OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.,
PETITIONERS V. MICHIGAN ACADEMY OF FAMILY PHYSICIANS, ET AL.

   No. 85-225

   In the Supreme Court of the United States

   October Term, 1985

   On Writ of Certiorari to the United States Court of Appeals for the
Sixth Circuit

   Reply Brief for the Petitioners

   Respondents contend that the district court had jurisdiction in
this case to review one aspect of the determination by the carrier of
the amount of benefits payable for certain physicians' services under
the Part B Medicare Program.  However, as we have explained in our
opening brief, judicial review of such matters is foreclosed by two
separate provisions of the Social Security Act, 42 U.S.C. 1395ff and
405(h).  Respondent's arguments for avoiding these statutory
preclusions of review already have been rejected by this Court in
United States v. Erika, Inc., 456 U.S. 201 (1982), and Heckler v.
Ringer, No. 82-1772 (May 14, 1984).

   1. Respondents argue (Br. 23-32) that 42 U.S.C. 1395ff does not
foreclose review of "statutory" questions arising in connection with
the determination of the amount of benefits payable under the Part B
Program.  They contend that Section 1395ff bars judicial review only
of those issues (essentially factual in nature) that are within the
authority of the carrier hearing officer to resolve in the "fair
hearing" required by 42 U.S.C. 1395u(b)(3)(C), and that a court
therefore may exercise jurisdiction under 28 U.S.C. 1331 to consider
legal issues relating to the carrier's benefit determinations under
the Part B Medicare Program.  However, as respondents appear to
concede (Br. 32-33), these very arguments were squarely presented and
unanimously rejected in Erika.

   a. In Erika, the plaintiff challenged the carrier's calculation of
the prevailing charge for particular Part B services.  That prevailing
charge, which places a ceiling on the amount of benefits that may be
paid for covered services (42 U.S.C. 1395u(b)(3);  42 C.F.R. 405.502;
see Pet. Br. 6), is to be established at the level that "would cover
75 percent of the customary charges made for similar services in the
same locality during the last preceding calendar year" (42 U.S.C.
1395u(b)(3)).  In Erika, the plaintiff contended that the carrier's
calculation of the prevailing charge level as of one fixed date in the
preceding calendar year, without taking into account subsequent price
increases, violated the requirement in the language just quoted that
the prevailing charge level reflect the customary charges made
"during" the preceding year.  The Court of Claims held that it had
jurisdiction to consider this "statutory" challenge to the carrier's
method of determining the amount of benefits (Erika, Inc. v. United
States, 634 F.2d 580, 585-588 (Ct. Cl. 1980));  concluded that the
carrier's approach was inconsistent with the statute (id. at 588-589);
 and remanded the case to the carrier to recalculate the prevailing
charge level in a manner consistent with the court's interpretation of
42 U.S.C. 1395u(b)(3) (634 F.2d at 589, 591).  See 456 U.S. at
205-206.  This Court, however, unanimously reversed, holding that 42
U.S.C. 1395ff completely barred the Court of Claims from exercising
jurisdiction in the case.  456 U.S. at 206-211.

   Like the plaintiff in Erika, respondents challenge the carrier's
determination of the prevailing charge level that establishes a
ceiling on the amount of benefits payable for particular Part B
services.  The only difference is that respondents contend that the
carrier's approach is inconsistent with the statutory requirement that
the services on the basis of which the prevailing charge is calculated
be "similar," while the plaintiff in Erika argued that the carrier's
determination was inconsistent with the requirement that such similar
services have been rendered "during" the preceding calendar year.
This difference has no bearing on the availability of judicial review,
and Erika therefore controls here.

   b. Moreover, the arguments presented to this Court in Erika were
precisely those that respondents now advance in this case.  The
respondent in Erika argued that Section 1395ff does not bar judicial
review of "statutory" challenges to "administrative actions which
might have an effect on the benefit determinations" (Erika Resp. Br.
at 26), even though it conceded that Section 1395ff does bar review of
the carrier's factual determinations.  See generally Erika Resp. Br.
at I, 6-7, 26-28, 40-41.  Essentially identical arguments were made in
a brief amicus curiae filed by the American Academy of Family
Physicians, the parent organization of the Michigan Academy of Family
Physicians, a respondent in this case (see Resp. Br. 2).  The family
physicians' brief argued that 42 U.S.C. 1395ff should not be construed
to bar judicial review of regulatory and statutory questions, even if
review of the carrier's essentially arithmetic computation of benefit
amounts is foreclosed (Erika Amicus Br. at 12-13, 15-18, 23, 25-27),
and it cited the district court's decision in the instant case as an
example of the sort of statutory challenge to a carrier's actions
that, like the claim in Erika itself, should not be barred from
judicial review under Section 1395ff (Erika Amicus Br. at 28).  In
addition, the American Academy of Family Physicians pointed out that
under governing regulations and the Carrier's Manual, /1/ the carrier
hearing officer is bound by provisions of the Medicare Act,
Implementing regulations, and instructions issued by the Health Care
Financing Administration;  and it argued that 42 U.S.C. 1395ff should
not be construed to bar judicial review of any such issues that the
hearing officer does not have authority to pass upon.  See Erika
Amicus Br. at 14-17.  Respondents repeatedly make this same argument
in this case.  See Resp. Br. 4-5, 16-17, 19, 24-25, 26, 28, 29, 30.
/2/

   This Court unanimously rejected these arguments in Erika, and they
are no more persuasive now.  Nothing in the text or legislative
history of 42 U.S.C. 1395ff suggests a congressional intent to
distinguish, for purposes of judicial review, between issues of fact
on the one hand and issues of statutory construction and the validity
of regulations on the other.  Section 1395ff provides for judicial
review pursuant to 42 U.S.C. 405(g) of the "amount of benefits"
payable under Part A of the Medicare Program, but does not provide for
such review of the "amount of benefits" under Part B.  Section 405(g)
in turn specifically provides for judicial review of the validity of
regulations issued by the Secretary that have a bearing on the
decision on an individual claim for benefits, /3/ and the legislative
history of 42 U.S.C. 405(g) makes clear that it was intended to
establish the mechanism for obtaining judicial review of other
questions of law that may be involved in individual claims.  /4/
Accordingly, when Congress affirmatively authorized judicial review of
the amount of benefits under Part A pursuant to 42 U.S.C. 405(g), it
thereby authorized judicial review of questions of law, including the
validity of regulations issued by the Secretary, that relate to the
Secretary's calculation of the amount of benefits.  The corresponding
foreclosure of judicial review of the "amount of benefits" under Part
B, which this Court recognized in Erika, therefore also extends to
questions of statutory construction and the validity of regulations
that may affect the carrier's determination of the amount of benefits
payable under Part B.

   It does not matter for these purposes that, as respondents
repeatedly stress, the carrier hearing officer is bound to follow the
provisions of the Act, implementing regulations, and instructions
issued by the Secretary.  Compare Ringer, slip op. 4.  This
requirement simply reflects the practical necessity that the Secretary
must retain ultimate administrative responsibility for legal issues
that arise in connection with the adjudication of claims under the
vast Part B Medicare Program and that the carrier's personnel are not
free to disagree with his resolution of these matters.  The purpose of
an administrative hearing is not to resolve such questions of law in
any event, especially since they do not turn on circumstances unique
to a particular claimant.  See Heckler v. Campbell, 461 U.S. 458,
467-468 (1983).  The provisions of the regulations and Carrier's
Manual limiting the authority of the carrier hearing officer with
respect to questions of law therefore have no bearing whatsoever on
the availability of judicial review of such questions.  Cf. Schweiker
v. McClure, 456 U.S. 188, 197 (1982).  /5/

   Thus, as this Court recently observed, in distinguishing Erika from
a case in which Congress was held not to have foreclosed judicial
review of statutory questions relating to benefit determinations, the
circumstances of the enactment of 42 U.S.C. 1395ff "'confirm(ed)'
Congress' intent absolutely to preclude review." (Lindahl v. OPM, No.
83-5954 (Mar. 20, 1985), slip op. 21 n.28 (emphasis added), quoting
Erika, 456 U.S. at 208).  The Court followed Erika only two years ago
in Ringer, holding that a statutory challenge to the carrier's actions
and the validity of a formal ruling by the Secretary was foreclosed
under Part B.  Ringer, slip op. 5 n.4, 6-7 & n.7.  Moreover, since
Erika was decided, Congress has revisited the Part B Medicare Program
on numerous occasions and made extensive revisions in that Program.
/6/ But although proposals have been made to provide for judicial
review under Part B in certain circumstances, Congress has not amended
42 U.S.C. 1395ff to overrule Erika and provide for even limited
judicial review of such matters.  Compare Merrill Lynch, Pierce,
Fenner & Smith v. Curran, 456 U.S. 353, 381-382 (1982).  /7/ There
accordingly is no basis for respondents' contention that the Court
should now recognize a right of judicial review where it previously
held such review to be barred in Erika -- and to do so without regard
to the amount-in-controversy and other limitations on judicial review
under 42 U.S.C. 1395ff and 405(g), as the court of appeals permitted
in this case.  /8/

   2. Respondents make only a passing effort (Br. 20-23) to avoid the
force of 42 U.S.C. 405(h), which is incorporated into the Medicare
Program by 42 U.S.C. 1395ii and independently bars judicial review in
this case.  The second sentence of Section 405(h) provides that "no
findings of fact or decision of the Secretary shall be reviewed by any
* * * tribunal * * * except as herein provided" -- i.e., except as
provided in the Social Security Act itself.  Because nothing in the
Social Security Act provides for judicial review under Part B, such
review is foreclosed by the second sentence of Section 405(h).
Respondents argue (Br. 21) that the second sentence of Section 405(h)
does not apply in this case because decisions on claims for benefits
under Part B are made by the carriers, not the Secretary.  See also
AMA Br. 13-14.  This argument, however, ignores the fact that the
carrier simply acts as the Secretary's agent in adjudicating Part B
claims, and the Secretary is the real party in interest in any
litigation arising under the program.  See Erika, 456 U.S. at 206 n.4.
 Respondents' argument is especially misplaced in this case, because
they brought this suit to challenge a regulation promulgated by the
Secretary that allows separate prevailing charge screens.

   The third sentence of Section 405(h), as incorporated by 42 U.S.C.
1395ii, provides that "(n)o action" shall be brought under 28 U.S.C.
1331 "to recover on any claim arising under" the Medicare Act.
Respondents first maintain (Br. 21) that this sentence is inapplicable
in this case because they are not seeking to recover on a claim for
benefits, but instead are challenging the mechanism for determining
the prevailing charge level.  However, as we have explained (Pet. Br.
6, 24-25), the prevailing charge level is an integral component in the
determination of the amount of benefits payable on a particular claim.
 Accordingly, contrary to the AMA's assertion (AMA Br. 17),
respondents' challenge to the prevailing charge level is "inextricably
intertwined" with the claim for benefits.  Under Ringer (slip op.
11-13, 19-23), a claimant cannot separate out one issue bearing on his
claim for benefits in this manner and seek judicial review of that
issue in a separate action under 28 U.S.C. 1331.  See Pet. Br. 35-36.

   Respondents next argue (Br. 22-23) that the third sentence of
Section 405(h) does not bar this suit under 28 U.S.C. 1331 because
review is not otherwise available under 42 U.S.C. 405(g).  However, in
Ringer, this Court explicitly rejected the contention that the
application of the sweeping jurisdictional bar in Section 405(h)
depends on whether Congress has authorized judicial review under
another provision of the Social Security Act.  Ringer, slip op. 19.
Indeed, the very purpose of Section 405(h) is to preclude judicial
review except where and to the extent it is affirmatively authorized
under the Social Security Act, pursuant to 42 U.S.C. 405(g).  S. Rep.
734, supra, at 52;  H.R. Rep. 728, supra, at 43-44.  /9/ Thus, Section
405(h) reinforces what is in any event clear from the text and
legislative history of 42 U.S.C. 1395ff:  judicial review of the
carrier's determination of the prevailing charge level in this case is
foreclosed.

   3. Although it is not directly involved here, respondents also
present (Br. 7-12, 33-34) a defense of the court of appeals' holding
on the merits.  The court of appeals held that the regulation
authorizing the establishment of separate charge screens (42 C.F.R.
405.504(b)) is inconsistent with the requirement in 42 U.S.C.
1395u(b)(3) that the prevailing charge level be calculated on the
basis of charges for "similar" services (Pet. App. 11a-14a).
Respondents' arguments warrant a brief response.

   Respondents' submission proceeds as if the decision by the carrier
in Michigan to adopt separate charge screens is an aberration under
the Medicare Program.  In fact, however, separate screens for
specialists and general practitioners are the rule, not the exception.
 A study prepared for the responsible congressional committees in 1983
stated that in the period between July 1, 1981 and June 30, 1982,
"Medicare carriers recognized specialty reimbursement differentials in
all areas of the country except for Florida, Kansas, North Dakota,
South Dakota, and the area of New York served by Blue Shield of
Western New York." Staffs of the Sen. Comm. on Finance and the House
Comms. on Ways and Means and Energy and Commerce, 98th Cong., 1st
Sess., Background Data on Physician Reimbursement Under Medicare 74
(Joint Comm. Print 1983) (hereinafter cited as Comm. Print).  /10/
There was no suggestion that these differing charge screens are
unlawful under 42 U.S.C. 1395u, as respondents maintain.  See Comm.
Print 10, 95-96.

   Moreover, although Congress has extensively revised the Part B
physician reimbursement provisions in 42 U.S.C. 1395u in a number of
respects in recent years (see page 7 and note 6, supra), Congress has
not amended that Section to prohibit the use of separate charge
screens, which have been authorized by the Secretary's regulations
since 1967.  /11/ To the contrary, in Section 2309 of the Deficit
Reduction Act of 1984, Pub. L. No. 98-369, 98 Stat. 1074-1075,
Congress directed the Office of Technology Assessment to "conduct a
study of physician reimbursement under the medicare program";  this
study is to include findings and recommendations regarding how
"payment amounts and other program policies under part B * * * may be
modified" to, inter alia, "eliminate inequities in the relative
amounts paid to physicians by type of service, locality, and
specialty" (Section 2309(a)(1)(A) (emphasis added)).  /12/ There is no
suggestion in this legislation that any difference in the relative
amounts paid to physicians depending upon their specialty was any less
consistent with the Act than differences that might occur as a result
of "type of service" or "locality." See H.R. Cong. Rep. 98-861, 98th
Cong., 2d Sess. 1318-1319 (1984).  Congress simply chose to study the
matter to determine whether possible adjustments should be made in the
established reimbursement scheme.  Compare Heckler v. Day, No. 82-1371
(May 22, 1984), slip op. 9-10.

   Against the background of Congress's close scrutiny of the Medicare
Part B Program and its frequent amendments to the governing statutory
provisions, it was an "unwarranted judicial intrusion into this
pervasively regulated area" (Day, slip op. 15) for the court of
appeals to invalidate a reimbursement method that has been a feature
of the Part B Program virtually since its enactment.

   4. Finally, respondents argue (Br. 32-34) that the regulation
authorizing the use of different charge screens based on a physician's
specialty violates the Due Process Clause, and they contend (Br.
35-43) that Congress cannot foreclose judicial review of the
contention.  However, for the reasons stated in our opening brief (at
43-44), respondents' constitutional arguments are too insubstantial to
support subject matter jurisdiction.  See Ringer, slip op. 5 n.4.
Respondents cite (Br. 34) testimony by several witnesses in this case
to the effect that the use of separate charge screens causes more
physicians to become specialized, affects a patient's choice of a
physician, and leads to increased costs.  Even if this testimony is
credited, neither the Medicare Act nor an implementing regulation is
unconstitutional because it may have those incidental consequences.

   The purpose of the Medicare Act is to provide a program of
insurance for a portion of the reasonable medical charges actually
incurred by a beneficiary, based on experience in the community.  It
therefore plainly is rational for Congress, through the Secretary, to
authorize carriers to utilize differing charge screens based on
existing differentials in the charging patterns of specialists and
others.  Moreover, Congress rationally could determine that services
furnished by persons with certain types of specialization are
sufficiently different from comparable services furnished by others to
warrant different levels of reimbursement.  The question in
respondents' constitutional challenge to the regulation is not whether
Congress (or even the Secretary or the carrier) has current empirical
data to establish the validity of these premises.  The question is
whether Congress rationally could have believed them to be valid.
Vance v. Bradley, 440 U.S. 93, 109-112 (1979).  Respondents have made
no showing whatever that Congress could not rationally do so.  /13/

   For the foregoing reasons and the additional reasons stated in our
opening brief, the judgment of the court of appeals should be
reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   JANUARY 1986

   /1/ See 42 C.F.R. 405.860;  Department of Health and Human
Services, Medicare Part B Carrier's Manual Section 12016, quoted at
Resp. Br. 4-5.

   /2/ However, the court of appeals in this case did not rest its
jurisdictional ruling on the scope of the carrier hearing officer's
discretion;  the court did not even mention that point.  See Pet. App.
6a-11a, 17a-22a.

   /3/ Section 405(g) provides in part:  "(W)here a claim has been
denied by the Secretary * * * because of failure of the claimant * * *
to submit proof in conformity with any regulation prescribed under
subsection (a) of this section, the court shall review only the
question of conformity with such regulations and the validity of such
regulations."

   /4/ See H.R. Rep. 728, 76th Cong., 1st Sess. 43 (1939);  S. Rep.
734, 76th Cong., 1st Sess. 52 (1939).

   /5/ Contrary to respondents' apparent contention (Resp. Br. 24),
the carrier hearing officer in Erika held that the issues involved in
that case -- whether retroactive adjustments could be made in the
reimbursement for certain supplies and whether the prevailing charge
level could be adjusted upward to account for price increases during
the year -- were beyond his authority to determine, in light of
instructions from the Secretary that prohibited such adjustments.
Erika Pet. App. at 46a-48a, 78a-86a.  In fact, the hearing officer
specifically cited the regulation (42 C.F.R. 405.860) that required
him to follow the provisions of the Act, regulations, and
instructions.  Erika Pet. App. at 40a.

   /6/ See Pub. L. No. 97-248, Sections 104(a), 113(a), 128(d)(1), 96
Stat. 336, 340, 367;  Pub. L. No. 98-369, Sections 2306, 2339, 98
Stat. 1070, 1093;  Pub. L. No. 98-617, Section 3(a)(1), (b)(5) and
(6), 98 Stat. 3295-3296;  Pub. L. No. 99-107, Section 5(b), 99 Stat.
479.

   /7/ On September 11, 1985, the House Committe on Energy and
Commerce reported a bill that would amend 42 U.S.C. 1395ff to provide
for an ALJ hearing on a Part B claim if the amount in controversy is
$500 or more and judicial review if the amount in controversy is $1000
or more.  H.R. 3101, 99th Cong., 1st Sess. Section 132.  See H.R. Rep.
99-265, 99th Cong., 1st Sess. 51 (1985).  This provision then was
included as Section 9212 of H.R. 3128, 99th Cong., 1st Sess. (1985)
(the Consolidated Omnibus Budget Reconciliation Act of 1985).  See 131
Cong. Rec. H13125 (daily ed. Dec. 19, 1985).  That bill was reported
by the Conference Committee on December 19, 1985 (id. at H13093), but
the House and Senate are in disagreement concerning approval of the
Conference Report.  See id. at H13302, S18400-S18401.

   The portions of the committee reports discussing the Medicare
appeal provisions make clear that Congress is of the view that, at the
present time, "(t)he law does not provide for any * * * judicial
review for a (P)art B claim." H.R. Conf. Rep. 99-453, 99th Cong., 1st
Sess. 452-453 (1985), reprinted in 131 Cong. Rec. H13238 (daily ed.
Dec. 19, 1985);  H.R. Rep. 99-265, supra, at 51-52.  See also Health
Financing:  Hearings on Deficit Reduction Proposals -- Part B of
Medicare, Before the Subcomm. on Health and the Environment of the
House Comm. on Energy and Commerce, 99th Cong., 1st Sess. 476 (1985)
(discussing Erika);  id. at 427, 458, 472-493, 531.

   /8/ The suggestion by respondents (Br. 26-27) and amicus American
Medical Association (AMA Br. 7-8, 11) that Erika is distinguishable
because this case does not involve an actual claim for benefits is
completely without merit.  Respondents stress (Br. 27) that all the
court of appeals did was to remand the case to the Secretary with
instructions to determine the prevailing charge by reference to
"similar" services, and that it did not become involved in the
adjudication of particular benefit claims.  Respondents ignore the
fact that this also was the only relief granted by the Court of Claims
in Erika;  the court there likewise eschewed any role in the
determination of individual claims.  634 F.2d at 589-591;  see 456
U.S. at 206.

   In addition, although respondents have not sought an actual award
of benefits from the courts in this case, they have sought judicial
review of a regulation that pertains to the prevailing charge aspect
of benefit determinations, which is an integral part of a claim for
benefits under Part B.  A claimant cannot avoid the total preclusion
of review under 42 U.S.C. 1395ff by splitting off one legal issue that
may have a bearing on his claim for benefits and seeking judicial
review on only that discrete matter.  See Ringer, slip op. 5 n.4, 12,
18-19.  Moreover, in Erika, the carrier hearing officer applied what
he understood to be binding instructions from the Secretary that
limited the amount of reimbursement.  Erika Pet. App. at 44a-46a,
80a-82a.  The Court of Claims reviewed several of those instructions
and determined that they were not binding.  634 F.2d at 590-591.
Thus, contrary to the AMA's assertion (AMA Br. 8 n.4), Erika cannot be
distinguished on the ground that it did not involve a challenge to
instructions issued by the Secretary.

   /9/ Contrary to the AMA's contention (AMA Br. 17-19), the fact that
Congress, in 42 U.S.C. 1395ii, provided that Section 405(h) and
certain other provisions of Title II shall apply to the Medicare
Program "to the same extent as they are applicable with respect to
(title) II" does not suggest that Section 405(h) has a less sweeping
application under the Medicare Program.  To the contrary, Congress
made Section 405(h) applicable "to the same extent" as under Title II,
where it absolutely bars the exercise of jurisdiction under 28 U.S.C.
1331 and permits judicial review only pursuant to 42 U.S.C. 405(g).
See Weinberger v. Salfi, 422 U.S. 749, 756-762 (1975).  Congress
provided for judicial review pursuant to 42 U.S.C. 405(g) under the
Medicare Act in certain circumstances.  See 42 U.S.C. 1395ff.  It
therefore is reasonable to assume that Congress intended Section
405(h) to have the effect under the Medicare Act, as under Title II,
of barring the exercise of jurisdiction under 28 U.S.C. 1331 and to
allow judicial review only where it is affirmatively authorized by 42
U.S.C. 1395ff and 405(g).  Moreover, the Court enforced the preclusion
of review in Section 405(h) in Ringer, a Medicare case, without
suggesting that it does not apply with full force under the Medicare
Program.  See Ringer, slip op. 11-12, 19-23.

   /10/ The study states:  "Differentials between general
practitioners and specialists were already recognized by many private
insurance plans at the time Medicare was enacted.  Over the years
there has been some concern that the general policy among third
parties, including Medicare, of recognizing such fee differentials has
tended to encourage increased specialization.  However, it has been
suggested by some that specialists may provide a different type of
higher quality service." Comm. Print 74.

   /11/ The regulation already was in effect in 1972, when Congress
amended 42 U.S.C. 1395u to add the sentence under which respondents
now argue that the regulation is invalid.  See 20 C.F.R. 405.504(b)
(1972);  Pub. L. No. 92-603, Section 224(a), 86 Stat. 1395.  That
sentence provides that no charge shall be found to be reasonable if it
exceeds "the prevailing charge level that, on the basis of statistical
data and methodology acceptable to the Secretary, would cover 75
percent of the customary charges made for similar services in the same
locality during the last preceding calendar year * * *." This sentence
was incorporated essentially verbatim from, and was intended to
ratify, a provision in the then-existing regulations that placed a
limit on the reasonable charge.  See S. Rep. 92-1230, 92d Cong., 2d
Sess. 191-194 (1972).  The regulatory provision Congress incorporated
into the Act was subsection (a) of 20 C.F.R. 405.504 (1972).
Subsection (b) of that same regulation contained the authorization for
separate charge screens that respondents challenge in this case.
Accordingly, Congress must have been aware when it enacted the
amendments in 1972 that the use of separate charge screens was a
"methodology acceptable to the Secretary" within the meaning of
subsection (a) of the regulation and, therefore, within the meaning of
the sentence it added to 42 U.S.C. 1395u.  Congress's failure to amend
42 U.S.C. 1395u to prevent the use of separate charge screens in these
circumstances thus lends considerable support to the reasonableness of
the Secretary's interpretation of the Act as permitting the use of
such screens.  Compare Merrill Lynch, Pierce, Fenner & Smith v.
Curran, 456 U.S. at 381-382.

   /12/ The report was to be submitted to Congress by December 31,
1985 (98 Stat. 1075), but we have been informed that it has not yet
been completed.

   /13/ Respondents and the AMA suggest (Br. 35, 37;  AMA Br. 19-25)
that, under the three-part balancing test of Mathews v. Eldridge, 424
U.S. 319, 335 (1976), the Due Process Clause requires the availability
of judicial review even in the absence of a constitutional question.
This contention was not raised by respondents in the court of appeals,
and it is, in any event, without merit.  This Court, applying the
three-part balancing test of Mathews v. Eldridge, supra, already has
rejected the contention that the Due Process Clause prevents Congress
from according finality to the carrier's determination of Part B
Medicare claims.  Schweiker v. McClure, 456 U.S. at 198-200.  Nor has
this Court elsewhere suggested that it would be unconstitutional for
Congress to foreclose judicial review of nonconstitutional issues that
might arise in connection with the adjudication of claims for
statutory benefits.  See Johnson v. Robison, 415 U.S. 361, 366-367
(1974);  Salfi, 422 U.S. at 762;  Lindahl v. OPM, slip op. 8-21.
Compare Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50,
77-87 (1982) (plurality opinion).