Reg'l Home Health Care, Inc. v. Becerra

19 F.4th 1043

REGIONAL HOME HEALTH CARE, INC., Plaintiff - Appellant

v.Xavier BECERRA, Secretary of the United States Department of Health and Human Services ;¹ NCI Information Systems, Inc., an NCI Company, doing business as AdvanceMed Corporation; Does 1-10, Defendants - Appellees

No. 20-3239

United States Court of Appeals, Eighth Circuit.

Submitted: September 22, 2021

Filed: December 6, 2021

Michael John Khouri, Khouri Law Firm, Irvine, CA, Benjamin R. Merrill, Brown & Winick, Des Moines, IA, for Plaintiff-Appellant.

David Locksley D. Faith, II, William C. Purdy, Assistant U.S. Attorney, U.S. Attorney's Office, Des Moines, IA, Jaynie Lilley, U.S. Department of Justice, Civil Division, Abby Wright, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Defendant-Appellee Xavier Becerra, Secretary of the United States Department of Health and Human Services.

Matthew Xavier Etchemendy, Vinson & Elkins, Washington, DC, David Locksley D. Faith, II, William C. Purdy, Assistant U.S. Attorney, U.S. Attorney's Office, Des Moines, IA, for Defendant-Appellee NCI Information Systems, Inc., an NCI Company, doing business as AdvanceMed Corporation.

Before SHEPHERD, WOLLMAN, and KOBES, Circuit Judges.

WOLLMAN, Circuit Judge.

Regional Home Health Care, Inc. (Regional), was certified to receive reimbursement for services under the Medicare Act, 42 U.S.C. § 1395, et seq. , and derived almost all of its revenue from reimbursement for home health care services rendered to Medicare patients in rural Lee County, Iowa. The Centers for Medicare and Medicaid Services (CMS) suspended Medicare payments to Regional on January 31, 2018, during an investigation into whether Regional had been overpaid. Regional suffered dire financial hardship due to the suspension and closed its business by May 2018.

The suspension was lifted in July 2018, upon completion of the investigation. CMS determined that it had overpaid Regional more than $1.26 million, which CMS demanded be repaid. Regional did not challenge this overpayment determination in the administrative appeals process set forth in the Medicare Act and related regulations. See 42 U.S.C. § 1395ff. Regional instead filed suit in June 2019 against the Secretary of the Department of Health and Human Services and Medicare contractor NCI Information Systems, Inc. (AdvanceMed).²

Regional sought a declaration that the defendants’ procedures "in suspending Regional's Medicare payments and forcing Regional out of business" without notice, a hearing, or an opportunity to appeal violated its Fifth Amendment rights to procedural and substantive due process. The district court³ dismissed Regional's declaratory judgment claims for lack of subject matter jurisdiction.

We conclude that no "actual controversy" exists between Regional and the defendants within the meaning of the Declaratory Judgment Act. See 28 U.S.C. § 2201(a). Having abandoned any claim for damages, Regional seeks nothing more than a judicial pronouncement that its constitutional rights were violated. This lawsuit thus does not present "a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." See Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941).

In all civil litigation, the judicial decree is not the end but the means. At the end of the rainbow lies not a judgment, but some action (or cessation of action) by the defendant that the judgment produces—the payment of damages, or some specific performance, or the termination of some conduct. Redress is sought through the court, but from the defendant. This is no less true of a declaratory judgment suit than of any other action. The real value of the judicial pronouncement—what makes it a proper judicial resolution of a "case or controversy" rather than an advisory opinion—is the

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