurisdictional general structure relevant the majority finds governing Bartlett’s claim are a judi- limitations Congress intends that “presumption suit, i.e., action,” a limited limited consent to waiver Mi- administrative cial review of immunity. sovereign City Bowen v. at 2135. But of 106 S.Ct. Academy, chigan — U.S. -, York, litiga- place in this New has no presumption that (1986) (constitutional presumption of 90 L.Ed.2d place, the In the first tion. statutory challenge Security to Social ordi- and rooted in “the appears to be review (“We difficulty agree have no procedures) in- that ]y presum[ption] nar[ 60-day statement” that the ing with obey its the executive to [the] tends 405(g) in 42 U.S.C. expects of limitations and, accordingly, that it statute § commands sovereign a condition on the waiver an execu- “is grant relief when the courts to strictly con immunity and thus must be agency such a command.” Mi- tive violates added)). any sov See, (emphasis With strued” at 2141. Academy, 106 S.Ct. chigan suit, presump proper ereign consent to Mar- (quoting Chief Justice e.g., id. at 2136 “consent, legislative since it is a history Ad- tion legislative of the shall and the sovereign immunity, relinquishment congression- Procedure Act on ministrative interpreted,” United strictly must be the Execu- courts to control al use apparently arguments advanced were require In Heckler tutional mention. 7. Two other cases respect to Part A as those made with the same Ringer, 466 U.S. v. Thus, claims, oрinion which the dealt. (1984), with Medicare claimants L.Ed.2d any Ringer denied review of serious was not statutory challenges mounted constitutional claim, and the decision is of no Secretary policy Health and to the here. assistance deny Human Services to reimbursement surgical procedure. Court de- particular Michigan Academy Family Phy v. In Bowen — U.S. -, sicians, the claimants had nied review because S.Ct. 90 L.Ed.2d Secretary. One presented brought claiming physicians their claims il suit alleged litigant, Ringer, discriminatory he could not do so legal treat and unconstitutional surgery regulations govern unless Secretary not afford the because he could in his ment guaranteed. payments The Court’s B ing services; for Medicare reimbursement were allowable Part 405(h) Ringer ruling could never ob- did § thus meant that the Court found Bartlett, however, challenge. The of his suit. Unlike Salfi tain consideration bar their however, said, Academy physicians Michigan did not con "whatever constitu- benefits, they clearly did nor respondents too a denial of a claim assert test tional claims jurisdic- payment to benefits. Their subject-matter of a claim support seek the claim, insubstantial therefore, Medi did not "arise under” the n. 104 S.Ct. at 2018 U.S. at 609 n. tion." 466 405(h) jurisdic did not restrict respect claims care Act Though this was said with Act, consti- tion. B of the for benefits under Part 584, 590, Sherwood, reading did not sumption” affect of a States (1941) (empha- surely L.Ed. 1058 immunity, presump- waiver implied must added), “cannot be but sis does not tion of affect expressed,” unequivocally sovereign immunity. assertion of Yet the 1, 4, 89 King, States majority concludes that mow-constitu- (1969), (emphasis add- 23 L.Ed.2d 52 favoring presumption tional review of therefore, juris- ed). Since, the Medicare agency Congress’ action defeats reserva- lim- at issue here are a provisions dictional tion Bartlett’s immunity, inter- ited waiver presumption if claim. Even were rele- begin must statutes pretation of those (which congressional prob- vant to action presumption an initial not), ably presumption if that and even claim. over Bartlett's (which were a constitutional doctrine it cer- could there Even if otherwise not), majority’s tainly is conclusion point, the doubt on this unsupportable would remain contra- guidance on the relation provided specific general principles diction of the of the law immunity presump- sovereign and between sovereign immunity Supreme of and the In favoring judicial review. tions like direction Nakshian. clear Court’s Nakshian, 101 Lehman v. (1981), plaintiff Finally, even if could 69 L.Ed.2d 548 all these difficulties S.Ct. overcome, it be unconstitutional favoring claimed thаt would presumption be the re- jury trial suit deprive him of a his is if view administrative action defeated Age States under the against the United contrary the Congress’ specific intent to is Employment Act. The Discrimination Block statutory language. evident question as whether the the Court viewed Institute, Community v. Nutrition 467 the government had conditioned statute’s 2450, 2455, 81 immunity on from suit the ab- waiver of shown, L.Ed.2d 270 As been trial. Plaintiff countered jury sence of a Congress’ intent all review to bar against strong presumption the “that the Part A claims for less than Medicare sovereign immunity has no rele- waiver of hardly clearly more stated. could be $1000 question of a vance to the [constitutional] right by jury.” 453 U.S. at 162 n. trial respond- n. 9. The Court at 2702 S.Ct. II. ed: sovereign the clear that doctrine [I]t A. presumptions attendant presents only be This case difficulties decision in this must inform the Court’s appears to have cause the case. The reason that Seventh the. leg things about benefits said inconsistent presumption jury in favor Amendment islation that withholds apply trials does not actions at law On one claims such as Bartlett’s. the against is that Un- the United States the v. New City the Court in Bowen hand, suit, ited the States is immune from York, in which constitutional claim trial, right jury Amendment to a Seventh made, statutory provisions in characterized therefore, respect never existed with to a provisions in distinguishable the suit the United States. Since generally applicable jury sovereign there trial immu is no volved here as a waiver of right the that attaches when United nity. means necessarily That that the Un suit, accepted prin- States consents if ited could not have been sued States require ciples such there had been waiver. cases — right clearly provided in jury trial Mottaz, U.S. -, as United States v. legislation creating the cause of ac- (1986), 2229, L.Ed.2d S.Ct. tion. moreover, the Court continues to adhere Id. rule, claim even where a constitutional asserted, United States If found that “[w]hen sued, the terms of its waiver “pre- consents seventh amendment’s constitutional circumstances, implication these immunity define the extent of Under yet change If take these of a momentous tacit jurisdiction.” we the law court’s must, if seriously, upon. as we seems much too tenuous to be acted statements contrary in nothing there were To substantiate the assertion that a bar law, be obvious that the then would case challenge to a constitutional to benefits jurisdiction to enter- had no district court legislation questions would “raise serious hand, On the other suit.8 tain Bartlett’s concerning constitutionality” of that may have cast into rule been this clear bar, opinion аppended a the Robison foot- remark Robison doubt the Court’s intended, consisting note of case citations of a statute that “bars construction that a apparently, suggest the nature of the deciding the constitu- courts from footnote, That constitutional issue. in its legislation of veterans’ benefits tionality entirety, simply: said would, course, ques- raise serious ... parte McCardle, Compare Ex 7 Wall. 506 constitutionality” concerning tions (1869); Sill, L.Ed. Sheldon [19 264] the statute. How. L.Ed. [12 1147] Though government drew the Lessee, 1 v. Hunter’s Wheat. 304 Martin sovereign immunity to the doctrine (1816); Joseph L.Ed. St. Stock [4 97] attention, nothing said Robison Court’s States, Yards Co. subject and did not mention cases 80 L.Ed. [56 1033] point. cited on J., (1936) (Brandeis, concurring). See courts in a situation leaves lower This Hart, Power of Limit statement about quandry. Robison’s of Federal An the Jurisdiction Courts: constitutionality of must be tak- questions Dialectic, in Exercise 66 Harv.L.Rev. intended, it is not seriously yet and en as Bator, [reprinted in P. P. doing accept easy the result of so. Mishkin, Wechsler, Shapiro D. & H. Hart taken as a Should Robison’s statement be The & Federal Courts Wechsler’s of overturning of the doctrine sover- silent 1973) (2d 330-60 ed. System the Federal eign immunity for all constitutional chal- Hart & Wechsler ]]. [hereafter so, lenges legislation? If much to benefits at 366 n. 94 S.Ct. at n. 8. logically Ben- more seem to follow. would Robison, stressed, merely isit to be stat- category efits claims constitute the of question ed there a serious of that sovereign immunity is cases in which most constitutionality. purport an- It did not upheld. infra, readily pp. See 720-24. question. light In of swer the other Robison, therefore, read to elimi- Should be decisions, Supreme may I think Court sovereign immunity nate all constitu- said, respect, also that Robison tional claims both federal and state in question in a context which it raised the legislation and executive action? These belong. The not citations Robi- does conclusions, though startling, would seem do son footnote have to with much-de- however, courts, logically. to follow Lower question scope Congress’ of bated of usually overruling do infer silent when jurisdiction of power inferior to remove gives explicit Supreme Court indica- no Supreme Court to federal courts and of tion it has an issue and that addressed any issues in and all hear constitutional overruling I think such is intended. it saf- far and more contexts. That is a broader judges er for lower court to continue any presented here. profound issue than doctrine, respect particularly established so, doing is to be taken as Unless Robison solidly is as when that doctrine old suggested, Supreme had never addition, sovereign immunity. rooted as aware, might a sо as I am there far cited Court for its cases Robison difficulty in a statute that constitutionality aside about do address sovereign immunity with subject immunity. merely invoked at all the of strue, our Secretary argued sovereign and since that doctrine determines 8. The has not immu- ques- court, jurisdiction, must raise the Congress this court itself nity to this but since assert- ed in we tion. the statute con- Secretary Agriculture challenging the order of the of constitu- under respect to suits Stockyards govern- ques- of Act. A a denial the Packers and tionality of weight as to tion was raised ment benefits. courts findings. give Secretary’s should Jus- in Robison’s footnote cases cited concurring opinion tice Brandéis’ stated altogether. different nature Shel- of a asserting right person that a is entitled to on a and a a suit bond involved don Sill independent judgment “the of a court on congressional upheld mortgage. The Court question constitutionality.” of ultimate jurisdic- diversity jurisdiction, removal L.Ed. III of the Consti- authorized tion article (1936). Hart is an Dialectic eru- tution, there would have in cases where sophisticated exploration dite and of the prior diversity citizenship an no been complexities of these issues. The Court assignment such documents. power juris- remove the stated that cases, These which seem to look differ- federal courts arises of the lower diction directions, Congress’ ent raise the issue of from the necessary implication fact particular power, its courts, although, of created Congress those III, article section clause 2 of the Consti- course, duty no it was under exceptions Supreme tution to make right prescribe, “[Hjaving do so: jurisdiction, Court’s to remove constitution- any from withhold court descriptions al cases all issues jurisdiction enu- creation of the courts. control Bart- III controversies article merated [listed provide appropriate lett’s suit does not an created of the Courts Constitution]. upon investigation occasion to enter jurisdiction can have but such as statute hotly surpassingly impor- debated and (8 How.) 441, confers.” 49 U.S. the statute question. nothing tant It is less than the parte 12 L.Ed. 1147 Ex ultimate control constitu- Congress’ repeal held that McCardle tional issues as between and the giving appellate statute and, not, We need Court. there- involving cases writs fore, not, issue, much should address corpus effectively ability ended the habeas it, pretend less to resolve because case to such a then of the Court decide case long presents problem a that has been rec- meaning pending it. The of before McCar- ognized being of a different order. may may is still there or dle debated: in The cases cited the Robison footnote suggestion opinion a be McCardle is, they That were enforcement actions. that the did not itself Court concede attempts parties by private involved either power Congress unlimited to remove its obligations legal against to enforce other appellate jurisdiction categories over entire (Sheldon private and parties v. Sill Martin (7 of constitutional issues. See Lessee) by govern attempts or v. Hunter’s Wall.) 506, 515, (1869). In 19 L.Ed. 264 parties private ment law to enforce Lessee, juris- Hunter’s the Court asserted (Ex parte Joseph McCardle St. Stock highest to review judgments diction of States). Yards v. Whatever Co. United state courts issue of where an federal law Congress’ may ultimately be about decided (there treaty States) a of the United was power jurisdiction over constitu to remove involved. The reasoned that Con- Court in such enforcement tional issues coercive gress duty a constitutional actions, presents claim that Bartlett a has specified vest the entire kind, always treated as been different III article somewhere the federal court barred, may one which be even as consti system, no which would mean that class of issues, by of tutional doctrine entirely may cases from feder- removed contrast, By the doctrine of (1 Wheat.) 304, immunity. jurisdiction. al See application (1816). has suggestion 4 L.Ed. This government enforcement ac whatever to a accepted has been later cases. St. thought to Joseph tion has never been have three-judge Stock affirmed a Yards sustaining any. district court’s judgment a rate dure easiest in the batch of seeking a from the is cases benefit involv-

Bartlett is ing government government or denial of or resisting a bounties bene- government, not ____” Davis, Administrative Law line fits K. There a private enforcement action. 28.18, (1st 1958). Treatise permits ed. decisions Supreme § of goes say that this of the former Davis rationale is in cases jurisdiction of denial unhelpful perhaps may as to those two-thirds the rule type, whatever but, Drawing upon denying judging review case cases variety. the latter Dialectic, cited, evidently cases he meant that law, cited in the Hart’s Professor categories more footnote, could be denied in congres- review concluded Robison involving than those benefit least of cases sional withdrawal He questionable very then made a distinction in “the cases claims. troublesome complaining govеrnmen- like Professor Hart’s: about plaintiffs the direct do not involve decisions which may readily tal Just as one subscribe Hart & persons.” private coercion idea that review be denied group cases he 346. The Wechsler government gratuities award of or boun- ties, indicated perhaps easily a court can more withholding deny of a adminis- respect plain- problems includes (a) trying to trative assistance those who are tiffs who are neither avoid defendants, (b) government programs complaining beneficiaries of becoming or deny than it can review of administrative decision concern- governmental a about obligations duty upon those of an- enforcement ing judicially enforceable (c) subjected disadvantage person, complaining who are private other programs. governmental government extrajudicial coer- about example, For cion of themselves. 28.19, at also Id. 103. See id. at 104. seeking government plaintiff review of categori- Professors Hart’s and Davis’s he contracting decision which officer’s accurately reflect the line drawn zation agreed in should be the contract had years. many for It has Moorman, final. United States always true that the United States been 288, 94 L.Ed. U.S. 457 256] [70 not be sued without its consent. This could seeking plaintiff some Or nothing with the has do government. benefit from jurisdic- congressional power to remove the Hart (emphasis add- & Wechsler at 346-47 courts enforcement tion of federal when ed). into category is the one This last Sovereign brought powers are bear. claim to Medi- Bartlett falls. Her accepted by always been neither care Part A benefits addresses See, example, Court. Califor- governmental coercion present nor future Arizona, 59, 63, 65, nia governmental against her nor interference 919, 923, (1979), 922, 144 involv- 59 L.Ed.2d private person duty of a legal with the against quiet ing suit to title California’s significant running in It that her favor. is (“It clear, is and the United States Arizona category that coupled Hart the Professor course, Congress could refuse to that claims with the cate- encompasses benefit sovereign immunity in the Nation’s waive Moorman, for the Su- gory represented by only in some cases but in all all cases plaintiff held that the preme Court there Either action would bind court courts. did have access to the courts. not original jurisdic- of its even in the exercise tion,” jurisdiction given the Constitu- a similar has come to Professor Davis subject congressional the “Upholding unreviewability tion and conclusion: law, Exceptions power.).9 Regulations and proce- questions jurisdiction, and III, provision implicit article power regulate in the judicial power congressional fed- consent 9. Both 2, of the United jurisdiction that doctrine of sover- section eral court and the Constitution, which the to "Controversies to eign immunity States extends rooted in the Party.” v. States shall be Monaco expressly United though the found there. latter is 321, 747, 313, 745, Mississippi, 54 U.S. S.Ct. Supreme 292 has held that the The States, (1934); except upon Williams United its 78 L.Ed. 1282 from suit of the United States 722 upon by the in- the citizen Constitu- Supreme Court decision leading The ferred tion, States, Schillinger v. 155 United for a immunity from suit

volving 163, 166, 85, 86, 168 S.Ct. 39 States, 292 U.S. [15 Lynch v. United benefit (1894)] (1934). L.Ed. 108 ... 840, L.Ed.2d 1434 571, 78 54 S.Ct. involved, the cases there United States the two ... When the creates In each of itself, beneficiary an in- rights under it is individuals plaintiff was during obligation provide remedy War I World under no policy issued surance courts, through Insurance Act. States v. Risk to the War pursuant 328, 464, outstanding Babcock, abrogated 250 U.S. 331 S.Ct. [39 A later statute 465, may 63 L.Ed. 1011 It limit Plaintiffs claimed ]. contracts. insurance to administrative remedies. deprived the individual them latter statute that States, 270 v. United Tutun process of law due property without 425, 426, S.Ct. 70 L.Ed. 738 576 Justice [46 fifth amendment. violation (1926)]. Court, Brandéis, writing for a unanimous property were contracts agreed 581-82, (empha- at 844 292 U.S. at S.Ct. process clause of the added). the due protected Though held the Court sis lacked abrogate the con- fifth amendment had intended obligations of the abrogate remedy power to tracts but not to withdraw Nevertheless, suit, power analysis rule of its Justice Brandéis’ United States. “[t]he sued in the face of a constitutional not be to do so even the United States upon by embracing.” repeatedly has been relied is all Id. claim consent without its since.10 As the Court said courts at 844. Valley Maricopa County National giv- Although consent to sue was thus 357, 362, Phoenix, 318 U.S. Bank issued, Congress re- policy en when 587, 589, L.Ed. 834 “the power to withdraw consent tained privilege suing time____ to withdraw sovereign’s immuni- States or its instrumentalities the United charac- exists whatever the ty suit from Lynch no limitations. v. United knows proceeding or the source of the ter of the States, sought applies right to be enforced. cited.” and cases arising action alike to causes of acts of arguably not Court has Congress ... and to those aris- satisfactory altogether ratio- supplied an rights some violation con- ing from noted, 553, 572-73, power Congress accepted to elimi- 77 L.Ed. appeal to decide nate the Court’s Doug- corpus. Justice a denial of habeas “There is a serious whether las said: employ Lynch up- majority 10. The seeks to majority casе could command a the McCardle Maj. op. rewriting of the Medicare Act. hold today." n. S.Ct. at 370 U.S. at 605 view majority very quotation at 708. The his remarks n. 11. The contrast between fallacy argument. offers demonstrates the in its suggests Maricopa County and in Glidden Justice Brandéis based his conclusion that Con- withdrawing Douglas did not think that Justice gress had consented to suit on the fact that government benefit sued for a consent to be provision separate statute ‍‌‌​​‌​‌‌​​​​‌​‌‌​‌​​​​‌​​‌‌​‌‌‌‌‌‌​‌​‌‌​​​‌‌​​‌​‍at issue contained “no problems removal but that raised constitutional dealing remedy" apart from the ... petition jurisdiction to entertain a of the Court’s underlying legal right, Lynch, U.S. at corpus distinction Professor for habeas did—the reach the S.Ct. at which enabled him to law. found in the case Hart congressional Act issue of intent. The Medicare court, contrast, suggests my are noth- majority sections before this ing reliance on “separate provision[s] ... deal- but a set of this case “has to decide ing remedy.” Lynch thus effectively precise with the undermines is- constitutional decided issue, majority’s position. sue,” i.e., to that I claim the McCardle making Maj. op. deciding. at 704. avoid majority suggestion, fails to Maricopa County this mistaken was Justice 11. The author of who, comprehend between claim Douglas, dissenting the difference v. Zda- in Glidden Co. 1459, prisoner’s nok, 530, writ of habe- benefits and a 671 Medicare S.Ct. 8 L.Ed.2d 370 U.S. 82 Harlan, Douglas under- corpus difference Justice objected as to the fact that Justice —a well, the law perfectly and a difference opinion, majority cited Ex stood the author of the McCardle, recognized. always parte approval. as McCardle

723 785, is, 422 ability at of the United States to U.S. 95 S.Ct. at for the of nale course, that, its suit utterly govern- consent clear withhold when origins The doctrine has benefit. ment takes affirmative action an history, has been English legal perhaps, it individual, the kind of individualized deter- said, misunderstanding history. of that in a required. mination denied Salfi would be part upon may possibly rest Today, it The distinction the Court drew be- Salfi of administrative- practical necessities government tween affirmative action and that, made clear for state. welfare Salfi programs benefits under social insurance necessity, consti- of administrative reasons parallels, to, indeed seems identical the dis- differently, may apply rules or not tutional tinction the cases and commentators have all, programs. The wid- apply at to benefit government made between enforcement ac- that the duration-of-re- ow there contended tions and suits fоr benefits.12 Security lationship requirement for Social Much same distinction determined to ensure that “bene- benefits intended Nestor, in Flemming the result v. 363 U.S. only on the fits be awarded basis should 603, 1367, 4 80 S.Ct. L.Ed.2d 1435 relationships.” 422 U.S. genuine marital Nestor, Security a claimant for Social old- 784, argued 2476. She that the 95 S.Ct. at benefits, age deported just had been after fifth process of the amendment due clause becoming eligible for those benefits for required determination of an individualized been, having previously as an alien relationship genuineness country, a member the Communist Par- presumption prohibited conclusive ty. The held that the statute’s clas- marriages than months’ duration of less six deportees ineligible as sification such for spouse been the death of a had before sufficiently pass benefits was rational purpose obtaining into entered for the process scrutiny. important due More for Court, however, upheld the benefits. The purposes, present Nestor’s “most insistent- legislative presumption: pressed” ly objections to preclude does The Constitution not upon termination of his benefits rested arti- price con- policy such choices as a for I, 9, III, 2, 3, 3, cle cl. article cl. and the § ducting programs for the distribution 363 sixth amendment. U.S. at 80 Geduldig social insurance benefits. Cf. is, complained, He S.Ct. at 1373-74. Aiello, [484], v. 417 U.S. 496 S.Ct. [94 punished him the statute without a 2491, 2485, (1974)]. 41 256 Un- L.Ed.2d trial, punishment legis- imposed prosecutions, custody or like criminal a bill attain- lative act and so constituted proceedings Stanley at issue in v. Illi- der, punished past not un- conduct 645, 1208, nois, 92 S.Ct. 31 U.S. [405 an engaged when in and so was lawful ex (1972)], programs L.Ed.2d 551 such do post law. These were substantive not involve affirmative Government ac- facto claims, Bartlett’s, like seriously important tion which curtails challenges rationality process due cognizable liberties under the Constitu- Nevertheless, classifications. tion. benefit; gratuitous governmental Chaney, also v. ue to receive a See Heckler 1656, 1649, right quite 84 L.Ed.2d 714 for it assert a it is another use judi (agency's subject refusal to enforce not government coercive seize part agency's "coercive cial review in power because prop- an and convert to its own use individual’s liberty property” over individual’s review.’’) erty any possibility without implicated) (emphasis original); Ortwein (dictum) (footnote omitted). 1172, Schwab, v. text, course, analysis in the is not (1973) (|25 filing appeal L.Ed.2d 572 fee for gross suggest meant classifications in state welfare al determination constitution benefit legislation benefits are never found unconstitu- applied pay since to claimant unable to See, Westcott, e.g., tional. Califano 61 L.Ed.2d hearing provided and initial administrative (1979); Califa- pay claimant’s interest increased welfare Goldfarb, no v. interest”); Magno De ments not "fundamental Wiesenfeld, (1977); Weinberger L.Ed.2d States, (D.C.Cir. v. United 636 F.2d U.S. L.Ed.2d 514 420 1980) ("It thing agency is one for an to have the say final over whether an individual will contin-

724 — Mottaz, reach the v. substance United States refused

Court -, gov- 2224, sought Nestor a (1986), because S.Ct. L.Ed.2d 841 claims those benefit, the denial of which an American Indian claimed that a ernmental sale of “punish- by characterized as alloted be Indian lands the United could not States 616-21, 80 illegal, S.Ct. at 1375-78. at was taking Id. an unconstitutional ment.” process. a violation of due Id. S.Ct. at challenges constitutional The fact 2227. The held that under juris Court one and Nestor because were deflected Salfi statute, dictional the General Allotment claiming government made they were Act, (1982), 25 U.S.C. the United defending benefits, than enforce- rather sovereign States had not waived its immu actions, fairly strong impli- a creates ment nity plaintiff’s, such as claims review of a constitution- judicial cation that 2232, S.Ct. at perti while under the other claim denied ally-based benefit statute, jurisdictional Quiet nent Title close, analogies The Congress. Act, 1346(f), 2409a U.S.C. §§ sufficient, rely I but need not en- perhaps (“QTA”), Congress’ waiver of immunity the cases to be tirely upon them because on a statute of conditioned limitations demonstrate the same next discussed claims, plaintiff’s barred 106 S.Ct. at supports as distinction Thus, although “[fjederal 2230. right law like Bartlett’s. claims benefit ly provides range of special Indians with protections,” sovereign immunity B. barred plaintiff's claims. at Id. majority’s argument ap- pivot Indeed, Dakota, 2234. in Block v. North that, pears proposition though the to be the 273, 103 1811, S.Ct. 75 L.Ed.2d 840 has enunciated the distinc- Supreme Court (1983), bringing quiet-title when a state claims benefit and enforce- tion between against action the United States claimed Lynch in cases such ment actions as QTA’s limitations, statute of al Maricopa County, Court has never though sovereign a reservation of immuni challenge a constitutional to a barred stat- ty, applied to was unconstitutional as lands grounds sovereign immunity. ute on vested the Constitution states so at least This is said where the bar themselves, 103 S.Ct. at id. at forum, leave no federal or would the Court stated that “[a] state, to hear and available decide the con- just claim can become time-barred proposition, stitutional issue. This in either can,” 292, 103 other claim id. at at S.Ct. version, its easily or narrow shown broad QTA 1822. The held further that to be false. provided jurisdictional sole basis to es occasions, claiming On numerous suit agáinst tablish land title to governmental funds of a state or the Unit- States. Id. at States, ed immunities whose from suit stem Thus, despite challenge, its constitutional purpose from different sources but for this North Dakota was left without “present issues,” legal the same Larson “hope of merely forum and with induc Foreign Corp., Domestic & Commerce ing quiet the United to file its own States 93 L.Ed. suit,” title 103 S.Ct. at id. (1949) (Frankfurter, J., dissenting), Nakshian, the Supreme have been dismissed Lehman sovereign rejected because the failed 69 L.Ed.2d 548 to waive though plaintiff’s jury immunity incorpo- the suit claim to a trial a suit even government challenge rated a constitutional and even the federal under the Age Employment though the result was that no fo- Discrimination Act. right jury rum Plaintiff's rested on the majority was available. Since the at- claim tempts explain away the set support- cases trial out in the seventh amendment. ing proposition arguments long-settled propo- Court relied on either immaterial, congressional necessary mistaken or it is to sition the absence suspends representative discuss some consent decisions.

725 Co., Murray Distilling Wilson jury tri- right to 213 individual’s 160, 151, 458, (1909), at 2701. 29 at S.Ct. U.S. S.Ct. 53 L.Ed. al. course, was, fo- other dispensary There concerned commission estab- the could plaintiff in which available by rum lished South Carolina statute for the provided by the sev- jury the trial obtain and purchase liquors. resale of distilled amendment. enth of the Creditors commission sued in federal court, claiming subsequent legis- that state Appliances Co. v. Forres- Safety Mine winding up the business of com- lation the tal, 90 L.Ed. S.Ct. the mission was violation of federal Con- by a that (1945), a claim contractor involved contracts, Act, process, equal stitution’s due and Renegotiation permitting a statute the clauses, id. Navy pay- protection at at Secretary of the to withhold the war who made “exces- ment to contractors insofar as it limited the creditors’ Plain- profits,” was unconstitutional. sive claims the commission. The Su- brought suit court in district tiff contractor preme by Court held that suit was barred withholding of enjoin government’s the the eleventh amendment stated: it, alleging that the ef- payments owed winding up The in the of a absence act challenged statutory scheme fects the conferring authority provision to review it “impossible” pursue for the made it ordinary justice in the courts of the ac- provided by the in the Tax remedy Act claims, concerning tion of the commission at 66 S.Ct. at Court. supporting instead the contention that is held that since “this property the State abandoned all had allegedly collect indirect effort to a debt right placed in funds the hands of proceeding in by government owed commission, contrary tends to a con- consented,” government has not clusion, suggests since it at once though not lie jurisdiction did “even purpose evident State to confine Renegotiation Act under which the Secre- its the determination amount might tary proposed to act be held uncon- claimants, liability to to the officers Id. at at 221. stitutional.” agents by pur- the State that chosen for holding by The Court’s was not affected elementary pose. And it even if a that “impossi- plaintiff’s argument it was has consented to be sued in its own State bring challenge elsewhere. ble” creditors, by right courts one of its Work, 481, 45 In Morrison v. not in such creditor to sue would exist L.Ed. 394 an American S.Ct. in a of the States. the State court challenged government’s Indian therefore, situation, was management of lands ceded to the United subsequent changed as a result tribe, by claiming part his Indian States 24,1908, giving February the cred- act congressional legislation subsequent State, might itors of the whose claims governing had the lands’ administration commission, adversely upon by the acted “deprivfed property viola- Indians] right a review 484, 45 Id. tion of the Constitution.” at State. Brandéis, at for a unani- 151. Justice Id. at (emphasis S.Ct. at 465 Court, mous stated the constitutional added) (citations omitted). discussion, This barred, “as claims were language, especially emphasized Id. consented that it be sued.” Su- clearly shows that the United States The Court silent was wholly untroubled preme Court was any open forum whether other was bar prospect clearly the im- plaintiff, but United States’ claim from review a constitutional munity would suit a state court. bar This forum conclusion whatsoever. opinion should be noted rule in eleventh Brandéis, who, the settled majority pro- buttressed Justice of a believe, cases that consideration amendment really fesses did not mean sovereign immunity in its strong waiver of unequivocal rule of state’s its waiver in Lynch. courts and of he laid down own among independent Finally, the nineteenth-cen many of each wholly must be courts Hosp. tury State v. that addressed E.g., Atascadero cases constitutional other. 234, 3142, 105 S.Ct. Scanlon, 473 challenges pay to failure to state bondhold (1985). That state 3147, L.Ed.2d 171 87 ers are ex rel. Louisiana New York Guar from the elev- sovereign immunity derives Steele, anty Indemnity & Co. 134 v. distinguish these does amendment enth 230, 511, (1890), 10 33 S.Ct. L.Ed. 891 and since federal sover- from Bartlett’s cases leading point, the case on this Louisiana v. immunity has a constitutional eign also Jumel, (17 Otto) 711, 128, 2 107 U.S. S.Ct. base, of the Constitution. third аrticle the Steele, In the Su L.Ed. note supra 9. See Court, preme a writ from of error the States, Schillinger v. 155 U.S. In United Supreme Court, sover Louisiana held that 85, (1894), cited 163, 39 L.Ed. 15 S.Ct. eign immunity barred a in state suit court decision, Lynch in the Brandéis by Justice repealing legislation alleging that state States in the sued the United plaintiff impairment was an of con unconstitutional Claims, alleging govern- that the Court of Since, indicates, tract. as Jumel Louisiana wrongful plaintiff’s patent, use of ment’s also not waived its amend had eleventh taking property, was a claim a as immunity, ment forum was of the Unit- upon the Constitution “founded bring to his constitu available for Steele The Tucker Act. the ed States” Jumel, although challenge. tional In the Court, “Congress stating has Supreme Court that the bond con found Louisiana specify the cases absolute discretion an “unmistakably tracts at issue ... would be contingencies liability in which protected by the Constitution of the courts the Government submitted impairment,” against States 107 U.S. at determination,” 166, at id. 135, proceeded at Court plaintiff’s claim as a at construed state: held that such it fell outside the tort and as coupons par- bonds which Act given the Tucker and was consent ties these suits hold have not been barred, upon if founded even it was judgment, and there is no reduced Id. at S.Ct. at Constitution. State, capacity way in its in which as Pennoyer McConnaughy, political community, organized can be pur- L.Ed. 363 State, any court brought before Oregon land chaser of from the state States, answer or the United officials, challenging subsequent state sued suit the name these holders to legislation cancelling agree- his sale state express- judgment. obtain such a ment as violation of the contracts clause ly by the decided Court of the federal Constitution. such a could not State that suit against found suit not to be the state courts, brought in the State and under permitted plaintiff injunctive to seek of the Consti- Eleventh Amendment defendants, against plain- relief since tution can be sued in the courts no State sought compel simply tiff them not to of an- States a citizen the United allegedly in accord act with the unconstitu- there other State. Neither was when legislation, pay- seek any tional and did not issued, now, is there the bonds were nor money ment of or relief. other affirmative giving statute or decision 18-19, 11 If Id. at S.Ct. at 704. the suit remedy the bondholders State type, had been latter could not elsewhere, by manda- either courts maintained, for, been have the Court State in injunction, mus or said, a State suit “[t]he political capacity, compel it to do unqualifiеd” is absolute and under the elev- done, agreed should be but what it amendment, though enth “even the sole refuses to do. which it object bring of such suit be to the State added) omitted). (citation (emphasis Id. operation within For- & [impairment provision.” generally Larson Domestic Id. See contracts] 710 n. Corp., at eign 11 S.Ct. at Commerce (Frank- so repeatedly. n. has done The truth of furter, J., dissenting) (collecting authori- the matter is the reverse of the majority's ties). claim. No Court decision has sovereign immunity, ever denied in a case case, majority In the Larson apply, where it otherwise would because a sub silentio Morri- overruled asserts challenge to a above, statute was maj. decision discussed son v. Work 709-10, advanced. referred op. the Court at rule that: established just may go of the cases Some discussed fail, course, may as one a suit Of beyond the limited thesis maintained here: sovereign, if even it against sovereign immunity that bars a constitu- being sued has the officer claimed that challenge govern- tional denial of a unconstitutionally beyond his acted mental that benefit unless waives requested if the relief statutory powers, immunity. Insofar as these cases address by merely ordering granted can not be conduct, governmental I coercive take no complained the conduct cessation of position they good on whether remain law require disposition ... of will of but today. surely But these decisions sovereign property. unquestionably Court, Supreme they have unless all some- 11, 1462 11 at n. 69 at n. 337 U.S. S.Ct. overruled, silently how I been which find omitted). (citation Nor did the dissent in believe, impossible to demonstrate that the any quarrel this rule. have Larson empowered court was not hear district 715, (referring to at 1474 at 69 S.Ct. Id. though in- Bartlett’s benefit claim even it government property”). “interference with corporates challenge. a constitutional unanimously by the doctrine endorsed The sovereign The immunity existence of Court, upholding of the Larson members involving challenges cases constitutional sovereign immunity in the face of a consti- supported by a statute is further the unde- claiming challenge plaintiff tutional sovereign immunity niable existence of sovereign genus property, describes of challenges are made to when constitutional governmen- a claim to claims within which the actions of executive branch species. is a tal benefits such as Bartlett’s officials. Larson, course, Jordan, says explicitly: that of also Edelman See fail, 1356-58, 664-69, may against the sover- 39 L.Ed.2d suit as one 94 S.Ct. “[A] (claim (1974) payment previously eign, of if it is claimed that the officer even being unconstitutionally.” eleventh amend- denied benefits barred sued has acted challenge despite ment constitutional n. at n. 11. at 691 U.S. program). state’s administration benefit This is the reason that constitutional tort created v. Six Bivens Unknown cases, applying In none these whether the Federal Bureau Agents Named sovereign immunity or the United States’ Narcotics, of a state under the eleventh amend- support would a dam- L.Ed.2d 619 ment, did concern itself with the Court age against agents only and not action other forum avail- whether against Justice Har- the United States. claim, and, as just for a able point explicit. lan’s concurrence made this shown, in no a number of these cases such majority simply forum existed. way the law in the same understood wrong asserting Supreme that the Act to amended the Federal Tort Claims has never held that there was immunity as sovereign to Bivens challenge waive forum which a constitutional Jordan, 415 also statute claims.13 See Edelman to a could be heard. Furthermore, provision should be viewed this [amend- the date of enactment of [A]fter Act, counterpart to the Bivens case and Tort 28 U.S.C. ment to the Federal Claims [sic], 2680(h) (1982)], progenty in that it waives the who innocent individuals defense subjected sovereign to make the Govern- so as raids in Bivens will [like ] damages independently liable in for ment have a cause of action the individual type alleged that is to have agents same conduct Federal and the Federal Government. 1347, 1356-58, 39 unconstitutional actions obscure execu- officials, seem, fortiori, (eleventh tive it would amendment L.Ed.2d alleged based on the bar claims on constitution remedy based damage bars unconstitutionality a statute. challenge to state adminis al and Recent deci program). of benefit tration To take Robison’s brief statement about also found have this court sions barring a con- constitutional difficulties immunity bars challenge to a benefits statute stitutional Hohri v. action. challenges to executive silentio, as, removing doctrine of sub (D.C. States, 244-45 782 F.2d this area would consti immunity bars Cir.1986) (sovereign sweeping revolutionary produce thus seeking damages for ex challenge tutional mean, example, results. would during Japanese internment ecutive in Bowen v. Court’s statement Washington Met II); Morris v. World War 405(g), section City New York that Authority, 781 Area Transit ropolitan there, provision allowing judicial review (extending (D.C.Cir.1986) sover F.2d provision governs is the same state and of both eign immunities here, Act is a appeals under the Medicare Washington Metropoli to the governments sovereign immunity, a statement waiver of Authority suit to bar Transit tan Area Robison, must be years made twelve after discharge as a plaintiffs alleging light of the earli- regarded as erroneous violated the Constitu Police officer Transit mean that the distinc- er dictum. It would tion). claims and resistance tion between benefit laid in cases is clear. to enforcement actions down of cases significance these The Maricopa County, and Lynch such as to bar constitu- serious matter It is a more as well as recognized in the Hart Dialectic government based against the claims tional treatise, silently has been obli- than in the Davis of an executive officer on the actions It should mean on the terated. a claim based it is to bar such Salfi Nestor, rely upon degree they unconstitutionality of an act asserted distinction, cast into doubt, are at least This, the reason same Congress. no mean, for the reasons It should presumption re- doubt. is a that there government may no given, that the just not the latter. the former but view as to against longer claim thou- supra pp. See There are 717-18. the unconstitu- damage in- actions based on capable of of executive officers sands sovereign If conduct of its officers. injury but who are tional flicting unconstitutional immunity is abandoned as constitutional- hier- many tiers down the executive branch claims, im- it would seem ly-based benefit do not reflect archy. Their actions often immunity anywhere. support directly possible judgment anyone who immunity as to contrast, By The Tucker Act’s waiver democratically accountable. super- made claims would be constitutional Congress is the deliberate deci- an act of in established upheavals These Houses of fluous. of the two sion of the members draw from a re- are too much to approved by the doctrine Congress which must be for an I it safer think passed by supermajorities mark Robison. President or premise proceed on the inferior court to veto. Since Congress over the President’s sovereign immunity re- govern- the law immunity protects the sovereign that it always has been and mains what damage of the ment from claims because obligation (and im- to waive that case under for which occurred in Bivens imposes liability upon (even though the indi- munity Govern- claim the individual from that involved). judgment- ment officials be unavailable vidual official Cong., S.Rep. 1st Sess. 3 S.Rep. supra, 93d No. No. at 2-3 proof). See also Green, added), quoted (emphasis law, in Carlson v. present ("As principle if a general 64 L.Ed.2d аgent violates someone’s Federal quoting approvingly The Court in remedy Feder- rights there is no ... again language acknowledged that al- this though thus doctrine —sover- This ancient al Government. brings plaintiff based a Bivens a claim bar.”). eign —stands Constitution, directly the United States is on the jur- gress to Limit Jurisdic court of deprives the district therefore tion, (1984); Pub.Pol’y Bartlett’s suit. 7 HarvJ.L. over & isdiction Alstyne, A Critical Guide to Ex Parte

Van McCardle, (1973); 15 Ariz.L.Rev. 229 III. Wechsler, The Courts and the Constitu majority said about should be A word tion, (1965). Among 65 Colum.L.Rev. 1001 jurisdic- majority reads opinion. reaching generally opposite those con containing here as involved tional statute Ratner, Congressional Power clusion are: exception for constitutional unstated Appellate over Jurisdiction the Su Act. I have challenges to the Medicare Court, preme (1960); U.Pa.L.Rev. why this construction sufficiently explained Rotunda, Congressional Power to Restrict “fairly possible,” as is not the statute the Jurisdiction the Lower Federal states that a construc- Supreme Court Courts and the Problem School Bus employed to if it is avoid must be tion (1976); ing, Sager, 64 Geo.L.J. 839 Having issue. deciding a constitutional Court, 1980 Term—Foreword: the constitu- right to avoid purchased Congress’ Constitutional Limitations high price unacceptably issue at an tional Regulate Authority to the Jurisdiction statute, however, in the deformation Courts, the Federal 95 Harv.L.Rev. 17 unaccountably casts its majority then (1981).14 rash, put It seems to me it no on to decide the away by going purchase quick higher, to offer a answer to this issue Robison avoided. Res- question profound in a case that Con- does not olution of —the or, constitu- gress given remove over require majority’s statutory types of cases— and all construction, tional issues upon even touch it.15 either the ma- utterly unnecessary under may sovereign the doctrine of be that my rationale or own. jority’s change way major- will majority’s purported resolu Despite the desires; ity may it be that the remark in Congress’ plenary pow the issue of tion of Robison about the constitutional difficul- problem posed by jurisdiction, er over presented if a benefits ties that would be McCardle, parte express opinion I no Ex of its own constitu- statute denied review subject than to note that it is on that other tionality presages a radical transformation majority’s cur complex far more than the had seemed settled doctrine. As of what suggest. sory disposition of it would said in dissent in Lar- Justice Frankfurter subject sharply are divided on the Scholars Foreign son v. Domestic & Commerce Among and the literature is voluminous. Corp., Congress that conclude has the articles (1949): 93 L.Ed. 1628 degree power jurisdic of to remove some concerning sov- The course of decisions hear defenses in en tion to ereign immunity good of is a illustration Anderson, The Power forcement cases are: conflicting that often considerations Congress Appellate Limit Juris of diction struggle mastery judicial pro- Court, 1981 Det.C. cess, varying Graglia, The 753; implicitly. de- Power Con at least L.Rev. every hypothetical complex guard against just evil. Much 14. In order to realize how the issue become, integrity literature has is and how enormous the must be left to the wisdom Gunther, otherwise, Congressional see Power to Curtail Fed- representatives. elected Were it Opinionated eral An Guide to Court Jurisdiction: long ago to abandon not courts would have had Debate, Ongoing Stan.L.Rev. 896 n. 3 the (1984). variety only sovereign immunity but a of doc- standing, political justiciability, such as trines requirement question, of a case or con- and the posi- majority may 15. The be moved to state a troversy, regularly operate keep courts subject expressed tion on this because of its sovereign issues. That im- from constitutional application concern that of the doctrine of sov- not, itself, ground munity so is sufficient does ereign immunity might permit abhorrent wel- jettison the doctrine. is, however, legislation. fare truth The constitutional doctrines cannot be framed to times, the momentum grees, at different arrested historic doctrine COMMITTEE FOR REPORTERS PRESS, feeling that unexpressed OF the et FREEDOM

deflected al., Appellants, immunity runs counter governmental justice. reason and notions of prevailing found concepts then available Legal UNITED DEPARTMENT OF STATES feeling— this give effect to (Two Cases) JUSTICE, et al. happen beginning Perhaps that is Nos. 85-6144. immunity in field. this respect to development such implications of Appeals, United States however, recognized, before should District Columbia Circuit. step It must be remembered is taken. next Argued Oct. merely failed to here sovereign immunity, articulate waiver April Decided that there shall affirmatively stated it has Secretary’s review To rule that claims under $1000. denial of is unconstitutional is denial of review of ultimate decide least since has been debated

McCardle, prevent for if benefits, government of claims for the more drastic certainly may not take challenges barring

action statute a defendant whom

to a sought If a statute is to be enforced. taken, to be it should

step so momentous is court, particu- taken an inferior

not be majority’s the court

larly a case where step su- construction ‍‌‌​​‌​‌‌​​​​‌​‌‌​‌​​​​‌​​‌‌​‌‌‌‌‌‌​‌​‌‌​​​‌‌​​‌​‍makes If, hand, con-

perfluous. on the other enough

cept retains benefits,

vitality to bar a deci- a claim implications

sion to that effect has no

congressional power to remove constitu- jurisdiction in actions.

tional enforcement majority

The division between

myself discontinuity reflects a in the law. dif-

Robison’s remark about constitutional simply

ficulties cannot be reconciled with City recognition York’s

Bowen New provisions ques- sovereign immunity,

tion involve

Court continues to honor. For the reasons

given, conclude, pending I think it best

further from the clarification

Court, denied

district court Bart- entertain

lett’s claim.

I dissent.

Case Details

Case Name: Mary Bartlett, on Behalf of Josephine Neuman v. Otis R. Bowen, Secretary, Department of Health and Human Services

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 31, 1987

Citation: 816 F.2d 695

Docket Number: 85-5233

Court Abbreviation: D.C. Cir.