Sunshine Haven Nursing Operations, LLC v. United States Department of Health & Human Services, Centers for Medicare & Medicaid Services

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS February 14, 2014

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court

SUNSHINE HAVEN NURSING
OPERATIONS, LLC, d/b/a Sunshine
Haven Lordsburg,

Petitioner,

v. No. 12-9557

UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
CENTERS FOR MEDICARE &
MEDICAID SERVICES,

Respondent.

ON PETITION FOR REVIEW FROM AN ORDER BY THE
DEPARTMENT OF HEALTH AND HUMAN SERVICES
(H.H.S. No. A-12-1)

Submitted on the briefs:*

Jennifer L. Stone and Thomas A. Outler, of Rodey, Dickason, Sloan, Akin & Robb,
P.A., Albuquerque, New Mexico, for Petitioner.

William B. Schultz, General Counsel, Delores “Dee” Thompson, Chief Counsel,
Region VI, Nigel F. Gant, Assistant Regional Counsel, United States Department of
Health and Human Services, Dallas, Texas for Respondent.

*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Before MATHESON, Circuit Judge, PORFILIO, Senior Circuit Judge, and
O’BRIEN, Circuit Judge.

MATHESON, Circuit Judge.

Petitioner Sunshine Haven Nursing Operations LLC (Sunshine) operates a

67-bed nursing home in Lordsburg, New Mexico. It petitions for review of the

United States Department of Health and Human Services (HHS) Departmental

Appeals Board’s (DAB) decision affirming an administrative law judge’s (ALJ)

decision upholding mandatory and discretionary “remedies” (penalties) imposed on

Sunshine by the Centers for Medicare and Medicaid Services (CMS). CMS remedies

are commonly characterized as imposed by the Secretary of HHS.

We have jurisdiction under 42 U.S.C. §§ 1395i-3(h)(2)(B)(ii) and 1320a-7a(e)

over Sunshine’s challenges to the Secretary’s imposition of four fines, known as civil

monetary penalties (CMPs), for four instances of noncompliance with federal

regulations. We lack jurisdiction, however, over Sunshine’s request to overturn the

other remedies resulting from the Secretary’s determinations that the Sunshine

facility was not in substantial compliance with federal regulations. 42 U.S.C.

§§ 1395cc(h)(1)(A) and 405(g) place jurisdiction for initial judicial review of such

matters in the federal district court.

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 We affirm the four CMPs and transfer the other issues to the United States

District Court for the District of New Mexico under the federal transfer statute,

28 U.S.C. § 1631.

I. BACKGROUND

A. Legal Background

“Established in 1965 under Title XVIII of the Social Security Act, . . . ,

Medicare is a federally funded health insurance program for the elderly and

disabled.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 506 (1994);

see generally 42 U.S.C. §§ 1395 to 1395kkk-1. “The Secretary of Health and Human

Services . . . is charged by Congress with administering the Medicare statute.”

Almy v. Sebelius, 679 F.3d 297, 299 (4th Cir. 2012) (citing 42 U.S.C. § 1395ff(a)(1)).

The Secretary administers Medicare through CMS.1 Hughes v. McCarthy, 734 F.3d

473, 475 (6th Cir. 2013). Medicare Part A, 42 U.S.C. §§ 1395c to 1395i-5, provides

coverage to eligible persons for hospital services, including those provided by skilled

nursing facilities (SNFs), such as Sunshine. See 42 U.S.C. §§ 1395c, 1395i-3.2

1
“Until 2001, CMS was known as the Health Care Financing Administration
or HCFA.” Ark. Dep’t of HHS v. Ahlborn, 547 U.S. 268, 275 n.3 (2006) (citing
66 Fed. Reg. 35437).
2
Other parts of Medicare are not involved in this case. “Congress created
Medicare Part B in 1965 to establish a supplemental medical insurance program for
senior and disabled citizens.” Blue Cross Blue Shield of Mass. v. AstraZeneca
Pharm. LP (In re Pharm. Indus. Average Wholesale Price Litig.), 582 F.3d 156, 163
(1st Cir. 2009) (citing 42 U.S.C. §§ 1365j to 1395w-4). Part B “provides
reimbursement for physician services, outpatient hospital care and a range of other
noninstitutional services, such as ambulance services, durable medical equipment,
(continued)
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 An SNF is eligible to enter into a “provider agreement” with CMS to

participate in the Medicare program and receive reimbursements for providing

covered services. See id. § 1395cc(a), (b). Federal law requires that “[a] skilled

nursing facility must operate and provide services in compliance with all applicable

Federal, State, and local laws and regulations . . . and with accepted professional

standards and principles which apply to professionals providing services in such a

facility.” Id. § 1395i-3(d)(4)(A).3 “Substantial compliance” is “a level of

diagnostic laboratory tests and X-rays.” United States v. Rufai, 732 F.3d 1175, 1179
(10th Cir. 2013) (internal quotation marks omitted). “In 1997, Congress enacted
Medicare Part C, providing for private Medicare Advantage plans. . . . Part C allows
eligible participants to opt out of traditional Medicare and instead obtain various
benefits through [private insurers called Medicare Advantage organizations], which
receive a fixed payment from the United States for each enrollee.” Parra v.
PacifiCare of Ariz., Inc., 715 F.3d 1146, 1152 (9th Cir. 2013) (citing 42 U.S.C.
§§ 1395w–21 to w–28). “In 2006, Congress made available (under ‘Part D’ of the
Medicare statute) the Medicare Prescription Drug Benefit to Medicare beneficiaries.”
N.E. Med. Servs., Inc. v. Calif. Dep’t of Health Care Servs., 712 F.3d 461, 464
(9th Cir. 2013).
3
The Medicare and Medicaid statutes were comprehensively revised and
strengthened by the Federal Nursing Home Reform Law, which Congress enacted as
part of the Omnibus Budget Reconciliation Act (OBRA) of 1987. Pub. L.
No. 100-203, §§ 4201–4206, 101 Stat. 1330 (codified as amended at 42 U.S.C.
§§ 1395i–3). The Chair of the Senate Special Committee on Aging explained that
“OBRA [1987] established . . . (1) requirements for those providers participating in
the federal health programs, (2) survey and certification processes to evaluate
compliance with the participation requirements, and (3) stricter sanctions and
enforcement procedures to address noncompliance with these requirements.”
Sen. Charles Grassley, Essay, THE RESURRECTION OF NURSING HOME REFORM: A
HISTORICAL ACCOUNT OF THE RECENT REVIVAL OF THE QUALITY OF CARE
STANDARDS FOR LONG-TERM CARE FACILITIES ESTABLISHED IN THE OMNIBUS
RECONCILIATION ACT OF 1987, 7 Elder L.J. 267, 267 (1999). Effective October 1,
1990, pursuant to the Reform Law, every nursing home resident covered by Medicare
is entitled to “skilled nursing care,” defined by statute as the level of care necessary
(continued)
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compliance with the requirements of participation such that any identified

deficiencies pose no greater risk to resident health or safety than the potential for

causing minimal harm.” 42 C.F.R. § 488.301 ¶ 19; see also Shalala v. Ill. Council on

Long Term Care, Inc., 529 U.S. 1, 7 (2000) (citing 42 U.S.C. § 1395i-3(h); 42 C.F.R.

§ 488.301). By contrast, “[n]oncompliance means any deficiency that causes a

facility to not be in substantial compliance.” 42 C.F.R. § 488.301 ¶ 11. A

“deficiency” is a violation of a statutory or regulatory participation requirement. Id.

¶ 3.

CMS is charged with overseeing compliance with Medicare’s conditions of

participation. See Palomar Med. Ctr. v. Sebelius, 693 F.3d 1151, 1153 (9th Cir.

2012); Massachusetts v. Sebelius, 638 F.3d 24, 30 (1st Cir. 2011) (citing 42 C.F.R.

§ 400.200 ¶ 2). Compliance is verified through unannounced inspections, called

“surveys,” conducted on behalf of CMS by state survey agencies (SAs). See,

e.g., 42 U.S.C. §§ 1395i-3(g)(2)(A), (g)(2)(E)(i), 1395aa(a). If a participating

provider is found to be out of substantial compliance, the SA presents a “Statement

of Deficiencies” (SOD) to the facility. 42 C.F.R. § 488.110(j), (k). To the extent

CMS concurs with the identified deficiencies, CMS may, and sometimes must,

impose remedies against the provider. See Ill. Council, 529 U.S. at 6 (citing

42 U.S.C. § 1395i-3). Remedies may include suspension of payment for new

to “attain or maintain the highest practicable physical, mental, and psychosocial
well-being of each resident.” 42 U.S.C. § 1395i-3(b)(4)(A)(i). The regulations
pertaining to SNFs became effective on July 1, 1995. 59 Fed. Reg. 56116.

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services, 42 U.S.C. § 1395i-3(h)(2)(B)(i), fines (CMPs), id. § 1395i-3(h)(2)(B)(ii),

termination of a facility’s provider agreement, id. §§ 1395i-3(h)(2)(A)(i), (h)(4),

1395cc(b)(2)(A), and disapproval for two years of a facility’s nurse aide training and

competency evaluation program (NATCEP), id. § 1395i-3(f)(2)(B)(iii)(I). If CMS

imposes remedies, a provider may request a hearing before an ALJ and

administrative review of the ALJ’s decision by the DAB. See, e.g., 42 C.F.R.

§ 498.5(b), (c).

B. Compliance Enforcement Against Sunshine

Sunshine contracted with CMS to provide Medicare services. In 2008, CMS

received a complaint from a family member of a resident that Sunshine was not

bathing her often enough. In response, CMS arranged for the New Mexico

Department of Health, the SA for facilities in New Mexico, to conduct a survey of

Sunshine. The SA conducted surveys on November 5 and 19, 2008, and on

January 21, February 3, February 5, and April 2, 2009.4 The SA found instances of

noncompliance in each survey and concluded that Sunshine was not in substantial

compliance with conditions of participation.

As a result of the SA’s reports, CMS issued Sunshine a denial of payment for

new admissions (DPNA) on February 5, 2009, based on a finding of three months’

4
It is undisputed that a seventh survey conducted on April 20, 2009, is not
relevant to this appeal because the DAB did not rely on any findings from that survey
to support any of the remedies imposed. See Sunshine Haven Lordsburg, DAB
No. 2456, at HHS 4, 2012 WL 1909289 (DAB Apr. 23, 2012).

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continuous noncompliance beginning on November 5, 2008. See 42 U.S.C.

§ 1395i-3(h)(2)(B)(i), (h)(2)(D). CMS also terminated Sunshine’s Medicare provider

agreement on May 6, 2009, based on a finding of six months’ continuous

noncompliance beginning on November 5, 2008. See id., § 1395i-3(h)(2)(C). CMS

also imposed four per-instance CMPs totaling $14,000, including two $5,000 CMPs

from the February 5, 2009 survey, and two $2,000 CMPs from the April 2, 2009

survey. The four deficiencies were determined to “immediately jeopardize the health

or safety of [Sunshine’s] residents.” See id. § 1395i-3(h)(1)(A), (2)(A)(i), (2)(B)(ii).

CMS also withdrew its approval for Sunshine’s NATCEP for two years based on the

DPNA, the termination of its provider agreement, and/or a CMP of not less than

$5,000. See id. § 1395i-3(f)(2)(B)(iii)(I).

Sunshine sought administrative review of CMS’s actions. After receiving

briefing on the issues and holding a hearing, the ALJ found that Sunshine was not in

continuous substantial compliance with conditions of participation for the six months

from November 5, 2008, until May 6, 2009. The ALJ concluded that the Medicare

statutes required the issuance of the DPNA, the termination of Sunshine’s provider

agreement, and the disapproval of Sunshine’s NATCEP. The ALJ also concluded

that the four per-instance CMPs were supported and reasonable. Sunshine sought

review by the DAB, which determined that the ALJ’s findings were supported by

substantial evidence. The DAB’s decision is the final agency decision and is subject

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to judicial review. 42 U.S.C. § 1395ff(f)(2)(A)(iv). Sunshine filed its petition for

judicial review in this court.

II. JURISDICTION
“Federal courts are ‘courts of limited jurisdiction,’ possessing ‘only that power

authorized by Constitution and statute.’” Devon Energy Prod. Co. v. Mosaic Potash

Carlsbad, Inc., 693 F.3d 1195, 1201 (10th Cir. 2012) (quoting Exxon Mobil Corp. v.

Allapattah Servs., Inc., 545 U.S. 546, 552 (2005)). As an Article III court, we have

authority to determine our subject matter jurisdiction under the statutes Congress has

enacted. Latu v. Ashcroft, 375 F.3d 1012, 1017 (10th Cir. 2004).

Federal court jurisdiction under the Medicare program is complicated.

Multiple statutes confer jurisdiction for judicial review of various Medicare

determinations, including: 42 U.S.C. § 1320a-7a(e) (authorizing judicial review of

CMPs imposed on an SNF due to noncompliance, on account of a cross-reference in

§ 1395i-3(h)(2)(B)(ii)(I)); § 1395cc(h)(1)(A) (authorizing judicial review “as is

provided in section 405(g)” of determinations that a provider was not in substantial

compliance); § 1395ff(b)(1)(A) (authorizing judicial review of Medicare Part A

benefits determinations); and § 1395oo(f)(1) (authorizing judicial review of provider

reimbursement decisions).

Sunshine originally asserted that we have jurisdiction under 42 U.S.C.

§§ 1320a-7a(e) and 1395cc(h)(1)(A) over the issues presented in its petition for

review. Pet’r’s Opening Br. at 1. Because § 1395cc(h)(1)(A) authorizes initial

judicial review of some of Sunshine’s challenges only in the district court, whereas
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§ 1320a-7a(e) and § 1395i-3(h)(2)(B)(ii) authorize initial judicial review of the

CMPs in the circuit court, we requested supplemental briefing from the parties on our

subject matter jurisdiction.

Both Sunshine and the government argue in their supplemental briefs that we

have jurisdiction over all issues in the petition for review. After further

consideration, however, we conclude that we have jurisdiction under § 1320a-7a(e) to

decide Sunshine’s challenges to the four per-instance CMPs, but we do not have

jurisdiction over its challenges to the other remedies imposed on Sunshine. Those

challenges should have been filed in a separate action in the district court under

§ 1395cc(h)(1)(A). The Supreme Court has noted that “[s]eparate statutes [from

§§ 1395cc(h)(1)(A) and 405(g)] provide for . . . judicial review of civil monetary

penalty assessments,” citing the statutes which authorize review of CMPs in the

circuit court, §§ 1395i-3(h)(2)(B)(ii) and 1320a-7a(e). Ill. Council, 529 U.S. at 8.

Before we explain these conclusions further below, we note the basic principle

that “[w]hen interpreting the language of a statute, the starting point is always the

language of the statute itself.” U.S. ex rel. Sikkenga v. Regence Bluecross Blueshield

of Utah, 472 F.3d 702, 710 (10th Cir. 2006) (internal quotation marks omitted). “If

the language is clear and unambiguous, the plain meaning of the statute controls.”

Id. (internal quotation marks omitted).

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 A. Jurisdiction Over the CMPs

One of the statutory clauses in the section governing enforcement of the

survey process as to SNFs is entitled “Authority with respect to civil money

penalties.” § 1395i-3(h)(2)(B)(ii). It authorizes the Secretary to “impose a civil

money penalty in an amount not to exceed $10,000 for each day of noncompliance.”

Id. It also provides that “[t]he provisions of section 1320a-7a of this title (other than

subsections (a) and (b)) shall apply to a civil money penalty under the previous

sentence in the same manner as such provisions apply to a penalty or proceeding

under section 1320a-7a(a) of this title.” Id. (emphasis added).

Section 1320a-7a is entitled “Civil monetary penalties,” and subsection (e) is

entitled “Review by courts of appeals.” Section 1320a-7a(e) provides, in part:

Any person adversely affected by a determination of the Secretary under
this section may obtain a review of such determination in the United
States Court of Appeals for the circuit in which the person resides, or in
which the claim was presented, by filing in such court (within sixty days
following the date the person is notified of the Secretary’s
determination) a written petition requesting that the determination be
modified or set aside. A copy of the petition shall be forthwith
transmitted by the clerk of the court to the Secretary, and thereupon the
Secretary shall file in the [c]ourt the record in the proceeding as
provided in section 2112 of Title 28. Upon such filing, the court shall
have jurisdiction of the proceeding and of the question determined
therein, and shall have the power to make and enter upon the pleadings,
testimony, and proceedings set forth in such record a decree affirming,
modifying, remanding for further consideration, or setting aside, in
whole or in part, the determination of the Secretary and enforcing the
same to the extent that such order is affirmed or modified.

42 U.S.C. § 1320a-7a(e) (footnote omitted) (emphasis added).

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 The plain language of the statute allows a circuit court to conduct initial

judicial review of CMPs. The statute further provides that, “[u]pon the filing of the

record with it, the jurisdiction of the court shall be exclusive and its judgment and

decree shall be final, except that the same shall be subject to review by the Supreme

Court of the United States, as provided in section 1254 of Title 28.” Id. Based on

the foregoing, we have exclusive jurisdiction to review the imposition of the four

per-instance CMPs on Sunshine.

B. No Jurisdiction Over Other Remedies Imposed on Sunshine

Sunshine asserts § 1395cc(h)(1)(A) as the basis for our jurisdiction over the

remaining issues—the non-CMP issues. Pet’r’s Opening Br. at 1. Section 1395cc is

entitled “Agreements with providers of services; enrollment processes,” and

subsection (h) is entitled “Dissatisfaction with determination of Secretary; appeal by

institutions or agencies; single notice and hearing.” Subparagraph (h)(1)(A) provides

for judicial review of the Secretary’s determinations as follows:

Except as provided in paragraph (2), an institution or agency dissatisfied
with a determination by the Secretary that it is not a provider of services
or with a determination described in subsection (b)(2) of this section
shall be entitled to a hearing thereon by the Secretary (after reasonable
notice) to the same extent as is provided in section 405(b) of this title,
and to judicial review of the Secretary’s final decision after such
hearing as is provided in section 405(g) of this title, except that, in so
applying such sections and in applying section 405(l) of this title
thereto, 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.

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42 U.S.C. § 1395cc(h)(1)(A) (emphasis added). The cross-referenced subsection

(b)(2) refers to the Secretary’s determination “‘that the provider fails to comply

substantially with’ statutes, agreements, or ‘regulations.’” Ill. Council, 529 U.S.

at 21 (emphasis omitted) (quoting § 1395cc(b)(2)(A)). The cross-referenced statute,

42 U.S.C. § 405(g), provides for judicial review of the Secretary’s determinations as

follows:

Any individual, after any final decision of the [Secretary of Health and
Human Services] made after a hearing to which he was a party,
irrespective of the amount in controversy, may obtain a review of such
decision by a civil action commenced within sixty days after the mailing
to him of notice of such decision or within such further time as the
[Secretary of Health and Human Services] may allow. Such action shall
be brought in the district court of the United States for the judicial
district in which the plaintiff resides, or has his principal place of
business, or, if he does not reside or have his principal place of business
within any such judicial district, in the United States District Court for
the District of Columbia. . . . The judgment of the court shall be final
except that it shall be subject to review in the same manner as a
judgment in other civil actions.

42 U.S.C. § 405(g) (emphasis added).

Section 405(g) confers initial jurisdiction under § 1395cc(h)(1)(A) on the

federal district courts for challenges to the Secretary’s determinations of

noncompliance. See Ill. Council, 529 U.S. at 20-21. Based on the plain language of

these statutes, this court does not have original jurisdiction for judicial review. It has

appellate review of the district court’s decision regarding challenges to the

Secretary’s determinations of noncompliance. See § 405(g).

* * *

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 Sections 1395cc(h)(1)(A) and 405(g) together provide for initial district court

jurisdiction over challenges to the Secretary’s determinations of noncompliance.

CMPs are based on certain types of noncompliance. Looking only at those statutes, it

therefore seems that both the CMP and non-CMP issues in this case should have been

brought initially in the district court. But § 1320a-7a(e) not only permits initial

circuit court jurisdiction over CMP challenges, it makes that jurisdiction exclusive

once the record is filed with the circuit court. Following the “elementary tenet of

statutory construction that ‘[w]here there is no clear intention otherwise, a specific

statute will not be controlled or nullified by a general one,’” United States v.

Singleton, 165 F.3d 1297, 1303, 1305 (10th Cir. 1999) (en banc) (Lucero, J.,

concurring) (alteration in original) (quoting Guidry v. Sheet Metal Workers Nat’l

Pension Fund, 493 U.S. 365, 375 (1990)) (further quotation omitted), this court has

initial jurisdiction over the CMP challenges in this case, and the district court has

initial jurisdiction over the other challenges.

C. The Parties’ Arguments for Jurisdiction Over All Issues

Sunshine and the Government both contend this court has jurisdiction over all

issues raised in Sunshine’s petition. Despite the parties’ desire for us to exercise

jurisdiction over all of the issues, “‘no action of the parties can confer subject-matter

jurisdiction upon a federal court. Thus, the consent of the parties is irrelevant.’”

Prier v. Steed, 456 F.3d 1209, 1214 (10th Cir. 2006) (alteration omitted)

(quoting Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S.

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694, 702 (1982)). “It is Congress that ‘has the constitutional authority to define the

jurisdiction of the lower federal courts, and, once the lines are drawn, limits upon

federal jurisdiction . . . must be neither disregarded nor evaded.’” Castaneda v. INS,

23 F.3d 1576, 1580 n.2 (10th Cir. 1994) (ellipsis in original) (quoting Keene Corp. v.

United States, 508 U.S. 200, 207 (1993)). We address the parties arguments in turn.

1. Broad Jurisdiction Under 42 C.F.R. § 498.90(a)(1)

In its supplemental brief, Sunshine argues that § 1320a-7a(e) confers

jurisdiction on this court over all of the issues in its petition for review because

challenges to CMPs are involved and that jurisdiction lies in the district court under

§ 1395cc(h)(1)(A) only if there are no CMP issues. See Pet’r’s Supp. Br. at 7.

Sunshine relies on a regulation providing that “[t]he Board’s decision is binding

unless–(1) The affected party has a right to judicial review and timely files a civil

action in a United States District Court or, in the case of a civil money penalty, in a

United States Court of Appeals.” 42 C.F.R. § 498.90(a)(1). Similarly, the

government also focuses on the word “or” in § 498.90(a)(1), arguing that “a civil

action must be filed in only one forum.” Resp’t’s Supp. Br. at 5. We reject these

arguments.

The parties’ interpretation of 42 C.F.R. § 498.90(a)(1) is strained. The

language reflects what the statutes provide: out of all the remedies the Secretary may

impose, Congress has specified that challenges to CMPs, not challenges to other

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noncompliance remedies, may go directly to a circuit court under 42 U.S.C. § 1320a-

7a(e).

2. Cases from Other Circuits

The parties point to cases in which other circuits exercised initial jurisdiction

over challenges to multiple types of remedies, including CMPs, but those decisions

merely cited § 1320a-7a(e) without explaining why that statute applied to all of the

remedies under review and without even mentioning § 1395cc(h)(1)(A).

See Windsor Place v. U.S. Dep’t of HHS, 649 F.3d 293, 297 (5th Cir. 2011);

Claiborne-Hughes Health Ctr. v. Sebelius, 609 F.3d 839, 842-43 (6th Cir. 2010);

Park Manor, Ltd. v. U.S. Dep’t of HHS, 495 F.3d 433, 435 (7th Cir. 2007).

We have found no decisions from this court or any other court addressing both

42 U.S.C. § 1320a-7a(e) and § 1395cc(h)(1)(A) when a CMP and other types of

remedies were imposed against a Medicare provider based on a determination of

noncompliance. We have exercised jurisdiction under § 1320a-7a(e) in three

published opinions. See St. Anthony Hosp. v. U.S. Dep’t of HHS, 309 F.3d 680,

690-91 (10th Cir. 2002); S. Valley Health Care Ctr. v. Health Care Fin. Admin.,

223 F.3d 1221, 1222 (10th Cir. 2000); Bernstein v. Sullivan, 914 F.2d 1395, 1397

(10th Cir. 1990). Each concerned only a challenge to a CMP. In addition, this court

exercised jurisdiction under § 1320a-7a(e) in unpublished, nonprecedential decisions

where an SNF challenged only a CMP. See Cox Ret. Props., Inc. v. Johnson, 323 F.

App’x 668, 669 (10th Cir. 2009); Sunset Manor, Inc. v. U.S. Dep’t of HHS, 315 F.

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App’x 97, 98 (10th Cir. 2009). None of these decisions examined the basis for this

court’s jurisdiction under § 1320a-7a(e), and no remedies were reviewed other than

CMPs.

3. Sunshine’s Alternative Arguments

Sunshine’s alternative arguments that we should take jurisdiction over the

non-CMP issues lack merit.

a. Policy Arguments

Sunshine first argues that we should read § 1320a-7a(e) broadly enough to

encompass all of its issues based on policy considerations. Policy considerations,

however, are relevant only when a statute is ambiguous, James v. Wadas, 724 F.3d

1312, 1316 (10th Cir. 2013), and Sunshine has not shown or even argued that

§ 1320a-7a(e) is ambiguous.

b. Absurdity Doctrine

Sunshine next argues we should reject the plain meaning of § 1395cc(h)(1)(A)

under the absurdity doctrine and take jurisdiction over all of its issues under

§ 1320a-7a(e). It contends that Congress could not have intended to authorize the

circuit court to have jurisdiction only over CMPs when non-CMP issues are involved

in the same case.

We have said that “where applying the plain language [of a statute] ‘would

produce an absurd and unjust result which Congress could not have intended,’ we

need not apply the language in such a fashion.” Robbins v. Chronister, 402 F.3d

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1047, 1050 (10th Cir. 2005) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S.

564, 574 (1982)). “[T]his is because ‘interpretations of a statute which would

produce absurd results are to be avoided if alternative interpretations consistent with

the legislative purpose are available.’” Id. (quoting Griffin, 458 U.S. at 575).

Sunshine, however, has not shown the plain language of the statutes produces

an absurd and unjust result, as opposed to a result it finds inconvenient. Nor has

Sunshine discussed the legislative purpose of either § 1395cc(h)(1)(A) or

§ 1320a-7a(e), as extended to SNFs by 42 U.S.C. § 1395i-3(h)(2)(B)(ii)(I), or shown

that its suggested alternative interpretation of § 1320a-7a(e) is consistent with that

purpose. As a result, Sunshine’s absurdity doctrine argument fails.

c. Pendent Appellate Jurisdiction

Finally, Sunshine asks us to exercise pendent appellate jurisdiction over its

challenges to the Secretary’s non-CMP remedies, despite the plain language of

§ 1395cc(h)(1)(A) directing initial review of such issues to the district court.

Pendent appellate jurisdiction is a “narrow” concept that does not apply to this

case. See Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th Cir. 1995)

(discussing Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 50-51 (1995)). It can be

considered only in conjunction with a nonfinal district court decision that is either

immediately appealable as a collateral order under Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541, 546 (1949), or is certified for interlocutory appeal by the

district court under 28 U.S.C. § 1292. See Swint, 514 U.S. at 41-42, 45-47; Roska ex

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rel. Roska v. Sneddon, 437 F.3d 964, 970 (10th Cir. 2006). In those circumstances,

“this court has discretion to exercise pendent appellate jurisdiction over

nonappealable issues once we have asserted jurisdiction over other appealable issues

in the same case.” Roska, 437 F.3d at 970.

Our exercise of pendent appellate jurisdiction “is generally disfavored” even if

it “might still be appropriate where the otherwise nonappealable decision is

‘inextricably intertwined’ with the appealable decision, or where review of the

nonappealable decision is ‘necessary to ensure meaningful review’ of the appealable

one.” Moore, 57 F.3d at 929-30 (quoting Swint, 514 U.S. at 51). Even then, “a

pendent appellate claim can be regarded as inextricably intertwined with a properly

reviewable claim on collateral appeal only if the pendent claim is coterminous with,

or subsumed in, the claim before the court on interlocutory appeal.” Id. at 930.

Sunshine relies on a single decision from this court where we noted that the

Supreme Court had “suggested that pendent appellate jurisdiction might still be

appropriate where the otherwise nonappealable decision is ‘inextricably intertwined’

with the appealable decision.’” Moore, 57 F.3d at 930 (quoting Swint, 514 U.S.

at 50-51). Sunshine overlooks that we exercised pendent appellate jurisdiction in

Moore in an entirely different context from this case. In Moore, we exercised

appellate jurisdiction over an interlocutory appeal from the district court’s summary

judgment denying the defendant’s assertion of qualified immunity. See id. at 927,

928-29. A co-defendant asked us to exercise pendent appellate jurisdiction over an

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issue that was not eligible for interlocutory review under the collateral order doctrine.

See id. at 929. We did so because “our disposition of [the proper interlocutory]

appeal fully resolve[d] the issues presented in the [other defendant’s] appeal.” Id.

As noted above, we have initial jurisdiction under § 1320a-7a(e) over

Sunshine’s challenges to the CMPs because Sunshine filed its petition for review in

this court. The district court has initial jurisdiction under § 1395cc(h)(1)(A) over

Sunshine’s challenges to the Secretary’s non-CMP determinations of noncompliance,

and we will have jurisdiction to review its decision if appeal is taken. The doctrine

of pendent appellate jurisdiction does not permit us to disregard the role of the

district court to decide the non-CMP issues in the first instance.

* * *

We conclude the district court has initial jurisdiction for judicial review of the

Secretary’s determinations of noncompliance under § 1395cc(h)(1), and we have

initial jurisdiction over challenges directed to the CMPs under §§ 1320a-7a(e). We

proceed to the merits of the issues over which we have initial jurisdiction.

III. CIVIL MONETARY PENALTIES
Sunshine challenges the four civil monetary penalties. CMS based the

penalties on its determinations from the February 5 and April 2, 2009 surveys that the

facility was not in substantial compliance with federal regulations and posed

immediate jeopardy or actual harm to residents. CMS imposed two $5,000 fines

based on the February 5 survey for deficiencies posing immediate jeopardy to

residents. It imposed two $2,000 fines based on the April 2 survey for deficiencies
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causing actual harm to a resident. See 42 U.S.C. § 1395i-3(h)(2)(B)(ii)(I) (“[T]he

Secretary may impose a civil money penalty in an amount not to exceed $10,000 for

each day of noncompliance.”); 42 C.F.R. § 488.430(a) (“CMS or the State may

impose a civil money penalty . . . for each instance that a facility is not in substantial

compliance, regardless of whether or not the deficiencies constitute immediate

jeopardy.”); 42 C.F.R. § 488.438(a)(2) (“When [civil money] penalties are imposed

for an instance of noncompliance, the penalties will be in the range of $1,000–

$10,000 per instance.”).

A. Standard of Review

We have previously set out in detail the standard of review applicable to a civil

monetary penalty imposed under the Medicare Act. See St. Anthony Hosp.,

309 F.3d 686, 692 & n.7. We stated that “[t]his court is not in the business of

rubber-stamping agency action.” Id. at 690 (citing Dickinson v. Zurko, 527 U.S. 150,

162 (1999)). “The applicable code provision, 42 U.S.C. § 1320a-7a(e), states that

‘[t]he findings of the Secretary with respect to questions of fact, if supported by

substantial evidence on the record considered as a whole, shall be conclusive.’” Id.

at 690-91 (quoting 42 U.S.C. § 1320a-7a(e)) (alteration in original). “This standard

requires meaningful scrutiny of the agency’s findings. Ultimately, we ask ‘whether a

reasonable mind might accept a particular evidentiary record as adequate to support a

conclusion.’” Id. at 691 (quoting Dickinson, 527 U.S. at 162). “The substantial

evidence test has been equated to review for arbitrariness or caprice.” Id. (internal

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quotation marks omitted). Agency action is arbitrary and capricious if the agency has

“entirely failed to consider an important aspect of the problem, offered an

explanation for its decision that runs counter to the evidence before the agency or . . .

is so implausible that it could not be ascribed to a difference in view or the product of

agency expertise.” Wyoming v. USDA, 661 F.3d 1209, 1227 (10th Cir. 2011)

(citation omitted) (internal quotation marks omitted).

It is not enough to affirm “when the reviewing court could find in the record

evidence which, when viewed in isolation, substantiated the Board’s findings.”

Universal Camera Corp. v. NLRB, 340 U.S. 474, 478 (1951) (examining same

statutory “substantial evidence” language as in 42 U.S.C. § 1320a-7a(e)). Substantial

evidence review requires us to “take into account whatever in the record fairly

detracts from [the] weight” of the evidence upon which the agency relied. Id. at 488.

We are not, however, allowed to “displace the [agency’s] choice between two fairly

conflicting views, even though the court would justifiably have made a different

choice had the matter been before it de novo.” Id.

“Our review [of a CMP] is also governed by [the Administrative Procedure

Act,] 5 U.S.C. § 706.” St. Anthony Hosp., 309 F.3d at 691. We have held that

[u]nder § 706(2), we may set aside agency conclusions if they are

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

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 (C) in excess of statutory jurisdiction, authority, or limitations, or short
of statutory right; [or]

(D) without observance of procedure required by law. . . .

Id. (alteration and ellipsis in original) (quoting § 706(2)(A)-(D)).

B. Review of the CMPs

1. February 5, 2009 Survey—Two Per-instance CMPs of $5,000

Two deficiencies from the February 5, 2009 survey led to two $5,000

per-instance CMPs. The ALJ upheld the two deficiencies. Sunshine Haven

Lordsburg v. CMS, ALJ No. CR2408, at HHS 33-34, 40, 2011 WL 3645721 (ALJ

Aug. 5, 2011) (hereinafter “ALJ Dec.”). The DAB agreed, noting that Sunshine

disputed the ALJ’s application of the law to the facts but did not dispute the facts

underlying the CMPs. Sunshine Haven Lordsburg, DAB No. 2456, at HHS 24, 2012

WL 1909289 (DAB Apr. 23, 2012) (hereinafter “DAB Dec.”). We briefly summarize

the facts.

a. Facts from the February 5, 2009 Survey

On January 2, 2009, an elderly male resident designated R50 for purposes of

this case assaulted his elderly girlfriend, R18, in her room, giving her a slight bloody

nose. R50 lived across the hall from R18. Sunshine knew they considered each other

boyfriend/girlfriend, but after this physical assault, Sunshine immediately took steps

to investigate and rectify the situation. This included (but was not limited to) moving

R18 to another room, attempting to transfer R50 immediately to another nursing

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home, and revising R50’s care plan to monitor his whereabouts until he could be

transferred.

Two days later, on January 4, R50 was seen in the hall kissing and fondling the

breast of another female resident, R6, who had low mental competency, was

nonverbal, and was unable to consent to sexual activity. Sunshine concluded that

R50’s actions toward R6 constituted sexual abuse and again took immediate steps to

investigate and rectify the situation. This included (but was not limited to) calling

the police, who came to Sunshine and warned R50 that he could be arrested for

felony assault and to leave the women alone. Sunshine also updated R50’s care plan

to specify 30-minute whereabouts checks.

Sunshine transferred R50 to another facility on February 5. Between

January 4 and February 5, however, Sunshine saw R50 in the hall with R18 five

times and the SA saw them together on two other occasions during a survey. On

some of these occasions, R50 was holding R18’s hand or kissing her. Each time

Sunshine found the two residents together, it separated them. R50 never encountered

R6 again, and there were no further incidents of actual abuse.

b. Regulations Applicable to SNFs

The regulations specify that each “resident has the right to be free from verbal,

sexual, physical, and mental abuse.” 42 C.F.R. § 483.13(b). SNFs “must—(i) Not

use verbal, mental, sexual, or physical abuse.” Id. § 483.13(c)(1)(i). SNFs “must

develop and implement written policies and procedures that prohibit mistreatment,

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neglect, and abuse of residents.” Id. § 483.13(c). “Abuse means the willful infliction

of injury, unreasonable confinement, intimidation, or punishment with resulting

physical harm, pain or mental anguish.” Id. § 488.301 ¶ 2. “Immediate jeopardy”

exists if the nursing home’s noncompliance “has caused or is likely to cause serious

injury, harm, impairment or death to a resident.” Id. § 488.301 ¶ 8. The scope and

severity of the facility’s noncompliance does not affect the range of per-instance

CMPs ($1,000 to $10,000). See id. § 488.438(a).

SNFs must “take reasonable steps to prevent abusive acts, regardless of their

source.” Pinehurst Healthcare & Rehab. Ctr. v. CMS, DAB No. 2246, at HHS 5,

2009 WL 1455339 (DAB Apr. 30, 2009) (internal quotation marks omitted). And

these steps must be effective. Lake Mary Health Care v. CMS, DAB No. 2081,

foll. Analysis heading 4(B), 2007 WL 1560153 (DAB May 14, 2007). The Secretary

has explained that Congress had a choice between “rule-based or outcome-based”

evaluation of nursing home performance and “concluded that the outcome-based

approach offers the better alternative to ensure quality care for nursing home

residents.” Id. “Thus, in the Omnibus Budget Reconciliation Act of 1987 . . .,

Congress moved away from checklists of actions that facilities must take toward a

central focus on the actual care received by patients, leaving facilities with flexibility

to select the most appropriate methods but the corresponding responsibility to ensure

that the selected methods are effective for achieving the outcomes specified in the

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statute and implementing regulations.” Id. (emphasis added) (citing, inter alia,

42 U.S.C. § 1395i-3).

Moreover, “[s]ubstantial compliance” is defined as “a level of compliance with

the requirements of participation such that any identified deficiencies pose no greater

risk to resident health and safety than the potential for causing minimal harm.”

42 C.F.R. § 488.301 ¶ 19 (emphasis added); see also Shalala v. Ill. Council on Long

Term Care, Inc., 529 U.S. 1, 7 (2000) (citing 42 U.S.C. § 1395i-3(h); 42 C.F.R.

§ 488.301). Read in conjunction with 42 C.F.R. § 483.13(b), the plain language of

the regulations requires SNFs to avoid the risk of or potential for abuse.

c. CMS Determinations and ALJ/DAB Review

CMS found that R50’s assault on R18 constituted physical abuse in violation

of 42 C.F.R. § 483.13(b) and (c)(1)(i). CMS further found that R50’s actions toward

R6 constituted sexual abuse in violation of the same regulations. See also SOM5

App. Q, Part IV(A) (interpreting “[f]ailure to protect from abuse” to include

“[n]onconsensual sexual interactions; e.g., . . . sexual assault”). CMS imposed two

$5,000 fines (CMPs) because Sunshine: (1) “failed to follow its care plan to check

Resident 50 every thirty minutes and to document those checks, and, as a result,

[Sunshine] failed to protect its residents after physical or sexual abuse had occurred”;

5
The “SOM” is the State Operations Manual, CMS’s manual interpreting the
Medicare regulations. See http://www.cms.gov/Regulations-and-
Guidance/Guidance/Manuals/Internet-Only-Manuals-IOMs-
Items/CMS1201984.html.

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and (2) “failed to develop and implement its policies and procedures to protect

residents after incidents of physical and sexual abuse.” ALJ Dec. at HHS 38

(citing CMS Ex. 29, at 1, 17-18, Admin. R. Vol. 7, at 2119, 2130-31).

The ALJ found that Sunshine’s “interventions were ineffective to prevent

Resident 50 from abusing Resident 6 and to prevent several subsequent instances of

Resident 50 having contact with Resident 18.” ALJ Dec. at HHS 39. The DAB

upheld this finding. DAB Dec. at HHS 23, 25.

d. Analysis of Sunshine’s Challenge

Sunshine argues the DAB improperly found that it failed to prevent the sexual

abuse of R6 after the physical assault on R18. See id. at HHS 23. We recognize the

ALJ and the DAB deviated from the reasons CMS gave for the fines. The latter did

not include Sunshine’s failure to prevent the abuse of R6. The CMS relied instead on

Sunshine’s actions—or inactions—after the R6 assault. See Admin. R. Vol. 7, at

2119, 2131. Nonetheless, we find no reversible error because the ALJ and DAB

relied on those reasons as well.

Addressing Sunshine’s alleged failure to monitor R50 after the two assaults he

committed and failure to document the monitoring, the DAB stated that “Sunshine

Haven nowhere disputes the ALJ’s findings that it did not conduct the ‘frequent’

checks of Resident 50 required by his care plan on January 2, 2009 or the 30-minute

checks required on January 4, 2009 . . . .” DAB Dec. at HHS 24. Sunshine has not

identified evidence showing it actually conducted the checks required by its revised

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care plans for R50 or that it even raised this factual issue before the DAB. Apart

from whether Sunshine waived the monitoring issue, the undisputed evidence that

R50 was repeatedly found with R18 after Sunshine revised R50’s care plans supports

the DAB’s finding that Sunshine failed to implement its plans to monitor his

whereabouts. Substantial evidence supports the resulting $5,000 CMP.

Substantial evidence also supported the DAB’s conclusion that Sunshine failed

to protect residents from abuse after R50’s two assaults. The undisputed evidence

that Sunshine repeatedly found R50 with R18 despite its plans to monitor his

whereabouts supports the DAB’s conclusion that Sunshine failed to protect R18 from

the potential for abuse. See DAB at HHS 23, 25. Sunshine does not support its

argument that R18 initiated some of these interactions. Even if she did initiate some

of these encounters, Sunshine also fails to explain how it fulfilled its obligation to

protect R18 from the potential for abuse by R50.

We conclude that substantial evidence supports the Secretary’s findings of

noncompliance underlying the two $5,000 CMPs arising from the February 5, 2009

survey. Because we affirm the two $5,000 fines, the Secretary’s disapproval of

Sunshine’s nurse aide training and competency evaluation program (NATCEP) was

proper because the disapproval of a facility’s NATCEP is mandatory when a CMP is

$5,000 or greater. 42 U.S.C. § 1395i-3(f)(2)(B)(iii)(I)(c).

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2. April 2, 2009 Survey—Two Per-instance CMPs of $2,000

CMS imposed two $2,000 CMPs based on violations of 42 C.F.R. § 483.13(c)

cited in the April 2, 2009 survey. DAB Dec. at HHS 26. Section 483.13(c) requires

SNFs to “develop and implement written policies and procedures that prohibit

mistreatment, neglect, and abuse of residents” CMS determined that Sunshine failed

“to respond properly” to ankle injuries that a 95-year-old resident, R4, reported on

March 18, 2009. DAB Dec. at HHS 26. CMS found that Sunshine violated the

regulation in two ways: (1) by failing to “assess the ankle until more than 35 hours

later . . ., after the ankle injury was again noted on a second incident report”; and (2)

by “conduct[ing] no investigation even after the second report, although its policy

required that it investigate any possible unexplained injury.” Id. at HHS 27 (internal

quotation marks omitted).

Sunshine argued to the ALJ that the February 5, 2009 survey also cited a

deficiency under § 483.13(c) and the deadline to correct that deficiency had not yet

expired as of the April 2 survey. Accordingly, Sunshine contends, CMS should not

have relied on the additional deficiencies cited under the same regulation in the

April 2 survey to impose CMPs. The ALJ noted that Sunshine failed to cite any legal

authority and rejected the argument because the deficiencies found in the February 5

and April 2 surveys were “based upon different facts.” ALJ Dec. at HHS 42.

Sunshine argued to the DAB that imposing a CMP for a “virtually identical”

deficiency under these circumstances would improperly punish the facility for the

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same conduct it was in the process of correcting. DAB Dec. at HHS 28. Sunshine

added that it was protected from the two $2,000 CMPs by a regulation governing the

facility’s quality assurance committee, which provides that “[g]ood faith attempts by

the committee to identify and correct quality deficiencies will not be used as a basis

for sanctions.” 42 C.F.R. § 483.75(o)(4).

The DAB upheld the ALJ’s conclusion that Sunshine failed to show the

additional deficiencies cited under § 483.13(c) were an improper basis for the April 2

CMPs. It concluded the evidence showed that “the deficiencies cited during the

February 5 and April 2, 2009 surveys involved different residents and different

circumstances and occurred on different dates.” DAB Dec. at HHS 28. The DAB

added that the April 2 survey cited a failure to investigate, which was not included in

the February 5 survey. Id. Finally, the DAB found that § 483.75(o)(4) was

inapplicable because it was not designed “to insulate facilities that fail to properly

care for residents during a period of correction from findings of noncompliance.”

DAB Dec. at HHS 28.

Sunshine argues again to this court that 42 C.F.R. § 483.75(o)(4) protects it

from the two $2,000 CMPs. We agree with the DAB. The regulation requires SNFs

to “maintain a quality assessment and assurance committee” that “[m]eets at least

quarterly to identify issues with respect to which quality assessment and assurance

activities are necessary.” 42 C.F.R. § 483.75(o)(1), (2)(i). The quality assurance

committee must make “[g]ood faith attempts . . . to identify and correct quality

- 29 -
deficiencies.” Id. § 483.75(o)(4) (emphasis added). But Sunshine’s quality

assurance committee did not identify the violations of § 483.13(c) cited in the

February 5 or April 2 surveys—the SA performing the surveys did.

We agree with the DAB that “[t]he purpose of [§ 483.75(o)] is to encourage

the kind of systemic actions that can improve quality of care, not to insulate facilities

that fail to properly care for residents during a period of correction from findings of

noncompliance.” DAB Dec. at HHS 28. We therefore conclude that the findings and

conclusion of noncompliance underlying the CMPs imposed based on the April 2,

2009 survey are supported by substantial evidence.

C. Sunshine’s Burden of Proof Argument
Both parties urge us to address Sunshine’s two-page argument, see Aplt.

Opening Br. at 58-60, that the DAB improperly shifted the burden of proof to

Sunshine to show substantial compliance with conditions of participation instead of

placing the burden on CMS to show that the facility was noncompliant. We agree

this issue is sufficiently connected to the CMPs as to fall within our jurisdiction

under 42 U.S.C. § 1320a-7a(e). We find the argument so superficially developed,

however, as to be waived. See Franklin Sav. Corp. v. United States, 180 F.3d 1124,

1128 n.6 (10th Cir. 1999).

The Federal Rules of Appellate Procedure require the argument section of an

appellant’s brief to “contain . . . appellant’s contentions and the reasons for them,

with citations to the authorities and parts of the record on which the appellant relies.”

Fed. R. App. 28(a)(8)(A). [W]e routinely have declined to consider arguments that
- 30 -
are not raised, or are inadequately presented, in an appellant’s opening brief.”

Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007). Sunshine asserts that the

ALJ improperly shifted the burden of proof “on the basis of numerous DAB cases

cited in [his] Decision,” but Sunshine neither cites nor discusses any cases in its

argument. Pet’r’s Opening Br. at 58. Sunshine’s cursory references to 5 U.S.C.

§ 556(d) and 42 C.F.R. § 488.301, see Pet’r’s Opening Br. at 58, 60, are inadequate

under Rule 28. We conclude Sunshine has waived its argument concerning the

burden of proof.

IV. TRANSFER OTHER ISSUES TO DISTRICT COURT
UNDER 28 U.S.C. § 1631 OR DISMISS THEM

As discussed earlier, this case presents a jurisdiction problem. Sunshine

wishes to challenge two sets of issues based on the Secretary’s determinations of

noncompliance between November 5, 2008, and May 6, 2009: (1) the CMPs (or

fines) and (2) the penalties that are not CMPs. Under 42 U.S.C. §§ 1395i-

3(h)(2)(B)(ii) and 1320a-7a(e), Sunshine may seek initial judicial review regarding

the CMPs in this court. But, under 42 U.S.C. § 1395cc(h)1)(A), it may seek review

of the non-CMP penalties only in the district court. We need not and do not decide

whether Sunshine, had it started with the district court, could have obtained review of

both sets of issues there. Instead, Sunshine petitioned this court as to both sets of

issues, vesting us with exclusive jurisdiction over the CMPs. Lacking jurisdiction

over the non-CMP issues, our options are: (1) dismiss the non-CMP issues for lack

of jurisdiction, or (2) transfer the non-CMP issues to the district court pursuant to

- 31 -
28 U.S.C. § 1631. We choose option (2) because transfer rather than dismissal of the

non-CMP issues serves “the interest of justice” under the transfer statute.

See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988)

(quoting § 1631).

Congress has authorized courts of appeals and certain other courts to transfer

cases to cure a want of jurisdiction:

Whenever a civil action is filed in a court as defined in section 610 of
this title or an appeal, including a petition for review of administrative
action, is noticed for or filed with such a court and that court finds that
there is a want of jurisdiction, the court shall, if it is in the interest of
justice, transfer such action or appeal to any other such court in which
the action or appeal could have been brought at the time it was filed or
noticed, and the action or appeal shall proceed as if it had been filed in
or noticed for the court to which it is transferred on the date upon which
it was actually filed in or noticed for the court from which it is
transferred.

28 U.S.C. § 1631. Relevant to this appeal, “the word ‘courts’ includes the courts of

appeals and district courts of the United States.” Id. § 610.

Section 1631 “permits a court to transfer a case to a court that would have had

jurisdiction on the date when the action was filed, where the transferring court lacks

jurisdiction over the case in question, and where such a transfer would be in the

interest of justice.” Berrum-Garcia v. Comfort, 390 F.3d 1158, 1162-63 (10th Cir.

2004). “Factors militating for a transfer include a finding that a new action filed by

the litigant would be barred as untimely, and a finding that the original action was

filed in good faith.” Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997)

(per curiam) (quotation omitted).

- 32 -
 Sunshine’s case would be time-barred if filed in the district court now because

an action seeking judicial review under 42 U.S.C. § 1395cc(h)(1)(A) of the

Secretary’s determinations of noncompliance must be filed within 60 days of the

Secretary’s final decision. 42 U.S.C. § 405(g). The case would have been timely,

however, if it had been filed in the district court when Sunshine filed this petition for

review. Moreover, the jurisdictional defect here is far from obvious. Three other

circuits deem the Medicare Act “among the most completely impenetrable texts

within human experience.” Rehab. Ass’n of Va., Inc. v. Kozlowski, 42 F.3d 1444,

1450 (4th Cir. 1994); accord Parra v. PacifiCare of Ariz., Inc., 715 F.3d 1146, 1150

(9th Cir. 2013); Cooper Univ. Hosp. v. Sebelius, 636 F.3d 44, 45 (3d Cir. 2010). We

have no reason to question that Sunshine brought all of its issues in its petition for

review to this court in good faith.

We have previously observed that the legislative history of § 1631 shows

congressional intent to “aid litigants who were confused about the proper forum for

review.” Coleman, 106 F.3d at 341 (quotation omitted). The Supreme Court has

noted that § 1631 “authoriz[es] transfer, inter alia, when review of agency action is

sought in the wrong federal court.” Henderson v. United States, 517 U.S. 654, 667

(1996). And “[i]n harmony with the intent of Congress, [§ 1631] has been broadly

construed since its enactment.” Ross v. Colo. Outward Bound Sch., Inc., 822 F.2d

1524, 1527 (10th Cir. 1987). In light of the foregoing, we exercise our discretion to

transfer to the district court the issues over which we lack jurisdiction.

- 33 -
 V. CONCLUSION

We deny the petition regarding the four per-instance civil monetary penalties.

We transfer the issues over which we lack jurisdiction under 42 U.S.C.

§ 1395cc(h)(1)(A), as explained above, to the United States District Court for the

District of New Mexico. We address CMS’s November 7, 2012 consent motion to

file the administrative record under seal in a separate order.

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