                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 12-1713


PAUL FISCHER,    M.D.;   ROBERT   CLARK,   D.O.;   LESLIE   POLLARD,
M.D.,

                 Plaintiffs – Appellants,

           and

EDWIN SCOTT; ROBERT SUYKERBUYK, M.D.; REBECCA TALLEY, M.D.,

                 Plaintiffs,

           v.

DONALD   BERWICK,  M.D.,   in   his  official   capacity   as
Administrator, Centers for Medicare & Medicaid Services;
KATHLEEN SEBELIUS, in her Official Capacity as Secretary of
the United States Department of Health and Human Services,

                 Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, Senior District
Judge. (1:11-cv-02191-WMN)


Submitted:   December 14, 2012               Decided:   January 7, 2013


Before NIEMEYER, MOTZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Timothy   F. Maloney, Veronica B. Nannis, Matthew M. Bryant,
JOSEPH,   GREENWALD & LAAKE, P.A., Greenbelt, Maryland, for
Appellants.   William B. Schultz, U.S. DEPARTMENT OF JUSTICE,
Washington, D.C.; Robert W. Balderston, Lawrence J. Harder, Amy
Weiser, DEPARTMENT OF HEALTH & HUMAN SERVICES, Washington, D.C.;
Stuart F. Delery, Acting Assistant Attorney General, Mark B.
Stern, Alisa B. Klein, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Appellants, six primary care physicians, brought suit

against    Donald      Berwick,    Administrator           of     the    Centers     for

Medicare and Medicaid Services (“CMS”), and Kathleen Sebelius,

Secretary of the United States Department of Health and Human

Services (“HHS”), challenging the method by which CMS and HHS

determine the value of reimbursements paid to physicians for

various    procedures    under    the     Medicare        Physician      Fee   Schedule

(“PFS”).        Specifically, Appellants challenged CMS’s and HHS’s

overreliance      on   the    American     Medical        Association’s        Relative

Value   Update     Committee     (“AMA    RUC”)’s      recommendations          in   the

process    of    determining     Relative      Value      Units    (“RVUs”),       which

influence the PFS.           The district court dismissed the suit for

lack of subject matter jurisdiction, finding that Appellants’

claims were barred under 42 U.S.C. § 1395w-4(i)(1)(B) (2006),

which prohibits judicial review of the determination of RVUs.

Appellants now contend that the district court erred in:                             (1)

holding that § 1395w-4(i)(1)(B) bars judicial review of their

claims; (2) failing to conduct a cursory review of the merits

pursuant to Leedom v. Kyne, 358 U.S. 184 (1958); (3) holding

that    their    due   process    claim       was   not    exempt       from   § 1395w-

4(i)(1)(B)’s bar and failing to consider their delegation clause

claim in this context; and (4) dismissing their Federal Advisory

Committee Act (“FACA”) claims.            Finding no error, we affirm.

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           Appellants first contend that the district court erred

in holding their claims barred by § 1395w-4(i)(1)(B).                           We review

a    district    court’s     dismissal         for   lack       of   subject          matter

jurisdiction de novo.           Etape v. Chertoff, 497 F.3d 379, 382 (4th

Cir. 2007).       There exists a strong presumption that Congress

intends judicial review of administrative action, which can only

be   rebutted     by    clear      and   convincing        evidence        of    contrary

legislative intent.         Am. Soc’y of Cataract & Refractive Surgery

v.   Thompson,    279     F.3d    447,    452   (7th      Cir.    2002).         Contrary

legislative      intent     may    be    proved      by    specific        language      or

legislative      history,    or     by    the    details     of      the    legislative

scheme.   See id.

           Section 1395w-4(i)(1)(B) provides:                    “There shall be no

administrative or judicial review under section 1395ff of this

title or otherwise of . . . the determination of relative values

and relative value units under subsection (c) of this section.”

This provision is a clear and explicit indication of legislative

intent to prohibit judicial review of claims challenging the

determination      of    RVUs.       Accordingly,         the    issue      is       whether

Appellants’ claims challenge the determination of RVUs.

           We     find      that     Appellants’          claims      challenge         the

determination     of    RVUs,     and    therefore     are      barred     by    §    1395w-

4(i)(1)(B).      Section 1395w-4(i)(1)(B) bars challenges not only

to the ultimate determinations of RVUs, but also to the process

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of making those determinations.           See Thompson, 279 F.3d at 452-

54.    Appellants challenge CMS’s and HHS’s reliance on the AMA

RUC’s recommendations in the process of determining RVUs.                    This

is a challenge to the determination of RVUs, not some policy

ancillary to that determination.             See id. at 453 (describing

ancillary policies as those applied only after relative values

are determined, and exempting ancillary policies from § 1395w-

4(i)(1)(B)’s     bar).   Accordingly,        the   district   court       properly

held Appellants’ claims barred under § 1395w-4(i)(1)(B).

            Appellants   next      contend     that    even    if     §    1395w-

4(i)(1)(B) bars review of their claims, the district court erred

in failing to conduct a cursory review of the merits pursuant

to Leedom v. Kyne, 358 U.S. 184 (1958).                Even where a statute

expressly bars judicial review of agency action, Kyne provides

an exception for claims that an agency exceeded its delegated

powers, by acting contrary to a specific prohibition.                 Kyne, 358

U.S. at 188; Hanaeur v. Reich, 82 F.3d 1304, 1307 (4th Cir.

1996).     Under this exception, the court must conduct a cursory

review      of    the    merits      notwithstanding          the     statutory

bar.     Thompson, 279 F.3d at 456; Hanaeur, 82 F.3d at 1309.                 But

even if the exception applies, the district court will not have

jurisdiction over the case unless the cursory review reveals

that       the     agency         violated         a     clear        statutory

mandate.    See Hanaeur, 82 F.3d at 1309.

                                      5
             Appellants       have     waived      this     argument       by    failing    to

raise it in the district court.                    See Muth v. United States, 1

F.3d 246, 250 (4th Cir. 1993).                   In any case, the argument lacks

merit     because     there     is    no    violation         of    a    clear     statutory

mandate.     See Hanaeur, 82 F.3d at 1309.                    Appellants point to no

statutory     provision        prohibiting         reliance        on     the     AMA     RUC’s

recommendations, because no such provision exists.

             Appellants next contend that the district court erred

in finding that § 1395w-4(i)(1)(B) would not violate their due

process rights and in failing to address whether the bar would

violate     the     delegation        clause.          Another      exception       to     the

statutory bar on judicial review exists where the bar would be

unconstitutional.        See Thompson, 279 F.3d at 454.                         With respect

to   the     due     process     claim,          the     district        court     correctly

determined that Appellants have no legitimate property interest

in having RVUs determined in a particular manner, as opposed to

being      reimbursed    at      the       set     rate      for    services        actually

rendered.      See id. at 455.              It therefore properly refused to

except that claim from the statutory bar.                          With respect to the

delegation     clause        claim,    while       the      district      court     did    not

separately         address     this        claim       in    the        context     of     the

unconstitutionality exception, Appellants waived this issue by

failing to raise it below.                 In any case, any error on the part

of   the    district     court        was    harmless.             Because       Appellants’

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“delegation       clause”       claim    is    in       reality       based   entirely     on

statute—namely, 42 U.S.C. § 1395w-4(c)(2) (2006), which gives

the Secretary the power to determine RVUs—Appellants have no

right   to    judicial      review.          See    Am.       Soc’y   of    Dermatology    v.

Shalala, 962 F. Supp. 141, 146 & n.3 (D.D.C. 1996) (refusing to

review plaintiffs’ constitutional arguments, including one based

on    “nondelegation”);          see     also       §     1395w-4(i)(1)(B)         (barring

judicial review of the determination of RVUs “under subsection

(c) of this section”).             Moreover, the argument is unpersuasive,

as the delegation clause is not implicated when a private entity

acts in an advisory role.                See Pittston Co. v. United States,

368 F.3d 385, 395 (4th Cir. 2004).

             Finally,     Appellants          contend         that    the   district   court

erred in dismissing as unreviewable counts one, four, and six of

their complaint.         These counts allege that the AMA RUC is a de

facto federal advisory committee and that it violated the rules

of FACA by failing to open its meetings and records to the

public.      Appellants contend that the district court erred in

dismissing these counts because claims brought under FACA are

not     subject     to      §      1395w-4(i)(1)(B)’s                 bar     on   judicial

review.      See Dermatology, 962 F. Supp. at 146 (“With respect to

plaintiffs’     FACA     claims,        42   U.S.C.       §    1395w-4(i)(1)       does   not

deprive the Court of jurisdiction.”).                      Assuming without deciding

that Appellants’ FACA claims are reviewable, these claims fail

                                              7
in any event because the AMA RUC is not an advisory committee

subject to FACA.      See 5 U.S.C. app. 2 § 3 (2006) (defining an

“advisory committee” as a group established or utilized by an

agency); Dermatology, 962 F. Supp. at 147 (holding that the AMA

RUC was not subject to FACA because it was not established or

utilized by CMS).

           Accordingly, we affirm the district court’s order.                We

dispense   with     oral   arguments       because    the   facts   and   legal

contentions   are    adequately   presented      in   the   materials     before

this court and argument would not aid the decisional process.



                                                                      AFFIRMED




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