In Lifestar Ambulance v. United States, No 02-00127-CV-CDL, 4/16/04, the 11th Circuit overturned the District Court's determination that it had mandamus jurisdiction to order HHS to follow the Balanced Budget Act of 1997 and implement changes in the remuneration rates for ambulance services.
The Circuit Court following the logic of Shalala v. Illinois Council on Long Term Care, 120 U.S. 1084 (2000) insisted that it is the right to request relief rather than any practical expectation of getting it that gives right to the exhaustion of remedies requirement that mandates that all issues under Medicare be first brought before the agency before seeking judicial review. Mandamus jurisdiction (i.e. telling the government to obey the law) is only appropriate where 1) the defendant has a clear nondiscretionary duty to the plaintiff and 2) the plaintiff has exhausted all other avenues of relief.
The Court held that "Illinois Council teaches the importance of distinguishing between administrative relief and an administrative remedy." In otherwords a "remedy" can be non-remedial even if there is no possibility of relief. It is frequently like telling a death penalty recipient that there is a little good news and bad news. The good news is that you have a right to appeal, the bad news is that you will be dead when the decision is rendered. One wonders if the intended effect of this line of cases is to reduce the case load for Federal Judges, who after all frequently do not like trying cases or hearing appeals. It doesn't appear to do much for substantive justice. When HHS appealed they did implement a change in the rates mandated by the BBA, so presumably this action may expose the plaintiffs to a recoupment action by the Government of many many millions of dollars. The case can be found at http://www.ca11.uscourts.gov/opinions/ops/200311392.pdf
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