                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       October 4, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
ALLCARE HOSPICE, INC., f/k/a
Comforting Care Hospice, Inc.,

             Plaintiff-Appellant,
                                                          No. 12-7081
v.                                               (D.C. No. 6:11-CV-00365-FHS)
                                                          (E.D. Okla.)
KATHLEEN SEBELIUS, Secretary,
United States Department of Health and
Human Services,

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before MATHESON, Circuit Judge, PORFILIO, Senior Circuit Judge, and
O’BRIEN, Circuit Judge.


      Plaintiff AllCare Hospice, Inc. (AllCare) provides hospice services to

terminally ill patients. AllCare receives reimbursement from the Secretary of Health

and Human Services (Secretary) for hospice care provided to Medicare recipients.

Congress has set an annual limit, or cap, on aggregate reimbursement for hospice

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
services provided to these Medicare recipients. In the event that the amount

reimbursed to a provider such as AllCare exceeds the cap, the Secretary is entitled to

seek repayment from the provider.

      Between April 4, 2007 and December 7, 2010, the Secretary, acting through a

fiscal intermediary, issued several overpayment notices to AllCare seeking repayment

of amounts allegedly overpaid during the years 2003 through 2009. AllCare did not

immediately contest these overpayment notices, but instead made arrangements to

pay the amounts due. On July 21, 2011, however, AllCare filed appeals with the

Provider Reimbursement Review Board (PRRB) from each of the notices in question,

challenging the Secretary’s regulation used to calculate the amounts due.

      The PRRB dismissed AllCare’s appeals because they had not been filed within

the prescribed 180-day period for appeal, see 42 U.S.C. § 1395oo(a)(3) (establishing

180-day deadline for appeal to PRRB), and because AllCare had failed to show good

cause to receive an extension of time for appeal. AllCare then sought review of the

PRRB’s decision in district court. The district court dismissed AllCare’s petition for

review, reasoning that the PRRB’s dismissal of AllCare’s appeal and denial of a good

cause extension was not a “final decision” that was subject to judicial review and the

decision whether to grant such an extension was in any event committed to agency

discretion and therefore unreviewable. Given AllCare’s failure to timely exhaust its

claims before the PRRB, the district court determined it lacked jurisdiction to address

the merits of AllCare’s claims. Nor was jurisdiction available under the federal


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question statute, 28 U.S.C. § 1331, the so-called Bowen exception, the Kyne doctrine,

or through a petition for writ of mandamus. Finally, AllCare lacked standing to

assert one of its arguments—a challenge to the Secretary’s regulation concerning

expedited judicial review.

      “Our review of the district court’s dismissal for lack of subject matter

jurisdiction is de novo,” Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016

(10th Cir. 2013) (internal quotation marks omitted), as is our review of a dismissal

based on lack of standing, Petrella v. Brownback, 697 F.3d 1285, 1292 (10th Cir.

2012). On appeal, AllCare raises the following arguments: (1) the district court

erred in finding it lacked subject-matter jurisdiction to review AllCare’s claims;

(2) the district court erred in its determination concerning AllCare’s standing; and

(3) jurisdiction over its claims was available under the Mandamus Act, 28 U.S.C.

§ 1361. Having carefully reviewed the briefs, the record, and the applicable law, we

affirm the district court’s judgment for substantially the reasons stated in its

well-reasoned Order and Opinion of October 23, 2012.


                                                 Entered for the Court


                                                 John C. Porfilio
                                                 Senior Circuit Judge




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12-7081, AllCare Hospice v. Sebelius

O’BRIEN, J., concurring in the result


         AllCare is not entitled to judicial relief from the Board’s decision. My only

concern with the district court’s decision is the dismissal of Count Five for lack of

jurisdiction (it alleged the Board arbitrarily and capriciously denied its motion for an

extension of time to file its claim).

         AllCare sought a good cause extension of time to file the subject claim. Such

an extension is permitted by regulation, 42 C.F.R. § 405.1836, but not expressly

permitted by statute. The same regulation, 42 C.F.R. § 405.1836(e)(4), insulates the

Board’s good cause determination from judicial review.

         Concern arises from an immigration case, Kucana v. Holder, 558 U.S. 233

(2010). What I take away from that decision is that Congress can insulate agency

decisions from judicial review but an agency cannot, without congressional

authorization, do the same. Whether such authorization exists is, at bottom, a matter

of statutory construction.

         The Medicare statute permits judicial review of “any final decision of the

Board.” 42 U.S.C. § 1395oo(f)(1). The district court determined “final decision of

the Board” to be an ambiguous phrase and afforded Chevron1 deference to

regulations defining final decision and specifying the type of decisions subject to


1
    Chevron U.S.A., Inc. v. Nat’l Res. Def. Council, 467 U.S. 837 (1984).
judicial review. It did not mention Kucana, probably because the case was not

argued (it is not mentioned in AllCare’s filings in this Court).

      The district court’s dismissal of Court Five for lack of jurisdiction may be

correct even though the Kucana decision was not considered. In any event, the Board

was not arbitrary and capricious in refusing to extend the filing date beyond the 180

days provided by the statutes. Accordingly, I readily vote to affirm, but am unwilling

to do so “for substantially the reasons stated in [the district court’s] well-reasoned

Order and Opinion of October 23, 2012.”




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