with whom Justice Brennan and Justice Marshall join, concurring in the judgment in part and dissenting in part.
The Medicare Act is designed to insure the elderly against the often crushing costs of medical care.1 To that end, § 1862(a)(1) of the Act guarantees payment of all expenses “reasonable and necessary for the diagnosis or treatment of *628illness or injury.”2 The Secretary has issued a formal ruling stating that she will not pay the costs of bilateral carotid body resection (BCBR) surgery performed after October 28, 1980, in order to treat pulmonary distress because for that purpose BCBR is neither medically reasonable nor necessary. 45 Fed. Reg. 71426-71427 (1980). Respondents contend that the rule was not adopted in accord with the relevant limitations on the Secretary’s authority.
The three respondents who have undergone the BCBR procedure all did so prior to October 28, 1980. The Secretary’s ruling as of that date does not prevent them from obtaining payment for BCBR, and in fact states that they may prevail if they demonstrate that they underwent the procedure in reliance on previous rulings indicating that BCBR is reimbursable.3 I agree with the Court that the Secretary’s ruling does not foreclose relief for them and that it is therefore appropriate to require them to exhaust their administrative remedies. If, after the administrative process is complete, these respondents are dissatisfied with the Secretary’s decision, they may obtain judicial review pursuant to § 205(g) of the Social Security Act.4
*629The claim of respondent Ringer, however, stands on a different footing. The complaint indicates that Ringer, “who is 68 years of age, suffers from severe, chronic obstructive airways disease, (i. e., severe emphysema), cor pulmonale and right heart strain,” and that he is eligible for Medicare benefits and needs the operation5 but cannot afford it unless the Secretary agrees to pay for it.6 App. 10-11. The Secretary, however, has formally ruled that she will not pay for it, and has taken the position that Ringer cannot challenge her ruling, except in a proceeding seeking reimbursement for the cost of the surgery. Yet precisely because Ringer cannot afford the surgery, the Secretary will not permit him to file a claim for reimbursement, since he has incurred no expense that can be reimbursed.
Today, the majority holds that Ringer must have the operation that he cannot afford and cannot obtain because of the Secretary’s ruling before he can challenge that ruling. As I understand it, the Court concludes that there is no federal-question jurisdiction over this case under 28 U. S. C. § 13317 *630because Ringer has a “claim arising under the Medicare Act,” ante, at 621, which cannot be asserted under § 1331 by virtue of § 205(h) of the Social Security Act.8 Therefore, the Court continues, jurisdiction over this case can be exercised if at all under § 205(g). Yet the Court also holds that there is no jurisdiction under § 205(g) because Ringer has not submitted a claim for reimbursement. Of course, the reason he has not filed such a claim is that there is nothing to reimburse — he has incurred no expenses because he cannot afford to do so. Without anything to reimburse, the Secretary refuses to provide a hearing on what she and the Court believe to be a nonexistent “claim.” Thus the only way Ringer can pursue his § 205(g) remedy is by doing something that the Secretary will not let him do.
Thus, it would seem, Ringer both does and does not have a claim which arises under the Medicare Act. He cannot file a claim under the Medicare Act until after he has the operation; he cannot have the operation unless he can challenge the Secretary’s ruling; and he cannot challenge that ruling except in an action seeking judicial review of the denial of a claim under the Medicare Act. This one-eyed procedural analysis frustrates the remedial intent of Congress as plainly as it frustrates this litigant’s plea for a remedy. The cruel irony is that a statute designed to help the elderly in need of medical assistance is being construed to protect from administrative absolutism only those wealthy enough to be able to afford an operation and then seek reimbursement.
*631The Court’s mistaken analysis of Ringer’s claim stems from its failure to recognize that the jurisdictional limitation in § 205(h) refers only to actions “to recover on any claim arising under this subchapter” — claims that are within the jurisdictional grant in § 205(g). Section 205(h) is simply inapplicable to a claim that cannot be asserted in an action under § 205(g), and hence does not preclude the assertion of jurisdiction over such a claim under § 1331.
I
A careful reading of the plain language of the relevant statutes indicates that the statutory scheme does not preclude jurisdiction over Ringer’s challenge to the Secretary’s ruling under 28 U. S. C. § 1331. That is because the preclu-sive provision on which the Court relies, § 205(h), simply does not apply to Ringer’s claim.9
Section 1869(a) of the Medicare Act provides that the determination whether an individual is entitled to Medicare benefits shall be made by the Secretary pursuant to prescribed regulations.10 Since the Secretary and the Court agree that Ringer has submitted no “claim” on which the Sec*632retary could have acted,11 it is perfectly clear that the Secretary has made no determination pertaining to Ringer that is covered by § 1869(a).12 Section 1869(b)(1)(C) states that an individual “dissatisfied with any determination made under subsection (a)” is entitled to the kind of hearing authorized by § 205(b) of Title II of the Social Security Act, and to judicial review as prescribed in § 205(g) of that Title.13 Since there has been no “determination” in this case, this provision does not apply to Ringer either.14
We come then to § 1872, which in relevant part provides that § 205(h) shall “apply with respect to this subchapter to the same extent as [it is] applicable with respect to sub-chapter II of this chapter.”15 Nowhere in this reticulated *633statutory scheme is there any requirement that every “question” arising under the Medicare Act must be litigated in an action brought under § 205(g). Quite the contrary § 1872 applies §205(h) to “this subchapter,” i. e., to the provisions concerning reimbursement determinations contained in § 1869. Yet not one of the provisions in that section is relevant to Ringer. Ringer’s claim is not the type of claim covered by “this subchapter,” since the subchapter applies only to the type of hearing provided for in § 205(b). What Ringer seeks is not the type of hearing provided for in § 205(b), which would arise under “this subchapter,” but instead an action under the right-of-review provisions of the Administrative Procedure Act (APA), 5 U. S. C. §§701-706.16 Hence 28 U. S. C. § 1331 provides jurisdiction to entertain such a claim. See Califano v. Sanders, 430 U. S. 99 (1977).
This analysis is confirmed by Weinberger v. Salfi, 422 U. S. 749 (1975). In that case, on which the majority relies so heavily, the Court held that when a claimant seeks payment of benefits under the Social Security Act, his claim “arises under” that Act within the meaning of § 205(h) and hence may not be brought pursuant to 28 U. S. C. § 1331.17 The obvious difference between this case and Salfi is that Salfi had a claim which could be raised under §§ 205(b) and (g); indeed the Court upheld the exercise of jurisdiction over that case under § 205(g). See 422 U. S., at 763-767. Salfi *634therefore had a “claim” under the Social Security Act, and fell within the literal language of § 205(h) because he had filed an application for payment of benefits; review of the decision on such an application falls within the preclusive provisions of § 205(h):
“The entitlement sections of the Act specify the filing of an application as a prerequisite to entitlement, so a court could not in any event award benefits absent an application. . . . Once the application is filed, it is either approved, in which event any suit for benefits would be mooted, or it is denied. Even if the denial is nonfinal, it is still a ‘decision of the Secretary’ which, by virtue of the second sentence of § [2]05(h), may not be reviewed save pursuant to §[2]05(g).” 422 U. S., at 759, n. 6.
Thus, what Salfi holds is that § 205(h) “precludes federal-question jurisdiction in an action challenging denial of claimed benefits.” Mathews v. Eldridge, 424 U. S. 319, 327 (1976).
In contrast to Salfi, Ringer has no “claim” within the meaning of the Social Security Act — because he is unable to have the operation, he cannot file an application for reimbursement and no “decision of the Secretary” has been made denying such a claim18 which could fall under § 205(h). Hence he *635does not fall within the preclusive language of § 205(h), which requires the existence of a “claim arising under the Social Security Act. ” Section 205(h) cannot operate in this context as it was intended — “to route review through § 205(g).” Sanders, 430 U. S., at 103, n. 3. It thus simply has no application. Because Ringer cannot afford the operation and obtain judicial review under the relevant provisions of the Medicare Act, he has no “claim” that “arises under” that Act and is unable to generate one.19
There is yet another fundamental reason why § 205(h) does not preclude Ringer’s claim. Section 205(h) precludes only actions “to recover” on a claim arising under the Social Security Act. That language plainly refers to an action in which the claimant seeks payment of benefits. Indeed, as I ob*636served above, Salfi stressed that the claimant in that case sought the payment of benefits.20 Today’s majority finds § 205(h) applicable because Ringer “is clearly seeking to establish a right to future payments should he ultimately decide to proceed with BCBR surgery.” Ante, at 621. If Ringer were seeking payment of benefits, this might well be a different case, but that is plainly not what he seeks. Ringer seeks a declaration that the Secretary’s BCBR rule is invalid and an injunction against its operation. He alleges that it is the “irrefutable presumption” contained in the rule — which denies administrative law judges discretion to decide in a hearing under § 205(b) whether BCBR is reimbursable — that prevents him from having the operation.21 Ringer disavows any desire to obtain a judicial determination that benefits must be paid to him. Brief for Respondents 6-7. Thus, Ringer is not seeking “to recover.” Instead he seeks an injunction against this “irrefutable presumption.” Such an injunction would not result in the payment of benefits, but merely remove the hurdle to his having the operation, since under those circumstances his physician would have some hope of obtaining reimbursement through the administrative process.22
“Unlike the plaintiff in [Salfi], whose action was the run-of-mine type clearly fitting the language ‘to recover *637on any claim arising under’ Title II, the plaintiff in this case. . . raises only a procedural challenge, the adjudication of which will not affect the substantive question of continued entitlement to [Medicare] benefits.” Ellis v. Blum, 643 F. 2d 68, 82 (CA2 1981) (Friendly, J.).23
Ringer is not seeking to “bypass the exhaustion requirements of the Medicare Act,” ante, at 621, but rather to be able to exhaust — something he can only do if the rule is enjoined so that he and his surgeon can seek reimbursement through the administrative process.24 Ringer’s challenge to the operation of a rule that prevents him from having a “claim” he can pursue under §205 is therefore not a claim covered by § 205(h) — it is a challenge to a procedural rule that could prove meritorious even if Ringer is ultimately not entitled to reimbursement. Hence it can be asserted under § 1331.
II
Unfortunately the majority’s errors in this case are not limited to its construction of § 205(h). For even if we assume that § 205(h) is applicable to Ringer’s case, and that he can obtain judicial review only through § 205(g), the majority’s disposition would still be incorrect.
*638Section 205(g) contains three jurisdictional prerequisites to judicial review: a “[1] final [2] decision of the Secretary [3] made after a hearing . . . .’25 In Salfi, the Court decided that the first and third elements are “waivable” upon an appropriate showing, whereas the second element is non-waivable and must be satisfied in all cases before judicial review may be obtained. See 422 U. S., at 764-767.
Ringer has plainly satisfied the nonwaivable element. While “some decision by the Secretary is clearly required by the statute,” Mathews v. Eldridge, 424 U. S., at 328,26 the Secretary has made a decision here. By issuing the challenged BCBR regulation, she decided that BCBR can in no event be reimbursable. If that is not a “decision of the Secretary,” I do not know what is. The fact that Ringer himself has not raised his legal arguments concerning the BCBR regulation in the administrative process is irrelevant, as Eldridge makes clear. There, the claimant did not raise his constitutional challenge to procedures the Secretary had adopted by regulation in the administrative process, yet the Court held that the nonwaivable element had been satisfied since the Secretary had already made clear what his “decision” was with respect to Eldridge’s challenge through the issuance of the disputed regulations: “It is unrealistic to expect that the Secretary would consider substantial changes in the current administrative review system at the behest of a single aid recipient raising a constitutional challenge in an adjudicatory context.” Id., at 330. It is similarly unrealistic to think that the Secretary would reconsider her BCBR regulation in the context of a single adjudicatory pro*639ceeding. The regulation was issued to prevent claimants from litigating the reimbursability of BCBR in an adjudicatory context. Thus, the relevant decision of the Secretary here could not be any decision made in the administrative process; rather it is the decision to issue the BCBR regulation. That “decision of the Secretary” satisfies the non-waivable portion of § 205(g).27
The waivable elements are satisfied as well. In Salfi, the Court held that waiver was appropriate when there is no chance that the claimant could prevail in the administrative process. In such circumstances, “further exhaustion would not merely be futile for the applicant, but would also be a commitment of administrative resources unsupported by any administrative or judicial interest.” 422 U. S., at 765-766.28 Here, just as in Salfi, “a hearing [would] be futile and wasteful.” Id., at 767.29 The Secretary has stipulated that if *640Ringer had the operation and filed a claim for reimbursement, it would be denied under the BCBR regulation. App. 32. Since the Secretary “stipulated in the District Court that [Ringer]’s application would be denied ... we treat the stipulation in the District Court as tantamount to a decision denying the application and as a waiver of the exhaustion requirements.” Mathews v. Diaz, 426 U. S. 67, 76-77 (1976). Requiring the administrative process to be invoked so it can be determined whether applications such as Ringer’s could also be denied on some other ground would simply be “a commitment of administrative resources unsupported by any administrative or judicial interest,” especially since Ringer is not seeking the payment of benefits at this juncture. When a case is ripe for summary judgment because of a dispositive legal question, we do not require district courts to hold a trial anyway to determine if the complaint might be meritless on some other ground. It makes no more sense to impose such a requirement in the context of § 205(g).30 Indeed, in light of the dispositive rule, there is no reason to believe that the Secretary would waste her resources by holding a hearing to see if Ringer’s claim could be denied on some other ground, and the Secretary has not represented that such a hearing in fact would be held.
Moreover, even if a claim such as Ringer’s should ordinarily be exhausted, the waivable element is satisfied when there is a “colorable claim” that the claimant will be injured if forced to exhaust in a way that cannot be remedied by later payment of benefits. Ante, at 617-618. Ringer clearly has such a claim. He suffers from serious pulmonary distress, and represents that if he does not get BCBR he faces a risk *641of continued deterioration in his health, and even death.31 Surely, the injury Ringer faces while awaiting judicial review — which on the majority’s view he in any event can never obtain because of his inability to afford the operation— constitutes a collateral injury not remedied even if Ringer somehow could exhaust his administrative “remedy.”
“To allow a serious illness to go untreated until it requires emergency hospitalization is to subject the sufferer to the danger of a substantial and irrevocable deterioration in his health. Cancer, heart disease, or respiratory illness, if untreated for a year, may become all but irreversible paths to pain, disability, and even loss of life. The denial of medical care is all the more cruel in this context, falling as it does on indigents who are often without the means to obtain alternative treatment.” Memorial Hospital v. Maricopa County, 415 U. S. 250, 261 (1974) (footnote omitted).
Thus, Ringer “has raised at least a colorable claim that because of his physical condition and dependency on [Medicare] benefits, an erroneous termination would damage him in a way not recompensable through retroactive payments.” Eldridge, 424 U. S., at 331 (footnote omitted). Ringer should be permitted to challenge the BCBR rule which causes this injury without satisfying the waivable requirements of § 205(g).32
*642Thus, jurisdiction over this case is appropriate under § 205(g). The Secretary has surely made a “decision” on BCBR within the meaning of that statute, and to require further pursuit of adjudicatory remedies when the purpose of the challenged rule is to preclude adjudication is a potentially tragic exercise in futility.
III
The Court’s inability to find a jurisdictional basis for Ringer’s challenge to the Secretary’s formal ruling stems in part from a concern that the Secretary and the federal courts would otherwise be flooded by requests for advisory opinions by individuals contemplating various forms of medical treatment. There is no need to evaluate this purely hypothetical concern because this case presents no question concerning Ringer’s “right” to an advisory opinion or the Secretary’s “duty” to provide one. We may assume that the Secretary is under no duty to volunteer an opinion on the reimbursability of a given procedure and yet sustain Ringer’s claim. The reason is simple — the Secretary has already issued an advisory opinion on BCBR. That is exactly what her BCBR regulation is. The regulation was specifically designed to prevent this issue from arising in a concrete adjudicatory context. Indeed, her ruling is far more significant than mere advice; it is a formal pronouncement directing the bureaucracy under her command to reject all claims for reimbursement for BCBR surgery, despite the uniform course of decision by a variety of Administrative Law Judges, as well as the Secretary’s Appeals Council, that such claims qualify for reimbursement. Thus, this is not a case concerning a “right” to an advisory opinion. Rather, this case poses the question whether, once the Secretary issues a rule which has the effect of denying a Medicare beneficiary surgery, that beneficiary may obtain judicial review as to the validity of the rule.33 I see no reason why that question should be an*643swered negatively. Medicare beneficiaries can obtain judicial review of all of the Secretary’s adjudicatory decisions that deny them benefits; I am certain that Congress did not intend to preclude judicial review of the Secretary’s legislative decisions which have the same effect.34
C
The majority has decided that it is proper to prevent a citizen from ever challenging a rule which denies him surgery he desperately needs. Ringer cannot afford the operation and therefore his “claim” can never be “pursued” in a reimbursement proceeding. In making this decision, the Court ignores a basic proposition of administrative law. What Justice Harlan wrote for the Court in Abbott Laboratories v. Gardner, 387 U. S. 136 (1967), illustrates the point:
*644“The first question we consider is whether Congress by the Federal Food, Drug, and Cosmetic Act intended to forbid pre-enforcement review of this sort of regulation promulgated by the Commissioner. The question is phrased in terms of ‘prohibition’ rather than ‘authorization’ because a survey of our cases shows that judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress. Early cases in which this type of judicial review was entertained, have been reinforced by the enactment of the Administrative Procedure Act, which embodies the basic presumption of judicial review to one ‘suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute,’ 5 U. S. C. § 702, so long as no statute precludes such relief or the action is not one committed by law to agency discretion, 5 U. S. C. § 701(a). The Administrative Procedure Act provides specifically not only for review of ‘[ajgency action made reviewable by statute’ but also for review of ‘final agency action for which there is no other adequate remedy in a court,’ 5 U. S. C. § 704. The legislative material elucidating that seminal act manifests a congressional intention that it cover a broad spectrum of administrative actions, and this Court has echoed that theme by noting that the Administrative Procedure Act’s ‘generous review provisions’ must be given a ‘hospitable’ interpretation. Again in Rusk v. Cort, [369 U. S. 367, 379-380 (1967)], the Court held that only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.” Id., at 139-141 (citations omitted).
As Justice Harlan indicated, Abbott is but one in a long line of cases holding that nothing less than clear and convincing *645evidence of legislative intent to preclude judicial review is required before a statute will be construed to preclude the citizen’s right to seek judicial redress for violations of his rights.35 Salfi itself applied this presumption to the Social Security Act, and construed § 205(h) to preclude judicial review in that case only because review was available under § 205(g). 422 U. S., at 762. In our system of government under law, administrative absolutism is not the rule, but only the narrow exception.
In this case Ringer, whose only sin is that he is unable to afford BCBR surgery, is denied access to any judicial review of what we must take to be a rule that violates the Secretary’s statutory duty to assure reimbursement of necessary and reasonable medical expenses under a health insurance program. Because he cannot afford the surgery, he will never be able to seek administrative or judicial review.
“Here . . . ‘absence of jurisdiction of the federal courts’ would mean ‘a sacrifice or obliteration of a right which Congress has given ... for there is no other means, within [Ringer’s] control, to protect and enforce that right. And ‘the inference [is] strong that Congress intended the statutory provisions governing the general jurisdiction of those courts to control.’ This Court cannot lightly infer that Congress does not intend judicial protection of rights it confers against agency action taken in excess of delegated powers.” Leedom v. Kyne, *646358 U. S. 184, 190 (1958) (citations omitted) (quoting Switchmen v. National Mediation Board, 320 U. S. 297, 300 (1943)).
When the issue is properly phrased in terms of whether there is clear and convincing evidence that Congress intended to preclude judicial review of such a case, it is essential to remember that the entire statutory scheme was enacted for the benefit of the aged, the infirm, and the impoverished. It was the medically needy that Congress sought to aid through the provision of health insurance under the Medicare program. Yet those most in need of comprehensive medical insurance are those with the least ability to assert their statutory right to such insurance under the majority’s approach. In telling Ringer that “he must pursue his claim” under § 205(g), the Court indicates that he will have the “right” to judicial review only if he can pay for it — and he cannot.
“To sanction such a ruthless consequence . . . would justify a latter-day Anatole France to add one more item to his ironic comments on the ‘majestic equality’ of the law. ‘The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’” Griffin v. Illinois, 351 U. S. 12, 23 (1956) (Frankfurter, J., concurring in judgment).
On the majority’s view it would appear the rich and the poor alike also have the right to front the money for major surgery. I cannot believe that is what Congress intended, or what our precedents require.
Of course, the integrity of the administrative exhaustion mechanism created by Congress is vital, and the Act should not be construed in a way that would undermine that system. But all Ringer seeks to do is challenge a rule that prevents him from having the operation and then seeking reimbursement through the statutory review system. It is not Ringer who is bypassing the administrative review system, but the *647Secretary, whose BCBR rule prevents persons such as Ringer from seeking administrative review of a concrete claim for benefits. I can find no evidence, much less clear and convincing evidence, that Congress intended to prohibit judicial review in these circumstances.
Ringer does not seek payment of benefits under the Medicare Act, but rather to challenge a rule that prevents him from ever filing a claim for reimbursement under that Act. Therefore I would hold that Ringer is not seeking “to recover on a claim” under the Social Security Act, and hence federal jurisdiction over his claim is not barred by § 205(h) of that Act. Moreover, even if § 205(h) applied here, I would not require Ringer to pursue administrative review which is manifestly futile. Accordingly, while I concur in the Court’s disposition of the claims asserted by the respondents who have had BCBR surgery, I respectfully dissent from its disposition of respondent Ringer’s claim.
See, e. g., H. R. Rep. No. 213, 89th Cong., 1st Sess., 20-22, 63-64 (1965); S. Rep. No. 404, 89th Cong., 1st Sess., 73-74 (1965).
“Notwithstanding any other provision of this subchapter, no payment may be made under part A or part B for any expenses incurred for items or services—
“(1) which are not reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member,” 42 U. S. C. § 1395y(a)(l).
“As explained above, we have previously issued [a] policy in manual instructions excluding this service from Medicare coverage. However, since [Administrative Law Judges] and the Appeals Council have ruled in several cases that claims for these services are payable, it is possible that some beneficiaries, relying on these rulings, have proceeded to have the operation performed in expectation of Medicare payment. In fairness to those beneficiaries, we are making the ruling effective for services furnished after the date of publication.” 45 Fed. Reg. 71427 (1980).
In pertinent part that section provides:
“(g) Judicial review
“Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, *629may 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 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. ” 42 U. S. C. § 405(g).
The Secretary stipulated that each of the respondents would testify that he has been diagnosed as suffering from severe lung disease, that each has experienced severe breathing difficulties as a symptom of his or her illness, and that BCBR surgery has been prescribed to alleviate the symptoms of their lung diseases. The respondents are all Medicare beneficiaries eligible for statutory benefits. App. 32.
The Secretary stipulated that Ringer will testify that he has had prescribed and desires to undergo BCBR surgery but is unable to pay the cost thereof. Ibid.
That section provides: “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”
That subsection provides:
“Finality of Secretary’s decision
“The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under sections 1331 or 1346 of title 28 to recover on any claim arising under this subchapter.” 42 U. S. C. § 405(h).
The Court’s analysis is confined to the question whether Ringer’s action is one “arising under” the Medicare Act; it never attempts to construe the immediately preceding words in § 205(h): “any claim to recover." See ante, at 621-624. The majority thereby is able to attack a straw man, since by focusing only on the words “arising under” it avoids the question of how Ringer can have “any claim to recover arising under” that Act when he cannot submit any claim for Medicare benefits because he cannot afford the operation. Since Ringer cannot have the operation and is not seeking reimbursement, he has nothing on which he can recover. When the statute is read as a whole the flaw in the Court’s analysis becomes apparent.
Section 1869(a) provides:
“Entitlement to and amount of benefits
“The determination of whether an individual is entitled to benefits under part A or part B, and the determination of the amount of benefits under part A, shall be made by the Secretary in accordance with regulations prescribed by him.” 42 U. S. C. § 1395ff(a).
See ante, at 622; Brief for Petitioner 37.
In fact, Ringer wrote the Secretary a letter seeking such a determination but was told that no determination could be made unless he had the surgery and then sought reimbursement. Respondent Vescio also could not afford the operation. Eventually her condition deteriorated to the point where her physician agreed to operate without any assurance of payment. Ms. Vescio died a little more than a year after the operation. Brief for Respondents 9, and n. 10.
“(1) Any individual dissatisfied with any determination under subsection (a) of this section as to—
“(C) the amount of benefits under part A (including a determination where such amount is determined to be zero)
“shall be entitled to a hearing thereon by the Secretary 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.” 42 U. S. C. § 1395ff(b)(l)(C).
This is made even clearer by the fact that § 1869(b)(1)(C) also provides for the applicant’s right to an administrative hearing as provided by § 205(b) and “to judicial review of the Secretary's final decision after such hearing as is provided in § [2]05(g).” Because Ringer’s action is not such a challenge, the provisions of § 1869 have no application here.
Section 1872 reads as follows:
“The provisions of sections 406 and 416(j) of this title, and of subsections (a), (d), (e), (f), (h), (i), (j), (k), and (1) of section 405 of this title, shall also apply with respect to this subchapter to the same extent as they are applicable with respect to subehapter II of this chapter.” 42 U. S. C. § 1395Ü.
In particular, the APA provides:
“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. ...” 5 U. S. C. § 702.
“Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. . . .” §704.
It should be noted that the portion of Salfi on which the majority relies is dicta. Since the Court held that it had jurisdiction over that case under § 205(g), its discussion of the preclusive effect of § 205(h) was unnecessary to the decision in that case. See 422 U. S., at 787-788 (Brennan, J., dissenting).
The Solicitor General makes this point very clearly:
“As typically is the case in insurance programs generally, a claim may be filed under Medicare (thereby invoking the administrative process that must precede the right to judicial review under 42 U. S. C. 405(g)) only after the individual has been furnished the services for which payment is sought. See 42 U. S. C. (& Supp. V) 1395c, 1395d(a), 1395f(a), 1395ff(b) and 405(b); 42 CFR 405.1662-405.1667. Congress obviously appreciated that the task of administering the Medicare Program would be burdensome enough with the processing of concrete claims for services already rendered, without also providing for a scheme by which an individual could obtain a declaratory ruling on whether certain services would be covered should the individual elect to obtain them in the future.” Brief for Petitioner 37, n. 26 (emphasis in original).
There is a wealth of authority in the lower courts for the proposition that when the Social Security Act provides no avenue for review, there is no claim arising under that Act within the meaning of § 205(h) and hence no bar to jurisdiction under 28 U. S. C. § 1331. See National Assn. of Home Health Agencies v. Schweiker, 223 U. S. App. D. C. 209, 217-218, 690 F. 2d 932, 940-942 (1982), cert. denied, 459 U. S. 1205 (1983); Chelsea Community Hospital, SNF v. Michigan Blue Cross Assn., 630 F. 2d 1131, 1133-1136 (CA6 1980); Humana of South Carolina, Inc. v. Califano, 191 U. S. App. D. C. 368, 374-375, 590 F. 2d 1070, 1076-1077 (1978); Overlook Nursing Home, Inc. v. United States, 214 Ct. Cl. 60, 64-65, 556 F. 2d 500, 502 (1977); Hazelwood Chronic & Convalescent Hospital, Inc. v. Weinberger, 543 F. 2d 703, 706-707 (CA9 1976); Whitecliff, Inc. v. United States, 210 Ct. Cl. 53, 56-59, 536 F. 2d 347, 350-351 (1976), cert. denied, 430 U. S. 969 (1977); Rothman v. Hospital Service of Southern California, 510 F. 2d 956, 958-959 (CA9 1975); Kingsbrook Jewish Medical Center v. Richardson, 486 F. 2d 663, 666-668 (CA2 1973); Mid Atlantic Nephrology Center, Ltd. v. Califano, 433 F. Supp. 23, 31-32 (Md. 1977); Hillside Community Hospital of Ukiah v. Mathews, 423 F. Supp. 1168, 1172-1173 (ND Cal. 1976); Americana Nursing Centers, Inc. v. Weinberger, 387 F. Supp. 1116, 1118 (SD Ill. 1975); Mount Sinai Hospital of Greater Miami, Inc. v. Weinberger, 376 F. Supp. 1099, 1005-1108 (SD Fla. 1974), rev’d on other grounds, 517 F. 2d 329 (CA5 1975), modified, 522 F. 2d 179, cert. denied, 425 U. S. 935 (1976); Gainville v. Richardson, 319 F. Supp. 16, 18 (Mass. 1970) (three-judge court).
See supra, at 633-635. See also 422 U. S., at 760-761.
App. 10-11. See also Brief for Respondents 9, 26-29.
In this connection, it must be remembered that surgeons have had remarkable success in winning cases before Administrative Law Judges concerning BCBR surgery. The parties stipulated that as of the date the BCBR regulation was issued, at least 199 appeals of denials of Medicare reimbursement for BCBR surgery had been heard by Administrative Law Judges. Of these, reimbursement was ordered in at least 170 cases, and at least 12 cases were dismissed as premature. Decisions ordering reimbursement had been rendered by at least 10 different Administrative Law Judges and the three judges of the Secretary’s Appeals Council. App. 32. It was this success which led to the promulgation of the challenged rule.
See National Assn. of Home Health Agencies v. Schweiker, 223 U. S. App. D. C., at 213-214, 690 F. 2d, at 936-937; Humana of South Carolina, Inc. v. Califano, 191 U. S. App. D. C., at 378-379, 590 F. 2d, at 1080-1081; Mid Atlantic Nephrology Center, Ltd. v. Califano, 433 F. Supp., at 31-32; Gainville v. Richardson, 319 F. Supp., at 18 (three-judge court). See also Griffin v. Richardson, 346 F. Supp. 1226, 1230 (Md.) (three-judge court), summarily aff’d, 409 U. S. 1069 (1972).
As a result, the majority’s statement that “Ringer has not given the Secretary an opportunity to rule on a concrete claim for reimbursement,” ante, at 622, has a somewhat callous tone. Ringer would like nothing more than to give the Secretary that opportunity. It is the challenged rule which prevents Ringer from having the operation and giving the Secretary “an opportunity” to rule on his claim for reimbursement.
See n. 4, supra. Section 205(g) also contains a statute of limitations and a venue requirement. “As such, they are waivable by the parties, and not having been timely raised below, see Fed. Rules Civ. Proc. 8(c), 12(h)(1), need not be considered here.” 422 U. S., at 764.
See also Heckler v. Lopez, 464 U. S. 879, 883 (1983) (Stevens, J., dissenting in part) (on motion to vacate stay); Schweiker v. Wilson, 450 U. S. 221, 228, n. 8 (1981); Califano v. Sanders, 430 U. S. 99, 108 (1977).
Thus, the majority’s characterization of the nonwaivable requirement as “presenting a claim for reimbursement” to the Secretary, ante, at 617, is not quite correct. What the plain language of the statute requires is not “presentment” of a “claim for reimbursment” — those words appear nowhere in § 205(g). Rather, what the statute requires is a “decision of the Secretary.” As for the language in Eldridge on which the majority relies, it is most sensibly read not as indicating that the statute says something that it manifestly does not, but rather that the usual (but not necessarily the only) means for obtaining a “decision of the Secretary” is the filing of an application for benefits.
While Salfi contains language suggesting that only the Secretary can decide whether the finality and hearing elements of § 205(g) should be waived, subsequent cases have made clear that when no purpose would be served by requiring further exhaustion, deference to the Secretary’s judgment as to waiver would be inappropriate and the waivable elements may be satisfied over the Secretary’s objection because of futility. See Mathews v. Diaz, 426 U. S. 67, 76-77 (1976); Eldridge, 424 U. S., at 330. See also ante, at 617-619; Heckler v. Lopez, 464 U. S., at 883 (Stevens, J., dissenting in part) (on motion to vacate stay).
See also Califano v. Goldfarb, 430 U. S. 199, 203, n. 3 (1977); Mathews v. Diaz, 426 U. S., at 76-77; Weinberger v. Wiesenfeld, 420 U. S. 636, 641, n. 8 (1975).
See, e. g., Kuehner v. Schweiker, 717 F. 2d 813, 817-818 (CA3 1983); Jones v. Califano, 576 F. 2d 12, 18-19 (CA2 1978); Liberty Alliance of the Blind v. Califano, 568 F. 2d 333, 346 (CA3 1977); De Lao v. Califano, 560 F. 2d 1384, 1388 (CA9 1977); Fitzgerald v. Schweiker, 538 F. Supp. 992, 997-999 (Md. 1982); Kennedy v. Harris, 87 F. R. D. 372 (SD Cal. 1980).
One of the original plaintiffs in the District Court, Ernie M. Haley, was, like Ringer, unable to afford the operation and died while awaiting BCBR. Brief for Respondents 9. Thus, the risk Ringer faces because of his inability to obtain judicial review at this juncture is far from speculative.
Cf. Eldridge, 424 U. S., at 331, n. 11 (“the core principle that statutorily created finality requirements should, if possible, be construed so as not to cause crucial collateral claims to be lost and potentially irreparable injuries to be suffered remains applicable [to § 205(g)]”).
The majority argues that the logic of my position applies to any person who wishes to obtain an advisory opinion from the Secretary. Ante, at *643624-626. It does not. If a surgeon thinks that a given procedure is medically necessary and reasonable, he should be confident of his ability to convince an administrative law judge of exactly that, and therefore will provide the operation with the expectation of receiving reimbursement after the fact through the administrative process. Indeed that is the way that most surgery is in fact provided under Medicare; the surgeon does not require prepayment precisely because he is confident he will be reimbursed. That is certainly true here — Ringer’s surgeon would provide the surgery if he were given an opportunity to obtain a hearing after the fact. My position only applies to persons who are unable to obtain a hearing because the Secretary has pre-empted the administrative process. That is the effect of her BCBR rule, and why it is meaningless to speak of Ringer “pursuing” his administrative remedies.
The majority’s fear of a flood of Medicare actions seeking advisory opinions is put into perspective by the fact that not a single lawsuit was filed seeking an advisory determination as to the reimbursability of BCBR until the Secretary issued the challenged regulation. The reason is simple enough — at that point persons like Ringer had access to an administrative remedy. Jurisdiction over Ringer’s claim would not increase the volume of Social Security Act litigation; rather, it would simply enable persons aggrieved by the Secretary’s legislative rulings to obtain the judicial review that they otherwise would have been able to obtain following an adjudicative proceeding. Moreover, it appears that actions like Ringer’s would be relative rarities. The Secretary’s decision to pre-empt the administrative process with respect to BCBR appears to be highly unusual.
See, e. g., Southern R. Co. v. Seaboard Allied Milling Corp., 442 U. S. 444, 454, 462 (1979); Morris v. Gressette, 432 U. S. 491, 500-501 (1977); Dunlop v. Bachowski, 421 U. S. 560, 567-568 (1975); Johnson v. Robison, 415 U. S. 361, 373-374 (1974); Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 410 (1971); Tooahnippah v. Hickel, 397 U. S. 598, 605-606 (1970); Barlow v. Collins, 397 U. S. 159, 166-167 (1970); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150, 156-157 (1970); Brownell v. Tom We Shung, 352 U. S. 180, 185 (1956); Heikkila v. Barber, 345 U. S. 229, 232 (1953).