United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 18, 2007 Decided April 17, 2007
No. 06-5295
ACTION ALLIANCE OF SENIOR CITIZENS, ET AL.,
APPELLEES
v.
MICHAEL O. LEAVITT, SECRETARY OF DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 06cv01607)
Alisa B. Klein, Attorney, U.S. Department of Justice,
argued the cause for appellant. With her on the briefs were
Peter D. Keisler, Assistant Attorney General, Jeffrey A.
Taylor, U.S. Attorney, Jeffrey S. Bucholtz, Principal Deputy
Assistant Attorney General, Jonathan F. Cohn, Deputy
Assistant Attorney General, Mark B. Stern, Attorney, Daniel
Meron, General Counsel, U.S. Department of Health and
Human Services, Kathleen H. McGuan, Associate General
Counsel, and Marcus H. Christ and Lawrence J. Harder,
Counsel.
2
Gill Deford argued the cause for appellees. With him on
the brief were Vicki Gottlich and Patricia B. Nemore.
Bruce B. Vignery, Sarah Lenz Lock, and Michael
Schuster were on the brief for amicus curiae American
Association of Retired Persons in support of appellees.
Before: GINSBURG, Chief Judge, and TATEL, Circuit
Judge, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: This case involves an
effort on behalf of some 230,000 participants in the Medicare
Part D prescription drug program to resist—indeed to
reverse—the government’s efforts to recover payments
mistakenly made to those participants. The district court
issued an injunction ordering the Secretary of Health and
Human Services (the “Secretary”) (1) to refund monies to
those participants who had, at the Secretary’s request,
returned the errant payments and (2) to notify all recipients of
a right to request waiver of repayment. This court stayed the
injunction. The plaintiffs have over the course of the
litigation invoked two statutory bases for relief. (Plaintiffs
also brought constitutional claims, which the district court did
not reach.) As to the claim under 42 U.S.C. § 404(b), we find
that the district court lacked jurisdiction; and the second
claim, under 42 U.S.C. § 1395gg, clearly lacks merit. Thus,
we vacate the injunction and remand.
* * *
3
Medicare Part D, established by the Medicare
Prescription Drug, Improvement, and Modernization Act of
2003, Pub. L. No. 108-173, 117 Stat. 2066, offers subsidized
prescription drug insurance coverage. 42 U.S.C. § 1395w-
101(a)(1). Whereas under Medicare Parts A and B the
government pays providers on participants’ behalf for goods
or services received, under Part D the government contracts
for and subsidizes insurance plans offered by private, third-
party insurers. Id. § 1395w-115.
Part D participants pay monthly premiums to their
insurers. See id. § 1395w-113(a). Most make these payments
directly, but about 20% have opted to have the Social Security
Administration (“SSA”) deduct the amount of their Part D
premium from their monthly benefits under Title II of the
Social Security Act and transmit that sum, on the participant’s
behalf, to the insurer. Id. §§ 1395w-116(b)(3) & 1395w-
24(d)(2)(A); see also 42 C.F.R. §§ 423.293(a) & 422.262(f)
(2006). The SSA, which plaintiffs have not sued, administers
Old-Age, Survivor, and Disability Insurance benefits under
Title II of the Social Security Act; Health and Human
Services (“HHS”) administers the various Medicare programs
found under Title XVIII of that Act. Since 1994 the SSA,
directed by the Commissioner of Social Security (the
“Commissioner”), has been independent of HHS. See Social
Security Independence and Program Improvements Act of
1994, Pub. L. No. 103-296, 108 Stat. 1464; 42 U.S.C. §§ 401-
434 (Title II); id. §§ 1395-1395hhh (Title XVIII).
In a monumental gaffe in early August 2006, the SSA
wrote to some 230,000 participants, stating “[w]e will no
longer deduct money for your health plan premium(s) from
your monthly benefits.” Amended Compl., Ex. B, Joint
Appendix (“J.A.”) 61. The letter also said, without further
explanation, that the addressee would be receiving a check in
4
a specified amount, coinciding with the recipient’s premium
for the just-past month. The average payment was $215, for a
total of some $47 million. The parties agree these payments
were all made in error. In early September, the Secretary
requested repayment of the funds by the end of that month,
but indicated that “[i]f returning the amount in full presents
you with a hardship, you may request to make monthly
installment payments for as many as seven months.” See id.
Ex. A, J.A. 58-59. The Secretary’s letter also stated
(accurately) that despite the mistaken payment to the insured,
“prescription drug coverage will continue uninterrupted.” Id.
On September 15, Action Alliance and the Gray Panthers
(collectively “the Alliance”), advocacy organizations whose
membership includes many Part D participants, filed suit in
district court seeking injunctive, declaratory, and mandamus
relief on statutory and constitutional grounds. (The plaintiffs
later amended their complaint to add Lucy Carolyn Loveall, a
Part D participant who received a check for $161.70, a sum
which she spent and states she is now unable to repay.) The
complaint rested in part on 42 U.S.C. § 1395gg, which allows
the government to recover funds where “more than the correct
amount is paid under th[e] [Medicare] subchapter . . . for
items or services furnished an individual,” § 1395gg(b), but
provides for government waiver of this recovery:
There shall be no adjustment as provided in subsection
(b) of this section (nor shall there be recovery) in any
case where the incorrect payment has been made . . . with
respect to an individual who is without fault . . . if such
adjustment (or recovery) would defeat the purposes of
subchapter II [Old-Age, Survivors, and Disability
Insurance] or subchapter XVIII [Medicare] of this chapter
or would be against equity and good conscience.
5
42 U.S.C. § 1395gg(c).
The Alliance asserted that Part D participants who
received erroneous payments were entitled, under § 1395gg,
to “written notice . . . of their right to seek waiver of
repayment” and an oral hearing prior to recovery of such
payments. Amended Compl. at 14, J.A. 52. The district court
rejected this claim, noting that § 1395gg applies only to
payments for “items or services” (such as under Medicare
Parts A and B), and thus that its waiver provision did not
encompass erroneous premium refunds. Action Alliance of
Senior Citizens v. Leavitt, 456 F. Supp. 2d 11, 18 (D.D.C.
2006).
But the court observed that Medicare Part A and B
participants who authorize SSA to withhold their premiums
under those parts do enjoy a waiver right for erroneous
premium refunds. Internal SSA policy guidelines, in the form
of its Program Operations Manual System (“POMS”), create
such a right on the basis of Title II’s general waiver provision,
42 U.S.C. § 404(b). Action Alliance, 456 F. Supp. 2d at 18-
20; see also Social Security Administration, Program
Operations Manual System § HI 01001.330.A.
Section 404 addresses adjustment or recovery of incorrect
payments to Title II (Social Security) beneficiaries
“[w]henever the Commissioner of Social Security finds that
more or less than the correct amount of payment has been
made to any person under this [Title II] subchapter.” 42
U.S.C. § 404(a). Section 404(b) goes on to say:
In any case in which more than the correct amount of
payment has been made, there shall be no adjustment of
payments to, or recovery by the United States from, any
person who is without fault if such adjustment or
6
recovery would defeat the purpose of this subchapter or
would be against equity and good conscience.
Id. § 404(b).
Although the POMS was silent as to waiver for erroneous
refunds of Part D premiums, the district court believed that the
“statutory scheme” required that Part D beneficiaries receive
the same treatment as those under Parts A and B. Action
Alliance, 456 F. Supp. 2d at 20. It ordered the Secretary to re-
return the erroneous payments to Part D participants who had
repaid them and to notify all recipients of a right to request a
hardship waiver.
* * *
The Secretary challenges the injunction on a number of
grounds, most pertinently that the district court erred as a
matter of law in concluding that the statutes and regulations
governing overpayment of benefits and premiums under
Medicare Parts A and B apply to premium refunds under
Medicare Part D. The district court relied primarily on two
statutes in support of the asserted waiver right (also invoked
by the Alliance on appeal): § 404(b), which is the source of
the waiver right provided in POMS for Part A and B
beneficiaries, and § 1395gg(c), which, though applicable only
to provision of “items and services,” also indicated a general
embrace of waiver on grounds of “equity and good
conscience.” Before reaching either ground, however, we
consider the court’s jurisdiction (despite the government’s
failure to assert its lack until we called for briefing on the
subject). See Midwest Independent Transmission System
Operator, Inc. v. FERC, 388 F.3d 903, 908 (D.C. Cir. 2004)
7
(describing court’s “independent obligation to be certain” of
its jurisdiction).
Jurisdiction of § 404(b) claim. The Alliance asserts that
the district court had jurisdiction over its § 404(b) claim under
the federal question and mandamus statutes, 28 U.S.C.
§§ 1331 and 1361, as well as Title II’s separate judicial
review provision, 42 U.S.C. § 405(g). But the Alliance (and
the individual plaintiff) failed to present a § 404(b) claim to
the Commissioner of Social Security before seeking review;
the omission deprives the federal courts of jurisdiction to
consider the claim under § 405(g), and, because that route was
fully available to the Alliance, precludes jurisdiction under the
other provisions.
The starting point for analysis is 42 U.S.C. § 405(h),
which provides:
No findings of fact or decision of the Commissioner of
Social Security shall be reviewed by any person, tribunal,
or governmental agency except as herein provided. No
action against the United States, the Commissioner of
Social Security, or any officer or employee thereof shall
be brought under section 1331 or 1346 of Title 28 to
recover on any claim arising under this [Title II]
subchapter.
By its plain terms, then, § 405(h) bars Title II claims against
any officer of the United States (thus including the Secretary)
and applies to any claims “arising under this subchapter”—
i.e., 42 U.S.C. §§ 401-434.
The Alliance makes clear (as it must, given § 404(a)’s
requirement of a “payment . . . under this subchapter”) that its
§ 404 claim depends on a classification of the premium
8
refunds as a payment by the Commissioner under Title II. See
Appellee’s Br. at 22 (“[T]he payments at issue and the entity
responsible for making them are Social Security benefits and
the SSA.”). Thus the claim is unavoidably one “arising under
this subchapter” for the purposes of § 405(h).
Section 405(h) operates in conjunction with Title II’s
judicial review provision, § 405(g):
Any individual, after any final decision of the
Commissioner of Social Security made after a hearing to
which he was a party, irrespective of the amount in
controversy, may obtain a review of such decision [in a
district court] by a civil action . . . .
42 U.S.C. § 405(g).
In Weinberger v. Salfi, 422 U.S. 749 (1975), the Supreme
Court ruled that the district court had lacked jurisdiction
where the complaint “contain[ed] no allegations that [the
plaintiffs in question] have even filed an application with the
[Commissioner], much less that he has rendered any decision,
final or otherwise, review of which is sought.” Id. at 764.
And the Court noted that § 405(h) “[o]n its face” bars federal-
question jurisdiction over such claims. Id. at 756. The Court
soon qualified Salfi’s jurisdictional treatment of § 405(g)’s
requirement of “a final decision . . . made after a hearing,” see
id. at 763-64, distinguishing in Mathews v. Eldridge, 424 U.S.
319, 328 (1976), between the “final decision” element of
Salfi’s exhaustion requirement (from which a court could
relieve a plaintiff) and the “nonwaivable element [of § 405(g)
which] is the requirement that a claim for benefits shall have
been presented to the [Commissioner].” Id. (emphasis added).
The Court held that a plaintiff had satisfied presentment by
responding to a questionnaire from a state agency, where the
9
SSA later adopted (pursuant to the statutory scheme then in
effect) the state agency’s conclusion that Eldridge was no
longer disabled as a ground for terminating his federal
disability benefits. Id. at 329; see also Amendments to Title II
of the Social Security Act, Pub. L. 83-761, ch. 1206, tit. I,
§ 221(a), 68 Stat. 1052, 1081 (1954) (current version at 42
U.S.C. § 421(a)).
We have described Salfi’s presentment requirement as an
“absolute prerequisite” to review, finding a lack of jurisdiction
where a plaintiff “proceeded directly to district court, seeking
a preliminary injunction barring HHS . . . from implementing
[a] new rate reduction.” Nat’l Kidney Patients Ass’n v.
Sullivan, 958 F.2d 1127, 1129-30 (D.C. Cir. 1992); cf. Ryan v.
Bentsen, 12 F.3d 245, 247 n.3 (D.C. Cir. 1993) (presentment
satisfied where plaintiff requested reconsideration from a
regional SSA office of a decision to terminate his retirement
benefits).
The Alliance points first to the fact that Lucy Loveall’s
social worker contacted “Medicare and Social Security” on
her behalf after Loveall received the erroneous check. See
Amended Compl. at 12, J.A. 50. But, as described by the
Alliance, that communication made no mention of any claim
to a waiver right.
Alternatively, the Alliance relies on an August 30 e-mail
to the Administrator of the Centers for Medicare & Medicaid
Services (“CMS”) “inform[ing] him that the letter that CMS
was sending out to the affected beneficiaries did not alert
them to their right to waiver and request[ing] that [the letter]
be revised to include that information.” Amended Compl. at
8, J.A. 46; see also Appellees’ Supp. Br. at 6. We need not
decide whether an e-mail to CMS (which administers federal
health care financing programs under Titles XI, XVIII, and
10
XIX of the Social Security Act and is a division of the
Department of Health and Human Services) would qualify as
presentment of a claim under § 404(b) (a provision so far as
appears administered by the Commissioner of Social
Security), as the Alliance has failed to show that it ever
invoked § 404(b) before either agency. Neither in its original
or amended complaint, nor in any papers that it has called to
our attention, nor in its supplemental briefing on jurisdiction,
has it suggested that the e-mail mentioned § 404(b).
The Alliance’s various other arguments attempting to
avoid presentment are also unavailing. The Alliance contends
that the “Secretary knows, without receiving a specific
demand, that beneficiaries want the right to seek waiver.”
Appellees’ Supp. Br. at 6. But, putting aside that presentment
to the Commissioner is in question, a notion that imputed
official intuition of people’s probable desires could qualify as
a presentment would strip the requirement of all content. See
Eldridge, 424 U.S. at 328; see also Nat’l Kidney Patients
Ass’n, 958 F.2d at 1130. Similarly, the Alliance’s assertion
that Loveall’s non-response to the Secretary’s demand for
repayment amounted to presentment is simply another label
for a proposal to erase the requirement.
The Alliance also cites Linquist v. Bowen, 813 F.2d 884,
887-88 & nn.11-12 (8th Cir. 1987), a case involving SSA’s
misreading of a provision reducing benefits on account of
beneficiaries’ outside income. The decision treated as
presentment the unnamed class members’ filing of their initial
claims and their later earnings reports. Id. at 887 n.11. But it
also rested on the continued availability of mandamus—a
proposition with which we agree but which is subject to
mandamus’s invariable condition, the absence of an
alternative remedy, which the court did not address.
Moreover, the decision’s explicit reliance on categorizing the
11
claim as “collateral,” see id. at 887-88 n.12, has been rendered
obsolete by Shalala v. Illinois Council on Long Term Care,
Inc., 529 U.S. 1, 13-14 (2000). (Briggs v. Sullivan, 886 F.2d
1132, 1139 (9th Cir. 1989), which the Alliance also cites, was
grounded on the same distinction.) Finally, insofar as Linquist
dispenses with the presentment requirement for non-
entitlement claims, as it appears to do, see 813 F.2d at 887-88
n.12, we respectfully disagree.
The Alliance alternatively asserts that the district court
had mandamus jurisdiction over the § 404(b) claim. But the
existence of an administrative remedy under Subchapter II—
i.e., the Alliance could present the § 404(b) claim directly to
the Commissioner and then, if it were denied, seek judicial
review pursuant to § 405(g)—precludes the exercise of
mandamus, which is available only if “no other adequate
remedy [is] available to plaintiff.” Fornaro v. James, 416
F.3d 63, 69 (D.C. Cir. 2005).
We note that our prior observations that § 405(h)’s
jurisdiction-stripping provision (which explicitly mentions
only §§ 1331 and 1346) does not in theory bar a court from
exercising mandamus jurisdiction with respect to a Social
Security claim, see Ganem v. Heckler, 746 F.2d 844, 850
(D.C. Cir. 1984) (“[M]andamus jurisdiction is not precluded
by [§ 405(h) of] the [Social Security] Act.”), are obviously
subject to the standard rule that the existence of an alternative
remedy precludes mandamus. See also Heckler v. Ringer, 466
U.S. 602, 620-21 (1984) (mandamus jurisdiction “not
available” where plaintiff had administrative remedy under
Medicare Act).
Thus, we conclude that the district court lacked
jurisdiction to consider a claim for waiver under § 404(b).
12
* * *
We now turn to the Alliance’s second ground for relief,
42 U.S.C. § 1395gg. Adopting a position in some tension
with its earlier characterization of the erroneous payment as
having been made under Title II, the Alliance asserts that the
monies were “improper payments made in the Medicare
program,” Appellees’ Br. at 29-30, and thus subject to waiver
under § 1395gg(c). Compare Oral Arg. at 21:30 (“The only
place this money could have come from was the Title II trust
fund.”). Accepting this view arguendo, we hold that although
the district court had jurisdiction, the § 1395gg claim clearly
lacks merit.
Jurisdiction of § 1395gg claim. The general bar on
federal question jurisdiction originating in the Social Security
domain, § 405(h), is integrated into the Medicare subchapter
by 42 U.S.C. § 1395ii, which provides:
The provisions of . . . subsections (a), (d), (e), (h), (i), (j),
(k), and (l) of section 405 of this title [42 U.S.C. § 405],
shall also apply with respect to this subchapter [XVIII] to
the same extent as they are applicable with respect to
subchapter II of this chapter, except that, in applying such
provisions with respect to this subchapter, any reference
therein to the Commissioner of Social Security or the
Social Security Administration shall be considered a
reference to the Secretary or the Department of Health
and Human Services, respectively.
42 U.S.C. § 1395ii (emphasis added). Thus, general federal
question jurisdiction is generally unavailable for “any claim
arising under” the Medicare Act—i.e., any claim that has its
“standing and . . . substantive basis” in that Act. Illinois
Council, 529 U.S. at 11.
13
But the Supreme Court has recognized an exception to
this rule where application of § 1395ii “would not lead to a
channeling of review through the agency, but would mean no
review at all.” Illinois Council, 529 U.S. at 17 (Medicare Part
A claim); see also Bowen v. Michigan Academy of Family
Physicians, 476 U.S. 667, 669-70 (1986) (applying, in the
absence of any statutory grant of judicial review in the Part B
statute then in effect, a “strong presumption that Congress
intends judicial review of administrative action” and finding
jurisdiction over a statutory and constitutional challenge to a
Medicare Part B regulation); American Chiropractic Ass’n,
Inc. v. Leavitt, 431 F.3d 812, 816 (D.C. Cir. 2005) (“[I]f the
claimant can obtain judicial review [of his Medicare Part C
claim] only in a federal question suit, § 1395ii will not bar the
suit.”).
In Illinois Council the Court recently reaffirmed the
principle that federal question jurisdiction is available where
application of §§ 1395ii and 405(h) would mean “no review at
all” of a plaintiff’s claim, 529 U.S. at 19, but found that the
plaintiffs there had failed to show that they could obtain “no
review at all” (absent § 1331 jurisdiction) of their statutory
and constitutional challenges to certain Part A regulations, id.
at 20. Thus the Court appears to have left open a door to
§ 1331 to fill jurisdictional gaps it presumes Congress did not
intend. Although the plaintiffs in Illinois Council and
Michigan Academy backed their statutory claims with
constitutional ones, the same appears to be true here.
Moreover, Illinois Council did not explicitly restrict its rule to
constitutional claims. And Michigan Academy formulated its
broad presumption against “prohibit[ing] all judicial review of
executive action,” 476 U.S. at 681 (internal quotation marks
omitted), by relying in part on Dunlop v. Bachowski, 421 U.S.
560, 567 (1975), a case involving only a statutory challenge to
agency action.
14
Under Illinois Council and Michigan Academy, then, we
must consider whether the Alliance could have obtained
judicial review of its § 1395gg claim through the “special
review channel[s]” of the Medicare Act. The problem is that
no statute appears to make any affirmative grant of
(channeled) jurisdiction over Medicare Part D claims of the
type pressed by the Alliance. First, § 405(g) is conspicuously
absent from the list of Title II provisions incorporated into
Medicare by § 1395ii. Second, while 42 U.S.C.
§ 1395ff(b)(1)(A) provides for judicial review of benefit
claims under § 1395ff(a)(1), incorporating § 405(g) by
reference, subsection (a)(1) in turn covers only claims under
Medicare Parts A and B. In Ringer, the Court held that
§ 405(g) provided the sole jurisdictional basis for a claim for
benefits under Medicare Part A. 466 U.S. at 620-21. Under
Salfi and Eldridge, the incorporation of § 405(h) into
Medicare rendered § 1331 “not available” as a source of
jurisdiction. Id.
Medicare Part D contains its own, more narrowly-tailored
provision for judicial review, 42 U.S.C. § 1395w-104(h)(1),
on which the Alliance relied here as a basis for jurisdiction.
That section operates by imposing on Part D insurers certain
provisions already applicable to providers under Part C:
[A] PDP sponsor [i.e., the private insurer providing the
Part D drug coverage] shall meet the requirements of
paragraphs (4) and (5) of section 1395w-22(g) of this title
with respect to benefits . . . in a manner similar (as
determined by the Secretary) to the manner such
requirements apply to a[] M[edicare] A[dvantage]
organization . . . under part C [of this subchapter].
42 U.S.C. § 1395w-104(h)(1).
15
The cross-referenced § 1395w-22(g) (the judicial review
provision for Medicare Part C) deals with coverage
determinations by a Part C private insurer. Section 1395w-
22(g)(1)(A) requires insurers (known as “Medicare
Advantage” (“MA”) organizations) to have a procedure for
making benefit determinations for enrolled individuals, and
subsection (g)(2)(A) requires MA organizations to provide for
reconsiderations of such decisions. Sections 1395w-22(g)(4)
and (5), mentioned explicitly in § 1395w-104(h)(1), provide:
(4) The Secretary shall contract with an independent,
outside entity to review and resolve in a timely manner
reconsiderations [by MA organizations] that affirm denial
of coverage, in whole or in part. . . .
(5) An enrollee with a[n MA organization] . . . under this
part who is dissatisfied by reason of the enrollee’s failure
to receive any health service to which the enrollee
believes the enrollee is entitled . . . if the amount in
controversy is $100 or more, [is entitled] to a hearing
before the Secretary to the same extent as is provided in
section 405(b) of this title [42 U.S.C. § 405(b)], and in
any such hearing the Secretary shall make the
organization a party. If the amount in controversy is
$1,000 or more, the individual or organization shall . . .
be entitled to judicial review of the Secretary’s final
decision as provided in section 405(g) of this title . . . .
Id. § 1395w-22(g)(4) & (5).
Thus the Part D provisions, in the context of stating
prerequisites for PDP sponsors, weave in provisions for
judicial review derived from Part C. But these sections do not
appear to provide for judicial review of the kind of claim
asserted here. The Alliance did not bring a claim against a
16
“PDP sponsor,” see 42 U.S.C. § 1395w-104(h)(1), or for the
“failure to receive any health service to which the enrollee
believes the enrollee is entitled,” see § 1395w-22(g)(5).
Rather, the claim was directed against the Secretary for the
way in which he has collected premium payments.
As the Medicare statute appears to provide no avenue for
judicial review of the Alliance’s § 1395gg waiver claim, we
apply the rule of Michigan Academy and Illinois Council and
hold that the district court had jurisdiction over that claim
under 28 U.S.C. § 1331.
Merits of § 1395gg claim. At last we reach the merits of
the Alliance’s claim to a waiver right under § 1395gg. This
proves the easy part of the case. Subsection (a) makes
individuals responsible for “payment[s] under this subchapter
to any provider of services . . . with respect to any items or
services furnished any individual,” 42 U.S.C. § 1395gg(a)
(emphasis added), and subsection (b) gives the Secretary
authority to recoup from an individual where “more than the
correct amount is paid under this subchapter to a provider of
services . . . for items or services furnished an individual,” id.
§ 1395gg(b) (emphasis added). Finally, subsection (c)
provides for a waiver, saying that, under certain hardship
conditions there shall be “no adjustment as provided in
subsection (b) . . . where [an] incorrect payment has been
made . . . with respect to an individual.” Id. § 1395gg(c).
Thus, by its plain terms, 1395gg applies to overpayments to a
“provider of services” for “items or services furnished an
individual.” It has nothing to do with erroneous refunds of
Medicare premiums.
17
* * *
Having found that the district court lacked jurisdiction to
consider a waiver claim under 42 U.S.C. § 404(b), and that the
parallel claim under 42 U.S.C. § 1395gg clearly lacks merit,
we vacate the district court’s injunction and remand the case
for proceedings not inconsistent with this judgment.
So ordered.