SAMUEL P. KING, District Judge:
Plaintiff-appellant made a claim to reimbursements for the cost of services provided between January 1, 1967, and January 31, 1968, under the Medicare provisions of the Social Security Act, 42 U.S.C. § 1395 et seq. (hereinafter referred to as the Medicare Act). On April 12, 1972, the district court dismissed the case for the second time,
In this appeal, Appellant raises three issues: (1) whether the district court has jurisdiction to review determinations of the reasonable costs to be reimbursed to a provider of services under the Medicare Act;
I. Jurisdiction to Review:
Although the Medicare Act itself contains no express provision affording judicial review of the Secretary's determinations as to the reasonable costs reimbursed to a provider of services, Appellant argues that the Administrative Procedure Act (hereinafter referred to as "A.P.A."), 5 U.S.C. § 701 et seq., gives the district court the right to review such determinations. We have held that the A.P.A. provides jurisdiction for review of agency action in district courts unless such jurisdiction is otherwise barred. State of Washington v. Udall, 417 F.2d 1310, 1319-20 (9th Cir. 1969); see also C. Byse & J. Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and "Nonstatutory" Judicial Review of Federal Administrative Action, 81 Harv.L.Rev. 308, 326-31 (1967). The only possible bars to jurisdiction to review in this instance would appear to be those embodied in the A.P.A. itself, i. e., that the agency action in question is committed by law to the discretion of the agency, or that there is clear and convincing evidence of congressional intent to preclude review expressed in the statute itself or in its legislative history. 5 U.S.C. §§ 701(a)(1), (2); Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).
The presence of statutory guidelines for reasonable cost determinations in 42 U.S.C. § 1395x(v)(1) coupled with the § 1395g mandate that the Secretary pay providers for services furnished indicates that decisions concerning reimbursable costs were not intended to be wholly within the discretion of the Social Security Administration.
We have found no clear and convincing evidence in the Medicare Act itself or in its legislative history
The second sentence might appear to bar judicial review except as provided in the Medicare Act itself, and thus to bar review under the A.P.A. This interpretation of the second sentence was rejected by the Second Circuit in a series of cases holding that § 405(h) bars judicial review under the A.P.A. only where a litigant seeks to by-pass procedures provided by
In Stuckey v. Weinberger, 488 F.2d 904 (9th Cir. 1973) we adopted this interpretation of the second sentence of § 405(h) by necessary implication. We declined to accept the full sweep of the Cappadora holding that all agency orders denying reopening were reviewable under the A.P.A., but we did so only because we found in the first sentence of § 405(h) an expression of congressional intention that agency decisions (including orders denying reopening) were not subject to judicial review if in the particular circumstances review would be barred by accepted principles of res judicata. Had we viewed the second sentence of § 405(h) as barring A.P.A. review in any event, discussion of res judicata would have been unnecessary. The opinion in Stuckey expressly states that where an agency decision is not final under res judicata principles, judicial review is available. Two such cases are identified. 488 F.2d at 911. Both involve orders denying reopening. Since we held in Filice v. Celebrezze, 9 Cir., 319 F.2d 443, 445-46, that such orders are not reviewable under § 405(g) (the only express provision for review under the Social Security Act), Stuckey necessarily means that such agency decisions are reviewable under the A.P.A. despite the second sentence in § 405(h).
The first sentence in § 405(h) as interpreted in Stuckey does not bar review in the present case because Appellant had no prior opportunity to seek judicial review of the Secretary's denial of his claim for reimbursement. The second sentence does not bar review because none of the specific review provisions of the Medicare Act are applicable to such determinations.
Since a reimbursable cost determination is not made on "the record of agency hearing provided by statute," such a determination is not reviewable under § 706(2)(E) of A.P.A. for insufficiency
II. Adequacy of Administrative Review:
Appellant next urges that the administrative review of his claim conducted by the Blue Cross Association Committee was inadequate and unconstitutional in that it was not impartial and did not have sufficient adjudicatory safeguards. The question whether the administrative determination in this case was made in compliance with the Medicare Act and the Constitution was not suitably raised below and is not properly before this Court.
Plaintiff did not at any time prior to entry of the District Court's judgment on April 19, 1972, seek to challenge the administrative procedure of reviewing his claims on the ground it violated constitutional rights. The District Court in its Memorandum Opinion stated:
It is a well-established principle that in most instances an appellant may not present arguments in the Court of Appeals that it did not properly raise in the court below. See Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037 (1941); United States v. Tanks, 464 F.2d 547 (9th Cir. 1972); Eason v. Dickson, 390 F.2d 585 (9th Cir. 1968); Stephens v. Arrow Lumber Co., 354 F.2d 732 (9th Cir. 1966); Wagner v. Retail Credit Co., 338 F.2d 598 (7th Cir. 1964); Partenweederei, Ms Belgrano v. Weigel, 313 F.2d 423 (9th Cir. 1962). Plaintiff has not presented persuasive arguments for making an exception to this rule.
III. Violation of Local Rule 7(a):
Appellant alleges finally that the District Court's Findings of Fact, Conclusions of Law, and Judgment were erroneous because Local Rule 7(a) was violated. The alleged violation is that the District Court failed to wait five days after submission of proposed findings to sign and file said documents or otherwise provide Plaintiff an opportunity to object as to the form of said findings. Because we are remanding this case to the District Court, the issue whether a violation of Local Rule 7(a) occurred is now moot.
Accordingly, the District Court's ruling that it had no jurisdiction to review Appellant's claim is reversed, and we remand the case for further proceedings on any issues raised by the Plaintiff which are within the scope of judicial review provided by the A.P.A.
Defendants' motion to dismiss the complaint on the grounds that the District Court lacked jurisdiction over the subject matter and that plaintiff had failed to state a claim upon which relief could be given was granted.
On appeal, in Bumb v. Hospital Service of Southern California, 440 F.2d 1077 (9th Cir. 1971), this Court remanded the case, ruling that the jurisdictional question was unclear and that the filing of the suit was in any event premature if there were remaining administrative remedies available to the plaintiff.
The District Court upon remand, ordered the Plaintiff to file a memorandum discussing whether the case should be dismissed for failure to exhaust administrative remedies or if no remedies existed, whether the court should affirm its prior dismissal. Plaintiff failed to submit the ordered brief and the District Court on its own motion entered an order to show cause why the action should not be dismissed for failure to prosecute. After a hearing on this matter, the court dismissed the action on March 3, 1972.
On March 21, 1972, Plaintiff moved to vacate the judgment of dismissal. Hearing on the motion was held on April 10, 1972, at which time all parties agreed that administrative remedies had been exhausted. On April 12, 1972, the District Court again dismissed the case.
S.Rep.No.404, 89th Cong. 1st Sess. 54-55 (1965). U.S.Code Cong. & Admin.News, p. 1995. This statement applies only to the mode of review for those questions made expressly reviewable by § 1395ff(c). Appellant's claim is not one governed by § 1395ff(c). See note 8, infra.