 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 13, 2011             Decided February 7, 2012

                        No. 11-5076

                    BRIAN HALL, ET AL.,
                       APPELLANTS

                              v.

  KATHLEEN SEBELIUS, SECRETARY OF THE UNITED STATES
   DEPARTMENT OF HEALTH AND HUMAN SERVICES, AND
    MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL
              SECURITY ADMINISTRATION,
                      APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:08-cv-01715)


    Kent M. Brown argued the cause for appellants. With
him on the briefs was Frank M. Northam.

     Samantha L. Chaifetz, Attorney, U.S. Department of
Justice, argued the cause for appellees. With her on the brief
were Tony West, Assistant Attorney General, Ronald C.
Machen Jr., U.S. Attorney, Beth S. Brinkmann, Deputy
Assistant Attorney General, and Mark B. Stern, Attorney. R.
Craig Lawrence, Assistant U.S. Attorney, entered an
appearance.
                               2
    Before: GINSBURG, 1 HENDERSON, and KAVANAUGH,
Circuit Judges.

   Opinion for the Court filed by Circuit Judge
KAVANAUGH, with whom Circuit Judge GINSBURG joins.

    Dissenting opinion filed by Circuit Judge HENDERSON.

     KAVANAUGH, Circuit Judge: This is not your typical
lawsuit against the Government. Plaintiffs here have sued
because they don’t want government benefits. They seek to
disclaim their legal entitlement to Medicare Part A benefits
for hospitalization costs. Plaintiffs want to disclaim their
legal entitlement to Medicare Part A benefits because their
private insurers limit coverage for patients who are entitled to
Medicare Part A benefits. And plaintiffs would prefer to
receive coverage from their private insurers rather than from
the Government.

     Plaintiffs’ lawsuit faces an insurmountable problem:
Citizens who receive Social Security benefits and are 65 or
older are automatically entitled under federal law to Medicare
Part A benefits. To be sure, no one has to take the Medicare
Part A benefits. But the benefits are available if you want
them. There is no statutory avenue for those who are 65 or
older and receiving Social Security benefits to disclaim their
legal entitlement to Medicare Part A benefits. For that reason,
the District Court granted summary judgment for the
Government. We understand plaintiffs’ frustration with their
insurance situation and appreciate their desire for better
private insurance coverage. But based on the law, we affirm
the judgment of the District Court.


    1
       As of the date the opinion was published, Judge Ginsburg
had taken senior status.
                                 3
                                  I

     Most citizens who are 62 or older and file for Social
Security benefits are legally entitled to receive Social Security
benefits. See 42 U.S.C. § 402(a). Since Congress created
Medicare in 1965, entitlement to Social Security benefits has
led automatically to entitlement to Medicare Part A benefits
for those who are 65 or older. See 42 U.S.C. § 426(a); see
also Social Security Amendments of 1965, Pub. L. No. 89-97,
§ 101, 79 Stat. 286, 290.

     Plaintiffs Armey, Hall, and Kraus all receive Social
Security benefits and are 65 or older. Therefore, they are
automatically entitled to Medicare Part A benefits. But they
want to disclaim their legal entitlement to Medicare Part A
benefits. 2 In other words, they want not only to reject the
Medicare Part A benefits (which they are already free to do)
but also to obtain a legal declaration that the Government
cannot pay Medicare Part A benefits on their behalf.
According to plaintiffs, if they could show their private
insurers that they are not legally entitled to Medicare Part A
benefits, they would receive additional benefits from their
private insurers. Plaintiffs argue that the statute allows them
to disclaim their legal entitlement to Medicare Part A benefits
and that the agency has violated the statute by preventing
them from doing so. 3




    2
       The two other named plaintiffs do not now receive Social
Security benefits but they wish to be able to do so without
becoming entitled to Medicare Part A benefits.
     3
       Plaintiffs specifically target the agency’s Program Operations
Manual System, which does not allow a beneficiary to disclaim the
legal entitlement to Medicare Part A benefits.
                              4
                              II

     We first consider plaintiffs’ standing. Plaintiffs claim
that their private insurers have curtailed coverage as a result
of plaintiffs’ entitlement to Medicare Part A benefits.
Plaintiff Armey declared that his legal entitlement to
Medicare Part A benefits led his Blue Cross plan to reduce
coverage without a matching reduction in premium. Plaintiff
Hall declared that his Mail Handlers plan stopped acting as
his primary payer because of his legal entitlement to Medicare
Part A benefits. They claim they would receive enhanced
coverage from their private insurers if they were not entitled
to Medicare Part A benefits. For purposes of the standing
inquiry, we must accept those declarations as true.

     We conclude that Armey and Hall have suffered injuries
in fact from their reduced private insurance. They have
shown causation because their private insurance has been
curtailed as a direct result of their legal entitlement to
Medicare Part A benefits. And as to redressability, plaintiffs
claim that they could obtain additional coverage from their
private insurance plans if allowed to disclaim their legal
entitlement to Medicare Part A benefits.

    Because Armey and Hall have standing, we need not
address standing for the other plaintiffs. We therefore
proceed to the merits.

                              III

    Because plaintiffs are 65 or older and are entitled to
Social Security benefits, they are “entitled to hospital
insurance benefits” through Medicare Part A. 42 U.S.C.
§ 426(a). But plaintiffs do not want to be legally entitled to
Medicare Part A benefits.
                                5
     To be clear, plaintiffs already “may refuse to request
Medicare payment” for services they receive and instead
“agree to pay for the services out of their own funds or from
other insurance.” MEDICARE CLAIMS PROCESSING MANUAL,
ch. 1, § 50.1.5 (2011). So they can decline Medicare Part A
benefits.

     But plaintiffs want something more than just the ability to
decline Medicare payments. They seek a legal declaration
that Medicare Part A benefits cannot be paid on their behalf –
a declaration, in other words, that they are not legally entitled
to Medicare Part A benefits. But the statute simply does not
provide any mechanism to achieve that objective. If you are
65 or older and sign up for Social Security, you are
automatically entitled to Medicare Part A benefits. You can
decline those benefits. But you still remain entitled to them
under the statute.

     What plaintiffs really seem to want is for the Government
and, more importantly, their private insurers to treat plaintiffs’
decision not to accept Medicare Part A benefits as meaning
plaintiffs are also not legally entitled to Medicare Part A
benefits. But the problem is that, under the law, plaintiffs
remain legally entitled to the benefits regardless of whether
they accept them.

     Consider an analogy. A poor citizen might be entitled
under federal law to food stamps. The citizen does not have
to take the food stamps. But even so, she nonetheless remains
legally entitled to them. So it is here.

    Plaintiffs offer four arguments for why they must be
allowed to disclaim their legal entitlement to Medicare Part A
benefits. None is persuasive.
                                6
     First, plaintiffs say that the plain meaning of the statutory
term “entitled” requires that the beneficiary be given a choice
to accept or reject Medicare Part A.              But plaintiffs’
entitlement is to “hospital insurance benefits” under Medicare
Part A. 42 U.S.C. § 426(a) (emphasis added). As explained
above, plaintiffs may refuse Medicare Part A benefits. See
MEDICARE CLAIMS PROCESSING MANUAL, ch. 1, § 50.1.5. So
they already have a choice to accept or reject those benefits.

     Second, plaintiffs claim that, by statute, Medicare Part A
is a voluntary program. That’s true in the sense that plaintiffs
can always obtain private insurance and decline Medicare Part
A benefits. But the fact that the program is voluntary does
not mean there must be a statutory avenue for plaintiffs to
disclaim their legal entitlement to Medicare Part A benefits.

     Third, plaintiffs acknowledge that they can escape their
entitlement to Medicare Part A benefits by disenrolling from
Social Security and forgoing Social Security benefits. From
that, plaintiffs contend that entitlement to Medicare Part A
benefits has thereby been made a prerequisite to receiving
Social Security benefits, in contravention of the statute
governing entitlement to Social Security benefits. But
plaintiffs have it backwards. Signing up for Social Security is
a prerequisite to Medicare Part A benefits, not the other way
around.

     Fourth, plaintiffs note that entitlement to Social Security
benefits is optional and argue that entitlement to Medicare
Part A should likewise be optional. But Social Security
participation is optional because filing an application for
benefits is a statutory prerequisite to entitlement. See 42
U.S.C. § 402(a)(3). Congress could have made entitlement to
Medicare Part A benefits depend on an application. But
Congress instead opted to make entitlement to Medicare Part
                              7
A benefits automatic for those who receive Social Security
benefits and are 65 or older.

     In sum, plaintiffs’ position is inconsistent with the
statutory text. Because plaintiffs are entitled to Social
Security benefits and are 65 or older, they are automatically
entitled to Medicare Part A benefits. The statute offers no
path to disclaim their legal entitlement to Medicare Part A
benefits. Therefore, the agency was not required to offer
plaintiffs a mechanism for disclaiming their legal entitlement,
and its refusal to do so was lawful. 4

                            * * *

    We affirm the judgment of the District Court.

                                                    So ordered.




    4
      We have considered plaintiffs’ other arguments and find
them without merit.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
     In Silver Blaze, a prized race horse disappears from its
stable on the eve of a high-stakes race. By the time Inspector
Gregory arrives from Scotland Yard, Sherlock Holmes is on
the case.
         Gregory: “Is there any point to which you
                  would wish to draw my attention?”
         Holmes: “To the curious incident of the dog
                 in the night-time.”
         Gregory: “The dog did nothing in the night-
                  time.”
         Holmes: “That was the curious incident.”
SIR ARTHUR CONAN DOYLE, MEMOIRS OF SHERLOCK HOLMES
22 (A. L. Burt Co. 1922) (1894). What led Holmes to
conclude that the dog knew the thief was its silence. The dog
did not bark. Ditto here. The majority’s silence on the sole
question in this case—is the Social Security Administration
(SSA) authorized to penalize an individual who seeks to
decline Medicare, Part A coverage by requiring him to forfeit
his Social Security benefits and repay any benefits previously
received—provides the answer: no. Because I believe that
SSA’s Program Operations Manual System (POMS) gives the
SSA power that the Congress in no way provides, I
respectfully dissent.1

1
     Although the plaintiffs assert that the POMS was produced by
Health and Human Services (HHS) Secretary Sebelius and SSA
Commissioner Astrue jointly, see, e.g., Am. and Substituted Compl.
¶18, the POMS is an internal SSA document used by Social Security
employees in assessing Social Security claims, Appellees’ Br. at 8;
Program         Operations        Manual       System       Home,
https://secure.ssa.gov/apps10/ (last visited January 23, 2012).
Accordingly, this dissent addresses only Commissioner Astrue’s
authority vel non to devise the challenged POMS provisions.
                                  2
                                  I.
     The Medicare Act, 42 U.S.C. §§ 1395 et seq., establishes
a program of health insurance for the elderly and disabled.
Medicare Part A, often called “Hospital Insurance” or “HI,”
covers services furnished by hospitals and other institutional
providers. An individual is statutorily entitled to Medicare,
Part A upon becoming entitled to monthly Social Security
retirement benefits (SSRB).2 Under the Medicare Act:
          Every individual who:
             (1) has attained age 65, and
             (2)(A) is entitled to monthly insurance
             benefits under [42 U.S.C. § 402(a)], . . .
          shall be entitled to hospital insurance
          benefits under part A . . . for each month for
          which he meets the condition specified in
          paragraph (2) . . . .
42 U.S.C. § 426(a). Thus, anyone who “is entitled” to SSRB
“shall be entitled” to Medicare, Part A benefits immediately
upon his 65th birthday. Id. Under the Social Security Act:
          Every individual who
            (1) is a fully insured individual (as defined in [42
            U.S.C. § 414(a)]),

2
      Certain individuals are not statutorily entitled to Part A
benefits because they do not qualify for SSRB. Specifically, under
42 U.S.C. § 1395i-2(a), an individual who (1) “has attained the age
of 65;” (2) “is enrolled in [Medicare, Part B];” (3) “is either (A) a
citizen or (B) an alien lawfully admitted for permanent residence;”
and (4) “is not otherwise entitled [to Medicare, Part A] . . . shall be
eligible to enroll in [Medicare, Part A].” To secure Medicare, Part
A benefits, he must apply and periodically pay premiums—much
like private insurance.
                                 3
           (2) has attained age 62, and
           (3) has filed application for old-age
           insurance benefits . . .
         shall be entitled to . . . old-age insurance
         benefit[s] . . . .
42 U.S.C. § 402(a). To be “entitled” to SSRB, then, an
individual must first apply therefor; if he fails to file an
application, he is not “entitled” to the benefits regardless of
his age or working history.
     The POMS is a massive internal set of provisions,
produced without notice and comment rulemaking and used
by SSA employees to process claims for SSRB. See Wash.
Dep’t. of Soc. & Health Servs. v. Guardianship Estate of
Keffeler, 537 US. 371, 385 (2003) (POMS provides “the
publicly available operating instructions for processing Social
Security claims”); Power v. Barnhart, 292 F.3d 781, 786
(D.C. Cir. 2002) (POMS is an “interpretive document”
“lack[ing] . . . administrative formality”). The provisions of
the POMS relating to HI alone include more than 100 printed
pages. See SSA’s Program Operations Manual System,
https://secure.ssa.gov/apps10/poms.nsf/chapterlist!openview
&restricttocategory=06 (last visited Jan. 23, 2012).3 The
plaintiffs4 limit their statutory, procedural and constitutional
challenges to three provisions of the POMS, arguing that they

3
      The POMS fits nicely the description the United States
Supreme Court once used for the Medicaid statute: “ ‘an aggravated
assault on the English language, resistant to attempts to understand
it.’ ” Schweiker v. Gray Panthers, 453 U.S. 34, 43 n.14 (1981)
(quoting Friedman v. Berger, 409 F. Supp. 1225, 1226 (S.D.N.Y.
1976)).
4
     I agree with my colleagues that plaintiffs Hall and Armey have
the requisite standing to pursue this suit. Majority Op. at 4.
                               4
impermissibly tether Medicare, Part A entitlement to SSRB
by penalizing them if they decline Medicare, Part A coverage.
     The first of the three challenged provisions, POMS HI
00801.002, reveals the ad hoc manner in which the entire
POMS was assembled. The “Introduction” to the provision
provides in full: “Some individuals entitled to monthly
benefits have asked to waive their HI entitlement because of
religious or philosophical reasons or because they prefer other
health insurance.” POMS HI 00801.002. Then, without so
much as a word of explanation as to the statutory basis or
rationale behind it, the provision announces SSA’s answer,
dubbing it “Policy.”
       Individuals entitled to monthly benefits which
       confer eligibility for HI may not waive HI
       entitlement. The only way to avoid HI
       entitlement is through withdrawal of the
       monthly benefit application. Withdrawal
       requires repayment of all [SSRB] and HI
       benefit payments made.5
POMS HI 00801.002 (emphasis in original). The other two
provisions are equally opaque as to their rationale and silent
on their authority. POMS HI 00801.034 provides:
       To withdraw from the HI program, an
       individual must submit a written request for
       withdrawal and must refund any HI benefits
       paid on his/her behalf as explained in GN
       00206.095 B.1.c.


5
     On its face, POMS HI 00801.002 requires a person who does
not want Medicare, Part A coverage to refund both SSRB and HI
benefits. Plaintiffs Hall and Armey limit their challenge to the
required forfeiture and repayment of their SSRB only.
                                5
       An individual who filed an application for both
       monthly benefits and HI may:
                withdraw the claim for monthly
                 benefits without jeopardizing HI
                 entitlement; or
                withdraw the claim for            both
                 monthly benefits and HI.
       The individual may not elect to withdraw
       only the HI claim.6
(emphases in original). The third, POMS GN 00206.020,
repeats the bare command that “a claimant who is entitled to
monthly [SSRB] cannot withdraw HI coverage only since
entitlement to HI is based on entitlement to monthly [SSRB].”
In short, with no explanation (other than the above clause
beginning “since”) much less a statutory basis, all three
challenged provisions empower SSA personnel to force an
individual who does not want Medicare, Part A coverage to
forfeit future SSRB and refund SSRB payments already
received.
                               II.
    “Not every agency interpretation of a statute is
appropriately analyzed under Chevron [U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984)].” Ala.
Educ. Ass’n v. Chao, 455 F.3d 386, 392 (D.C. Cir. 2006).
Indeed, Chevron deference is appropriate only if the Congress
has delegated authority to an agency to make rules having the

6
    Interestingly, this provision—contrary to the position of
Commissioner Astrue who asserts that anyone entitled to SSRB
“need not apply for” Medicare, Part A coverage, Appellees’ Br. at
17—declares that an individual can “file[] an application for both
[SSRB] and HI,” POMS HI 00801.034.
                               6
“force of law” and the agency rule at issue was “promulgated
in the exercise of that authority.” United States v. Mead
Corp., 533 U.S. 218, 226-27 (2001). Although SSA
Commissioner Astrue is authorized to issue rules with the
“force of law,” see 42 U.S.C. § 405(a), the POMS was not
produced in the exercise of that authority. As we made plain
in Power v. Barnhart, “[the POMS] lack the administrative
formality or other attributes that would justify substantial
judicial deference under Chevron . . . and hence . . . they
would at best qualify for the more limited form of deference
under Skidmore v. Swift & Co., 323 U.S. 134, [139-140]
(1944).” 292 F.3d at 786 (emphasis added). But neither
Skidmore, Chevron nor Mead requires any deference to an
ultra vires “interpretive document.” See, e.g., Ry. Labor
Execs. Ass’n v. Nat’l Mediation Bd., 29 F.3d 655, 671 (D.C.
Cir. 1994) (“[D]eference is warranted only when Congress
has . . . ‘delegat[ed] . . . authority to the agency.’ ” (quoting
Chevron, 467 at 843-44)); Natural Res. Def. Council v. Reilly,
983 F.2d 259, 266 (D.C. Cir. 1993) (“[I]t is only legislative
intent to delegate . . . authority that entitles an agency to
advance its own statutory construction” (internal quotation
marks and citations omitted; brackets in original)); see also
D.C. Hosp. Ass’n. v. District of Columbia, 224 F.3d 776, 780
(D.C. Cir. 2000) (“Because the provision at issue here is
unambiguous, we owe no deference to a contrary construction
even if formally adopted by the Secretary of [HHS].”).
     Here, the scope of the relevant provisions of the
Medicare and Social Security Acts is as plain as the definition
of “entitled.” Under 42 U.S.C. § 426(a), a person who is
“entitled” to SSRB and has reached age 65 “shall be entitled”
to Medicare, Part A benefits. “Entitled” is synonymous with
“eligible,” which means “capable of being chosen” or
“legally qualified.” BLACK’S LAW DICTIONARY 521 (6th ed.
2002) (emphases added). To “entitle” means “to give a right
or legal title to; qualify (one) for something; furnish with
                               7
proper grounds for seeking or claiming something.”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 758
(1993). As explained by the Supreme Court,
       Both in legal and general usage, the normal
       meaning of entitlement is a right or benefit for
       which a person qualifies . . . . It means only
       that the person satisfies the prerequisites
       attached to the right.
Ingalls Shipbuilding v. Dir., 519 U.S. 248, 256 (1997)
(internal quotation marks and citation omitted). This
definition has been applied by our Circuit and others in
interpreting the terms “entitlement” and “entitled” as they are
used in other parts of the Social Security and Medicare Acts.
See Krishnan v. Barnhart, 328 F.3d 685, 688 (D.C. Cir. 2003)
(to be “entitled” means that an individual “qualifies” or has
met the requisite requirements to obtain the benefits); Jewish
Hospital, Inc. v. Sec’y of HHS, 19 F.3d 270, 275 (6th Cir.
1994) (as used in the Medicare Act, “[t]o be entitled . . .
means [to] possess[] the right or title to that benefit”
(emphasis removed)); Fagner v. Heckler, 779 F.2d 541, 543
(9th Cir. 1985) (as used in Social Security Act, “entitled
means to give right or legal title to, qualify (one) for
something; furnish with proper grounds for seeking or
claiming something” (internal quotation marks and citation
omitted)).
     Although the district court noted that the “plain-English
reading of the word ‘entitled’ has its attraction[],” the court
nonetheless held that “in context [of] Medicare ‘entitled’ does
not actually mean ‘capable of being rejected.’ ” Hall v.
Sebelius, 770 F. Supp. 2d 61, 67 (D.D.C. 2011). If the
Congress had wanted to make enrollment in Part A optional,
the court stated, it would have said so expressly. Id. at 67-68.
In 42 U.S.C. § 1395i-2, for example, the Congress provided
that every individual who (1) “has attained the age of 65;” (2)
                                  8
“is enrolled in [Medicare, Part B];”7 (3) “is either (A) a citizen
or (B) an alien lawfully admitted for permanent residence”;
and (4) “is not otherwise entitled [to Medicare, Part A] . . .
shall be eligible to enroll in [Medicare, Part A].” 42 U.S.C.
§ 1395i-2(a) (emphasis added). In the court’s view, if the
Congress had wanted Medicare, Part A coverage to be
optional under 42 U.S.C. § 426(a), the statute would have
provided that any person entitled to receive SSRB who
reaches the age of 65 “shall be eligible to enroll in [Medicare,
Part A].” Hall, 770 F. Supp. at 68.8
    My colleagues reach a similar conclusion. Citing a single
provision of Secretary Sebelius’s Medicare Claims Processing
Manual, they conclude:
        Congress could have made entitlement to
        Medicare Part A benefits depend on an
        application. But Congress instead opted to
        make entitlement to Medicare Part A benefits
        automatic for those who receive Social
        Security Benefits and are 65 or older.




7
     Medicare, Part B provides coverage for the costs of
physicians’ services and other medical services. Unlike Medicare,
Part A, which is financed by a mandatory payroll tax, Medicare,
Part B is financed in large part by enrollees’ premiums.
8
      Comparing 42 U.S.C. § 426(a) and 42 U.S.C. § 1395i-2, as the
district court did, is not that persuasive. Under the first provision,
an individual’s eligibility for Medicare, Part A coverage occurs by
operation of law if he is at least 65 years old and receives SSRB.
The second provision, however, requires him to apply for the
coverage. The two provisions address different circumstances (in
one, the benefit is by operation of law and in the other, by
application) and so are not in pari materia.
                                9
Majority Op. 6-7.9 According to the majority, because the
statute offers “no path to disclaim their legal entitlement to
Medicare Part A benefits,” the “agency was not required to
offer plaintiffs a mechanism for disclaiming their legal
entitlement.” Majority Op. 7 (emphasis added). But that is not
to say that, having chosen to allow disclaimer via the POMS,
the POMS can take away a statutory entitlement (i.e., SSRB)
as a condition of the disclaimer.
     Plaintiffs Hall and Armey do not dispute that entitlement
to Medicare, Part A occurs by operation of law. See Reply Br.
at 2 (“Plaintiffs-Appellants never suggested that they sought
to renounce their entitlement to Medicare, Part A, and they
did not contend that the Defendant-Appellees must allow
them to . . . somehow declare that Plaintiffs-Appellants are
not entitled to Medicare, Part A.”). Instead, they argue
something much more fundamental, i.e., that there is no
statutory authority for the POMS’s edict that an individual
who declines Medicare, Part A coverage is required to
forego/refund SSRB. I agree. The relevant language of both
statutes, 42 U.S.C. §§ 402(a) and 426(a), reads identically in
that they both provide that an individual “shall be entitled” to
benefits if he meets certain qualifying conditions. Neither
statute requires an “entitled” individual to accept the benefits.

9
      The majority opinion cites an equally ad hoc manual put
together not by SSA Commissioner Astrue but by codefendant
Sebelius, which states that a Medicare beneficiary “may refuse to
request Medicare payment” for services he receives and instead
“agree to pay for the services out of [his] own funds or from other
insurance.” Majority Op. at 5 (citing Medicare Claims Processing
Manual, ch. 1, § 50.1.5 (2011)). But even a cursory examination of
the Medicare, Part A maze reveals this option to be illusory. Under
42 U.S.C. § 1395cc(a)(1)(A)(i), a hospital cannot charge or accept
private payment “for items or services for which [an] individual is
entitled to have payment made under [Medicare, Part A].”
                                  10
Nor do they even hint at permitting the SSA to withdraw
SSRB and demand repayment thereof if an individual does
not want to participate in Medicare, Part A. The POMS alone
does that. It gives SSA Commissioner Astrue a power not
provided him by the Congress—the power to penalize a
person who is “entitled” to Medicare, Part A by operation of
law but who does not want Part A coverage by stripping that
person of future SSRB and forcing repayment of SSRB
already received.10
    In American Bar Association v. FTC, we made plain that
an agency cannot exercise regulatory power without
congressional grant. 430 F.3d 457, 468 (D.C. Cir 2005). As
we explained, “if we were ‘to presume a delegation of power’
from the absence of ‘an express withholding of such power [in

10
      For this reason, my colleagues’ analogy to a “poor citizen”
who is “entitled to” but “does not have to take food stamps” is
inapposite. See Majority Op. at 5. Indeed, much like the rest of its
analysis, the majority opinion’s analogy misses the issue in this
case: whether an agency, without statutory authority, can require a
person to forego/refund a statutory entitlement simply because he
does not want another federal benefit that also accrues by operation
of law. If the food stamp beneficiary could decline that benefit only
by also giving up Medicaid and repaying all Medicaid benefits
received, I wonder if my colleagues would endorse that agency
overreach. Here’s another analogy. A person born in the United
States is, by operation of law, entitled to the benefits of citizenship
upon his birth. U.S. Const., Amend. XIV, § 1 (“All persons born . .
. in the United States . . . are citizens of the United States and the
State wherein they reside.”); see, e.g., 22 U.S.C. § 212 (a “person[]
. . . owing allegiance . . . to the United States”—i.e., a citizen or
national—is entitled to a U.S. passport). If he were to eventually
renounce his citizenship, see 8 U.S.C. § 1481(a)(5), could the
United States Department of Education, through an “interpretive
document,” force him to repay the federal portion of his
primary/secondary public education? Of course not.
                              11
the statute], agencies would enjoy virtually limitless
hegemony.’ ” Id. (quoting Ry. Labor Execs. Ass’n, 29 F.3d at
671) (emphasis in original); see also Ry. Labor Execs. Ass’n,
29 F.3d at 671 (to suggest “deference is implicated any time a
statute does not expressly negate the existence of a claimed
administrative power (i.e., when the statute is not written in
“thou shalt not” terms), is both flatly unfaithful to the
principles of administrative law . . . and refuted by
precedent”). As the Supreme Court has aptly observed, the
“[Congress] does not . . . hide elephants in mouseholes.”
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). If
the Congress had intended to impose the “death penalty” on
SSRB for anyone declining Medicare, Part A coverage, it
would not have hidden the imposition in the non-germane
phrase “shall be entitled.” By using the word “entitled,” the
Congress made plain that the “legal right or title” to
Medicare, Part A coverage, while available by operation of
law, is not unwaivable, much less waivable only by
sacrificing benefits for which an individual has paid.11
    Because there is no statutory basis for the challenged
provisions of the POMS, they are ultra vires. “The legislative
power of the United States is vested in the Congress, and the
exercise of quasi-legislative authority by governmental
departments and agencies must be rooted in a grant of such
power by the Congress and subject to limitations which that
body imposes.” See Chrysler Corp. v. Brown, 441 U.S. 281,
302 (1979). The authority to administer the law is not the
power to make the law. Orion Reserves Ltd. P’ship v. Salazar,
553 F.3d 697, 703 (D.C. Cir. 2009). Accordingly, “a
regulation contrary to a statute is void.” Id. Commissioner
Astrue is clothed with exceptional authority but even he

11
     In response to this well-settled authority, my colleagues—
again—do not bark.
                               12
cannot make law.12
     For the foregoing reasons, I respectfully dissent.




12
    Because I believe the POMS are plainly ultra vires, I do not
address the plaintiffs’ procedural and constitutional challenges.
