                               PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 15-1393


CUMBERLAND COUNTY HOSPITAL SYSTEM, INC., d/b/a         Cape Fear
Valley Health System,

                 Plaintiff - Appellant,

            v.

SYLVIA MATHEWS BURWELL, in her official              capacity   as
Secretary of Health and Human Services,

                 Defendant - Appellee.

-----------------------------------

FUND FOR ACCESS TO INPATIENT REHABILITATION,

                 Amicus Supporting Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:14-cv-00508-BR)


Argued:    January 26, 2016                 Decided:   March 7, 2016


Before TRAXLER, Chief Judge, and WILKINSON and NIEMEYER, Circuit
Judges.


Affirmed    by   published opinion.   Judge Niemeyer wrote the
opinion,    in   which Chief Judge Traxler and Judge Wilkinson
joined.
ARGUED: Kathryn Frances Taylor, K&L GATES LLP, Morrisville,
North Carolina, for Appellant.      Joshua Marc Salzman, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Mark B. Stern, Civil Division, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C.; Thomas G. Walker, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina; William B. Schultz, General Counsel, Janice L.
Hoffman, Associate General Counsel, Susan Maxson Lyons, Deputy
Associate General Counsel, Kirsten Friedel Roddy, Attorney,
UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES, Washington,
D.C., for Appellee.   Ronald S. Connelly, POWERS PYLES SUTTER &
VERVILLE, PC, Washington, D.C., for Amicus Curiae.




                               2
NIEMEYER, Circuit Judge:

      Cumberland County Hospital System, Inc., d/b/a Cape Fear

Valley Health System (“Cape Fear Health System” or “the Hospital

System”), commenced this action to obtain a writ of mandamus

compelling the Secretary of the Department of Health and Human

Services (“HHS”)         to   adjudicate       immediately        its    administrative

appeals on claims for Medicare reimbursement.                       With over 750 of

its   appeals      on     such        claims    awaiting      assignment             to    an

Administrative      Law    Judge      (“ALJ”)    for   more       than   90       days,   the

Hospital System asserts that the Secretary’s delay violates the

congressional mandate that its appeals be heard and decided by

ALJs within 90 days.          See 42 U.S.C. § 1395ff(d)(1)(A).

      The parties agree that, as of February 2014, the Secretary

had   480,000    appeals       awaiting    assignment        to    an    ALJ,      and    the

Secretary conceded in her brief that the number had by then

climbed     to   more     than   800,000       appeals,      creating         a    ten-year

backlog.         While    acknowledging         the    unacceptability              of    the

backlog, the Secretary attributes it to an increased number of

appeals within the Medicare system and inadequate funding by

Congress to hire additional personnel.

      The    district         court     dismissed      the        Hospital         System’s

complaint, relying on two                independent grounds.             It held (1)

that the Hospital System does not have a clear and indisputable

right to an ALJ hearing within a 90-day time frame, as required

                                           3
for issuance of a mandamus order, and (2) that the political

branches, rather than the courts, are best suited to address the

backlog in the administrative process.                We affirm.

       While we agree that the delay in the administrative process

for    Medicare    reimbursement      is     incontrovertibly          grotesque,   the

Medicare Act does not guarantee a healthcare provider a hearing

before an ALJ within 90 days, as the Hospital System claims.

Rather,    it   provides     a    comprehensive       administrative          process --

which includes deadlines and consequences for missed deadlines

-- that    a    healthcare       provider    must    exhaust     before       ultimately

obtaining review in a United States district court.                             Indeed,

within that administrative process, a healthcare provider can

bypass    administrative         reviews     if     such   reviews      are    delayed,

“escalating” for review by a United States district court within

a relatively expeditious time.               The issuance of a judicial order

now,    however,    directing       the     Secretary      to   hear    the    Hospital

System’s claims in the middle of the administrative process,

would unduly interfere with the process and, at a larger scale,

the work of the political branches.                 Moreover, such intervention

would invite other healthcare providers suffering similar delays

to likewise seek a mandamus order, thereby effectively causing

the judicial process to replace and distort the agency process.




                                            4
                                            I

     Cape Fear Health System operates a number of facilities in

eastern North Carolina, delivering medical services to, among

others, beneficiaries of Medicare.                The Medicare Act establishes

a federally subsidized health insurance program for the elderly

and disabled that is administered by the Secretary.                          See 42

U.S.C. § 1395 et seq.

     In    2012   and    2013,    the   Secretary        denied    payment   to    the

Hospital    System      on   over     900       claims   for    reimbursement      for

Medicare    services      that    she    had       initially      authorized.      By

September   2014,    the     Hospital       System   had   over    750   appeals    on

these claims that had been pending for more than 90 days before

the Office of Medicare Hearings and Appeals (“OMHA”) within HHS.

Those   appeals     related      to   claims      for    some   $12.3    million    in

reimbursement.       The Secretary has not even acknowledged receipt

of some of the appeals, and with respect to others, she has

reported a delay of over two years in assigning them to an ALJ.

Because reimbursement of such a large sum is essential to the

Hospital System’s operations, the Hospital System commenced this

action for a writ of mandamus, ordering the Secretary to docket,

assign to an ALJ, and decide its appeals within 90 days, as

required by the Medicare Act.               See 42 U.S.C. § 1395ff(d)(1)(A).

It also seeks a declaratory judgment that the Secretary’s “delay

in adjudication of Medicare appeals violates federal law.”

                                            5
       In   its    complaint,       the    Hospital   System    alleged    that   the

number of appeals to ALJs quintupled during the two years of

2012 and 2013, increasing from 92,000 to 460,000, and that the

ALJs’ workload increased by almost 300% from fiscal year 2012 to

fiscal year 2013.           It alleged that, as of February 2014, 480,000

appeals were awaiting assignment to ALJs.                      The Secretary does

not deny the existence of the backlog, nor its size, as the

figures alleged by the Hospital System are those published by

HHS.    Indeed, in her brief, the Secretary acknowledged that the

backlog has grown rapidly to more than 800,000 appeals and that,

with OMHA’s current staffing of ALJs, it would take over ten

years for the ALJs to dispose of those appeals.                    The allegations

of the parties do, however, attribute the backlog to different

causes.

       The Secretary asserts that the backlog is the result of an

increased         utilization       of      Medicare-covered       services;      the

additional        appeals    from      audits    conducted   under   the     Recovery

Audit Program instituted in 2010; and additional Medicaid State

Agency appeals of Medicare coverage denials for beneficiaries

enrolled in both Medicare and Medicaid.                  She notes that she has

been   unable      to   reduce    or      even   stabilize   the   backlog    because

congressional       funding      has    remained    relatively     stagnant   during

the last five years and additional ALJs therefore could not and

cannot be hired.         She states, however, that the President’s 2016

                                             6
budget proposes more than tripling the funding for OMHA and, in

addition,       proposes   new     processes      that    would    facilitate    the

resolution of appeals at earlier stages in the administrative

process.        Finally, the Secretary points out that Congress has

been aware of the existing backlog for some time, has recognized

the need for a legislative solution, and, indeed, is working on

a solution.

     Cape Fear Health System does not disagree completely, but

it contends that the backlog is mainly due to the Secretary’s

mismanagement of HHS resources.                The Hospital System points out

that,     while    the     agency    has       proposed    pilot    programs    for

alternative dispute resolution with respect to some types of

reimbursement, it has not made those programs available for the

types of reimbursement being claimed by the Hospital System.

Furthermore, the Hospital System contends that the increase in

appeals from audits conducted pursuant to the Recovery Audit

Program    is     attributable      to   the    perverse    incentives    of    that

program, which pays contractors contingency compensation based

on monies they recover in denying improper or excessive claims.

     Regardless of the cause, however, the parties agree, and

the district court found, that appeals have “skyrocketed” and

have “overwhelmed” the Medicare reimbursement process.

     The    district       court    granted      the     Secretary’s   motion     to

dismiss the Hospital System’s complaint under Federal Rule of

                                           7
Civil Procedure 12(b)(6), relying on two independent grounds for

doing so.     First, the court concluded that the Hospital System’s

complaint failed to state a plausible claim for a mandamus order

because (1) it failed to demonstrate a “clear and indisputable

right” to relief, as Congress did not grant the Hospital System

“an absolute right to an ALJ hearing . . . within the 90-day

timeframe,” and (2) it failed to demonstrate that the Secretary

has “a clear duty to provide such a hearing” within the 90-day

time    frame.      Second,      as   a    matter    of    discretion,    the    court

concluded that to grant mandamus relief would inappropriately

“intermeddle”       with   the    agency’s         problem-solving      efforts    and

would     fail     to   recognize         “HHS’s     comparative     institutional

advantage     in    crafting      a       solution    to    the   delays    in     the

adjudication       of   appeals.”           The    court    explained    that     “the

political branches are best-suited to alleviate OMHA’s crippling

delays.”     The court also noted in this regard that putting the

Hospital System “at the head of the queue,” where doing so would

simply move all others back one space and would produce no net

gain, should be avoided as a matter of equity.

        The district court also denied the Hospital System’s claim

for declaratory relief, reasoning that, because the Declaratory

Judgment Act does not supply a right of action in the absence of

a valid substantive claim, dismissal of the Hospital System’s



                                            8
declaratory judgment must necessarily follow dismissal of its

mandamus claim.

     Cape Fear Health System filed this appeal.


                                         II

     Mandamus is a “drastic” remedy that must be reserved for

“extraordinary situations” involving the performance of official

acts or duties.       Kerr v. U.S. Dist. Court for the N. Dist. of

Cal., 426 U.S. 394, 402 (1976).               Accordingly, to show that it is

entitled to mandamus relief, a plaintiff must show, among other

things,   that   it   has   a   “clear       and    indisputable    right   to   the

relief sought” and that the responding party has a “clear duty

to do the specific act requested.”                 United States ex rel. Rahman

v. Oncology Assocs., P.C., 198 F.3d 502, 511 (4th Cir. 1999).

     In this case, Cape Fear Health System contends that the

Medicare Act gives it a clear and indisputable right to have its

appeals   decided     within    90   days      and    that   it   imposes   on   the

Secretary a clear duty to accomplish that.                   In support of this

contention, it emphasizes the mandatory language of the Act,

which provides that an ALJ “shall conduct and conclude a hearing

. . . and render a decision on such hearing by not later than

the end of the 90-day period beginning on the date a request for

hearing has been timely filed.”                    42 U.S.C. § 1395ff(d)(1)(A)

(emphasis added).        It also points to the Chief ALJ’s recent


                                         9
testimony before a congressional committee that the deadlines

for ALJs’ decisions were set and OMHA was created to “reduce the

average . . . waiting time for a hearing decision” that occurred

under the prior scheme.       It argues that the escalation mechanism

in the Medicare Act -- a mechanism whereby healthcare providers

can bypass ALJ review if they are delayed and proceed to the

Departmental Appeals Board and ultimately to the courts, see id.

§ 1395ff(d)(3) -- does not diminish its right to an ALJ hearing

because escalation is not mandatory but may be employed at the

“discretion of the appellant.”           And, in any event, it maintains

that electing to bypass the ALJ hearing would result in its

foregoing its right to create an administrative record at the

ALJ   hearing,    thus   forcing    it   to    make     a    “terrible     choice”:

either “waive its right to due process” (i.e., to make a record)

or “suffer interminably until the Secretary feels like affording

[it] a hearing.”

      The Secretary, by contrast, maintains that “the Medicare

statute does not confer on [the Hospital System] a right to a

hearing within 90 days that is enforceable through mandamus,”

emphasizing that the statute provides that “the consequence of

failing    to   adjudicate   an    appeal     within    90    days   is    that   the

provider may escalate that appeal to the [Departmental Appeals

Board].”        The   Secretary     argues      that,        while   the    statute

establishes a time frame for decisions, “it also recognizes that

                                      10
the time frame may not be satisfied and provides persons seeking

review      with    a    specific       avenue      of     relief.”          Because,       as    the

Secretary         argues,       such     escalation         “is       the      remedy      Congress

provided,”         the        Hospital      System         “cannot         show        indisputable

entitlement         to    any       other,”      regardless        of     whether        escalation

adequately ensures the particular administrative review that the

Hospital System seeks.

       We    begin       by    noting      that     the    process         that       Congress    has

provided for obtaining Medicare reimbursement and administrative

review of reimbursement decisions is comprehensive and specific

-- a “coherent regulatory scheme,” Gustafson v. Alloyd Co., 513

U.S. 561, 569 (1995) -- which begins with the submission of a

claim       for    reimbursement,           continues        through         a        detailed    and

multistep         administrative           process,         and        concludes         with     the

provision for judicial review.                          Accordingly, understanding the

full    process         is     necessary      to    address        the      Hospital       System’s

argument      that       a     court    should          enforce       a   specific,        discrete

element of the process through a writ of mandamus.

       To obtain reimbursement for Medicare services, a healthcare

provider      must,       in    the    first       instance,          submit      a    claim     to   a

Medicare          Administrative           Contractor,            a       private        contractor

retained      by    HHS        to   make    an     initial        determination           regarding

whether and in what amount the claim should be paid.                                           See 42

U.S.C. §§ 1395ff(a), 1395kk-1(a).                           That determination by the

                                                   11
Medicare      Administrative         Contractor         may,    under     a    program      that

Congress established in 2010, be audited by a different third-

party     government         contractor,          known        as    a    Recovery         Audit

Contractor.       See id. § 1395ddd(h)(3).                      Congress created that

audit     program    to      serve      “the       purpose          of    . . .     recouping

overpayments,”       and        it     incentivized             the       Recovery         Audit

Contractors by paying them “on a contingent basis for collecting

overpayments.”          Id.     § 1395ddd(h)(1).                    Healthcare       providers

wishing to challenge these initial claim determinations by the

Medicare      Administrative          Contractor          or        the   Recovery         Audit

Contractor must pursue a comprehensive, four-step administrative

review process before seeking review in court.

      At the first step, a healthcare provider dissatisfied with

either the initial determination or the results of an audit may

seek a redetermination from the original Medicare Administrative

Contractor.      See 42 U.S.C. § 1395ff(a)(3).                       At the second step,

if    the      healthcare       provider           is     dissatisfied              with     the

redetermination,        it    may     seek   reconsideration              by    a    Qualified

Independent Contractor (“QIC”), another third-party government

contractor retained to independently “review the evidence and

findings upon which the [previous determination was] based.”                                  42

C.F.R. § 405.968(a)(1); 42 U.S.C. § 1395ff(c).                            In doing so, the

QIC     may   receive     and    consider         “any    additional           evidence      the

parties submit or that the QIC obtains on its own.”                                 42 C.F.R.

                                             12
§ 405.968(a)(1).        At the third step, the healthcare provider may

challenge the QIC’s decision by requesting a hearing before an

ALJ.     See 42 U.S.C. § 1395ff(d)(1); 42 C.F.R. § 405.1000.                     The

ALJ hearing process is administered by OMHA, a division within

HHS that is independent of and funded through an appropriation

separate from the division that oversees the contractors’ review

during the first two steps of the administrative review process.

See Medicare Prescription Drug, Improvement, and Modernization

Act of 2003, Pub. L. No. 108-173, § 931, 117 Stat. 2066, 2396-

99;    Statement   of   Organization,       Functions,     and   Delegations      of

Authority, 70 Fed. Reg. 36386-04 (June 23, 2005).                    At the fourth

step, the healthcare provider may appeal the ALJ’s decision to

the    Departmental     Appeals   Board     for    de   novo   review.     See    42

U.S.C.    § 1395ff(d)(2).          The      Departmental       Appeals     Board’s

decision becomes the final decision of the Secretary, which may

then be reviewed in court.         See id. § 1395ff(b)(1)(A); 42 C.F.R.

§ 405.1130.

       The Medicare Act establishes deadlines for each step in the

administrative     review    process      and     specifies    the    consequences

when such deadlines are not met.            The Act directs that the first

two steps of administrative review be completed by the Medicare

Administrative Contractor and the QIC, respectively, within 60

days. 42 U.S.C. §§ 1395ff(a)(3)(C)(ii), 1395ff(c)(3)(C)(i).                       If

the QIC fails to meet this deadline, the healthcare provider may

                                       13
bypass    the   QIC    determination        and    “escalate”       the    process       by

requesting a hearing before an ALJ, even though a decision by

the QIC is ordinarily a prerequisite to such a hearing.                               Id.

§ 1395ff(c)(3)(C)(ii).           With respect to the adjudication by an

ALJ, the Medicare Act provides that an ALJ “shall conduct and

conclude a hearing on a decision of a [QIC] . . . and render a

decision on such hearing by not later than the end of the 90-day

period beginning on the date a request for hearing has been

timely    filed.”        Id.    § 1395ff(d)(1)(A);            see   also       42   C.F.R.

§ 405.1016(c) (providing a 180-day deadline if the appeal had

been escalated past the QIC level).                 If the ALJ does not render

a   decision    before    the    deadline,        the   healthcare     provider        may

bypass the ALJ and again escalate the process by “request[ing] a

review by the Departmental Appeals Board . . . , notwithstanding

any requirements for a hearing for purposes of the party’s right

to such a review.”             42 U.S.C. § 1395ff(d)(3)(A).                Finally, if

the   Departmental       Appeals    Board    does       not   conclude     its      review

within 90 days, id. § 1395ff(d)(2)(A), or within 180 days if the

appeal    had   been    escalated     past    the       ALJ   level,      42    C.F.R.    §

405.1100(d), the healthcare provider “may seek judicial review

[in   a   United       States     district    court],         notwithstanding         any

requirements for a hearing for purposes of the party's right to

such judicial review,” 42 U.S.C. § 1395ff(d)(3)(B); see also 42

C.F.R. § 405.1132.

                                        14
     In sum, in order to exhaust the administrative process for

reimbursement of Medicare services, a healthcare provider must

present     the    claim       in     the    first     instance      to    a    Medicare

Administrative Contractor and thereafter engage the process of

review and appeal set forth in § 1395ff.                         While the statute

imposes deadlines for completion at each step of the process, it

also anticipates that the deadlines may not be met and thus

gives the healthcare provider the option of bypassing each step

and escalating the claim to the next level, ultimately reaching

judicial    review      by   a      United   States     district     court      within    a

relatively prompt time.

     The order that Cape Fear Health System seeks would have the

judiciary    enforce      an     isolated      deadline    and    thereby       impose    a

process    not    contemplated         by    the    Medicare   Act    --    indeed,      in

conflict with it.         Instead of having a delayed claim continue by

escalation through the steps of the administrative process and

ultimately to the courts, the Hospital System would have a court

order the Secretary to address its claims without escalation, to

the detriment of all other appeals then pending.                          The precedent

established by this judicial intrusion would surely invite every

other delayed claimant into the courts, converting the agency

process    into    a    hybrid       process       involving   judicial        action    in

medias res.       There is no evidence that Congress ever entertained

such an idea.          More importantly, the Hospital System’s argument

                                             15
that the Secretary must provide an ALJ hearing within 90 days or

risk       judicial    intervention     and      supervision    is   grounded       in    a

myopic reading of the Medicare Act.

       The Medicare Act directs the Secretary in mandatory terms

-- as the Hospital System stresses -- to comply with a 90-day

deadline for ALJ decisionmaking:

       Except [when waived], an administrative law judge
       shall conduct and conclude a hearing on a decision of
       a qualified independent contractor under subsection
       (c) of this section and render a decision on such
       hearing by not later than the end of the 90-day period
       beginning on the date a request for hearing has been
       timely filed.

42    U.S.C.    §     1395ff(d)(1)(A)       (emphasis   added).         But   the   next

question is the more important one for addressing the Hospital

System’s argument -- what consequences follow if the deadline is

not met?       Congress answered this explicitly, providing:

       In the case of a failure by an administrative law
       judge to render a decision by the end of the period
       described in paragraph (1), the party requesting the
       hearing may request a review by the Departmental
       Appeals Board of the Department of Health and Human
       Services, notwithstanding any requirements for a
       hearing for purposes of the party’s right to such a
       review.

Id.    §    1395ff(d)(3)(A).         Consequently,       instead     of    creating      a

right to go to court to enforce the 90-day deadline, Congress

specifically gave the healthcare provider a choice of either

waiting       for     the   ALJ   hearing     beyond    the    90-day     deadline       or

continuing within the administrative process by escalation to



                                            16
the    next     level      of    review.           The    Hospital      System’s      argument

focuses on only the provision creating the 90-day time frame and

fails     to       account       for       its     context      in      the    comprehensive

administrative process.                Our reading of the statute cannot be so

restricted.            See King v. Burwell, 135 S. Ct. 2480, 2492 (2015)

(noting        that      it      is    a     “fundamental          canon       of    statutory

construction that the words of a statute must be read in their

context and with a view to their place in the overall statutory

scheme” (quoting Util. Air Regulatory Grp. v. EPA, 134 S. Ct.

2427, 2441 (2014) (internal quotation marks omitted))); FDA v.

Brown    &     Williamson        Tobacco         Corp.,   529    U.S.    120,       132    (2000)

(noting that “a reviewing court should not confine itself to

examining a particular statutory provision in isolation”).

       Thus, when taken in context, § 1395ff(d) must be understood

to    provide      a    90-day      deadline       for    an   ALJ’s    decision,         thereby

encouraging the process to proceed expeditiously, and to give

the healthcare provider two options if the deadline is not met:

bypassing       the       ALJ       hearing       and     obtaining        review         by   the

Departmental Appeals Board, or waiting beyond the 90-day period

for the ALJ to conduct a hearing and render a decision.                                         In

giving       the        healthcare         provider        these       options,       Congress

anticipated        that       the     90-day      deadline      might    not    be    met      and

provided       its      chosen      remedy.         But    Congress      clearly      did      not

authorize healthcare providers to go to court at this stage of

                                                  17
the administrative process.                Rather, it required, before going

to court, that the healthcare provider obtain a final decision

of the Secretary -- the decision of the Departmental Appeals

Board.     See 42 U.S.C. §§ 1395ff(b)(1)(A), 1395ff(d)(2)(A); see

also Heckler v. Ringer, 466 U.S. 602, 605-06 (1984).                                Only if

the Departmental Appeals Board also fails to meet its deadline

in reviewing the healthcare provider’s claim can the healthcare

provider, again in a similar manner, bypass that level of review

and proceed to court, all within a relatively expeditious time

frame.    See id. §§ 1395ff(d)(2)(A), 1395ff(d)(3)(B).

       The Hospital System argues that this interpretation of the

administrative         process     is    unreasonable        as    it   results       in     a

process    that       provides     it    the    “terrible        choice”     of    deciding

whether    to       “waive   its   right       to   due   process”      or    to    “suffer

interminably until the Secretary feels like affording [it] a

hearing.”       Its due process argument is based on its presumption

that, in bypassing the ALJ hearing, it would be denying itself

the opportunity to create a full administrative record at the

ALJ    hearing,       thereby      leaving      itself     without      a    record        for

judicial review.         See 42 U.S.C. § 1395ff(b)(1)(A) (incorporating

42    U.S.C.    §    405(g),     which     requires       that    judicial        review    be

conducted on the administrative record).

       The Medicare Act, however, does not support the Hospital

System’s       presumptions.         The    implementing          regulations       provide

                                               18
that a healthcare provider may submit “any” evidence it wishes

at the QIC redetermination stage, an earlier stage at which the

Hospital        System      has      not     claimed           delay.          42      C.F.R.

§ 405.968(a)(1);          42    U.S.C.      § 1395ff(c).               Thus,       healthcare

providers could, in anticipation of delays at the ALJ stage and

beyond,    create      their    record      at     the   QIC    stage    and       thereafter

escalate their claims to the courts within a period of months.

See 42 U.S.C. § 1395ff(d)(3).                    Moreover, it is not clear that

the   Hospital     System       would      have,    as   it     assumes,       a    right    to

introduce new evidence during an ALJ hearing even if it had the

benefit of the hearing.              See id. § 1395ff(b)(3) (providing that

healthcare providers “may not introduce evidence in any appeal

under this section that was not presented at the reconsideration

conducted by the [QIC] . . . unless there is good cause”).

      Properly         understood,          therefore,           the     Medicare           Act

establishes        a      multilevel,        “coherent          regulatory           scheme,”

Gustafson,       513     U.S.   at    569,       which    authorizes       a       healthcare

provider to bypass levels of review that are not completed in

accordance with specified time frames and, at the same time, to

create a record that it can ultimately use for judicial review.

While     the    Act      gives      the    Hospital       System       the        clear    and

indisputable right to this administrative process, it does not

give it a clear and indisputable right to adjudication of its

appeals before an ALJ within 90 days.

                                             19
       Moreover, were we to interfere at the ALJ stage, as the

Hospital   System     would     have    us    do,   we    would    be     undermining

important separation-of-powers principles, as the district court

recognized    in    denying      the    Hospital    System’s       request     for    a

mandamus     order.       In     the    Medicare     Act,       Congress     required

healthcare        providers       to     engage      an         Executive      Branch

administrative        process      in      making        claims     for      Medicare

reimbursement, thus precluding court suits in the first instance

that would bypass the process.                But, in doing so, it did not

deny healthcare providers judicial review; indeed, it guaranteed

such    review,    but    only     after      the   Secretary       is     given     the

opportunity to grant or deny the claims in accordance with the

specified process.

       A writ of mandamus, as requested by the Hospital System,

would have courts interrupt the specified administrative process

and cross the lines of authority created by statute.                         Even if

the    backlog     were    fully       attributable        to     the     Secretary’s

mismanagement, as the Hospital System maintains, our “respect

for the autonomy and comparative institutional advantage of the

executive branch” must make us mighty “slow to assume command

over an agency’s choice of priorities.”                  In re Barr Labs., Inc.,

930 F.2d 72, 74 (D.C. Cir. 1991).                   And if the backlog were

attributable to Congress’ failure to fund the program more fully



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or    otherwise      to    provide    a     legislative        solution,     it   would

likewise be a problem for Congress, not the courts, to address.

      Moreover, we have no reason to believe that any judicial

intervention into HHS’s administrative process, as urged by the

Hospital System, would improve anything.                       The courts surely do

not     have    greater       competence         to    administer      the     Medicare

reimbursement claims process than does HHS.                       And, in addition,

judicial intervention as requested by the Hospital System would

simply put each of its claims “at the head of the queue,” moving

“all others back one space and produc[ing] no net gain.”                          In re

Barr Labs., 930 F.2d at 75.               We thus share the district court’s

belief that “the political branches are best-suited to alleviate

OMHA’s crippling delays.”

      One can hardly dispute that HHS’s procedural arteries are

seriously clogged and that its backlog of ten years is risking

its procedural vitality.             Put simply, its administrative process

is in grave condition.               While the Secretary laments this and

Congress recognizes it, both are presently attempting to revive

the process.         As bleak as these circumstances appear to be,

however, we are unpersuaded that Article III treatment of the

ailing    Article     II   patient     in   the       manner   the   Hospital     System

urges    is    the   answer   or,    indeed,      even    possible     or    desirable.

Despite the legitimacy of the Hospital System’s frustration, we



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are convinced that the district court acted correctly in leaving

treatment to the political branches.

       For    the    reasons   given,    we    affirm       the     district    court’s

decision to dismiss the Hospital System’s claim for a writ of

mandamus.


                                         III

       Cape Fear Health System also sought “a declaratory judgment

in   its     favor   that   HHS’s    delay     in    adjudication         of   Medicare

appeals violates federal law.”                Because we affirm the district

court’s conclusion that the Hospital System failed to state a

claim upon which mandamus relief could be granted, it follows

that we must also affirm the district court’s dismissal of the

Hospital     System’s    declaratory      judgment         claim.        See   Medtronic

Inc.   v.    Mirowski    Family     Ventures,       LLC,    134     S.   Ct.   843,   849

(2014) (recognizing that the Declaratory Judgment Act is only

“procedural” and does not create “substantive rights” (internal

quotation marks and citations omitted)).

                                     *   *      *

       The judgment of the district court is

                                                                               AFFIRMED.




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