                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-2307


NMS HEALTHCARE OF HAGERSTOWN, LLC,

                Petitioner,

          v.

UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES,

                Respondent.



On Petition for Review of an Order of the Department of Health
and Human Services. (A-14-95).


Submitted:   September 30, 2015             Decided:   October 13, 2015


Before KING and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Petition dismissed by unpublished per curiam opinion.


Mark A. Yost, Jr., Hyattsville, Maryland, for Petitioner. Rod
J. Rosenstein, United States Attorney, Jane E. Andersen,
Assistant United States Attorney, Baltimore, Maryland, for
Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      NMS       Healthcare     of    Hagerstown          (“NMS”),    a    skilled       nursing

care facility, seeks review of a final decision of the Secretary

of the Department of Health and Human Services.                              That decision

affirmed        an     administrative           law       judge’s        (“ALJ”)     decision

upholding        the   imposition         of    a     per    instance      civil     monetary

penalty (“CMP”) against NMS for its noncompliance with federal

Medicare        regulations.         We    dismiss        the   petition      for       lack    of

jurisdiction.

      If    a    skilled      nursing      facility         fails   to    comply    with       the

requirements of the federal Medicare program, the Secretary is

authorized to “impose a civil money penalty in an amount not to

exceed     $10,000      for    each       day    of      noncompliance.”           42    U.S.C.

§ 1395i-3(h)(2)(B)(ii)(I) (2012).                        A party “adversely affected

by a determination of the Secretary [to impose a CMP] may obtain

a review of such determination” by filing a petition in the

appropriate United States Court of Appeals and requesting that

the determination be modified or set aside.                          42 C.F.R. § 1320a-

7a(e)    (2014);       see    42    U.S.C.      § 1395i-3(h)(2)(B)(ii)(I)               (cross-

referencing regulation).

      Generally,        a    finding       that     a    skilled     nursing       facility’s

deficiencies caused immediate jeopardy to the health or safety

of   the    residents         or    patients        is    not   reviewable         under       the

regulations.           42    C.F.R.       § 498.3(d)(10)(i)          (2014).            While   a

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facility may appeal a finding of noncompliance, § 498.3(b)(13)

(2014), it may not appeal the level of noncompliance unless that

level    would   affect       the    range     of    CMP    amounts        that   could   be

imposed.             § 498.3(b)(14)(i)            (2014).            For     deficiencies

constituting immediate jeopardy, penalties range from $3,050 to

$10,000 per day.            § 488.438(a)(1)(i) (2014).                For deficiencies

that do not constitute immediate jeopardy but have the potential

for more than minimal harm, penalties range from $50 to $3,000

per     day.         § 488.438(a)(1)(ii)            (2014).          However,     monetary

penalties      for    a   single    instance        of   noncompliance         range   from

$1,000 to $10,000 per instance regardless of the existence of

immediate jeopardy.          § 488.438(a)(2) (2014).

      In the instant petition, NMS challenges only the finding of

immediate      jeopardy       and    asserts         that     this     court      possesses

jurisdiction     by       virtue    of   42   U.S.C.       § 1395i-3(h)(2)(B)(ii)(I)

and 42 C.F.R. § 1320a-7a(e).              However, the cases cited by NMS in

support of our jurisdiction are distinguishable because they did

not address the imposition of a per instance CMP, but instead

reviewed the imposition of per diem CMPs, penalties to which the

immediate      jeopardy      finding      is      relevant      in     determining        the

appropriate range of the CMP.                 See Grace Healthcare of Benton v.

U.S. Dep’t of Health & Human Servs., 603 F.3d 412, 417 (8th Cir.

2009) (based on immediate jeopardy determination, facility fined

$3,500 per day for two days and lost training program).                                   The

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immediate       jeopardy      determination         plays      no   role,     however,      in

determining the range of a per instance CMP as levied in the

instant case.

       NMS    asserts,     in     the    alternative,          that    this      court     has

jurisdiction because the immediate jeopardy determination is a

separate      agency     action       with     harmful      consequences         that      fall

within    the      Administrative        Procedures      Act.         Although       the   APA

provides that “[a] person . . . adversely affected . . . by

agency action . . . is entitled to judicial review thereof,” 5

U.S.C. § 702 (2012), the APA “is not a jurisdiction-conferring

statute,” Lee v. U.S. Citizenship & Immigration Srvs., 592 F.3d

612, 619 (4th Cir. 2010) (internal quotation marks omitted).

Instead, the jurisdictional source for an action under the APA

is 28 U.S.C. § 1331 (2012), the federal question statute, which

grants district courts original jurisdiction to review agency

action.      Id.

       “Because      district         courts    have    general       federal        question

jurisdiction under 28 U.S.C. § 1331, the normal default rule is

that    persons      seeking      review       of   agency      action      go    first     to

district court rather than to a court of appeals.”                          Nat’l Mining

Ass’n v. Sec’y of Labor, 763 F.3d 627, 632 (6th Cir. 2014)

(internal quotation marks omitted).                     “Initial review of agency

decisions     occurs     at     the    appellate       level    only    when     a    direct-

review statute specifically gives the court of appeals subject-

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matter   jurisdiction      to   directly   review    agency   action.”    Id.

(internal quotation marks omitted).               As discussed above, the

direct-review statute conferring jurisdiction on this court is

inapplicable here.

       Accordingly,   we   conclude   that   we     lack   jurisdiction   over

NMS’   petition   for   review.       We   dispense    with    oral   argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.


                                                           PETITION DISMISSED




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