concurring in part, dissenting in part.
The “private cause of action” which is the subject of this appeal is one seeking judicial review of certain action and failure to act by the Secretary. It seems to me that both Claim 4 and Claim 6, against the Secretary, must be analyzed in those terms.
In making this analysis, I find little help in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) or Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). These decisions dealt with the question whether a federal statute expressly prohibiting conduct implies a federal cause of action against one who engages in the forbidden conduct and in favor of one who has been injured by it. That is not our case on this appeal.
As Judge Cummings points out, Claim 4 was originally directed at the Secretary’s failure to adopt a regulation in response to the 1975 amendments. Since the adoption of the regulation, Claim 4 has been converted to a challenge to its adequacy, particularly concerning hearing procedures.
Unlike instances where a statute creates an entitlement and the administrator denies a claim of entitlement without affording due process, the Secretary’s regulation, implementing the statute, creates the entitlement, but is alleged to permit the hospitals to deny without affording due process.
Claim 4 in substance seeks judicial review of a regulation alleged to be an inadequate performance of an administrator’s statutory duty. I can agree with the opinion <5f the Court that in the light of the history of this case, it was unnecessary for the plaintiff to petition the Secretary for an amendment before asserting the deficiency in court.
I can further agree that plaintiffs have shown sufficient standing to seek judicial review of the regulation with respect to the adequacy of hearing procedures, and that it is appropriate to return the matter to the district court to determine such adequacy.
Claim 6 seeks judicial review of the Secretary’s failure to take compliance and enforcement action required by the statute.
An administrator’s duty to enforce is ordinarily highly discretionary, and for that reason his choices with respect to enforcement are not ordinarily subject to judicial review. See 5 U.S.C. § 701(a)(2); Davis, Administrative Law Treatise, § 29.16. A court does, however, have power to review “agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). See Caswell v. Califano, 583 F.2d 9 (1st Cir. *481978); Cannon v. University of Chicago, 559 F.2d 1063, 1077 (7th Cir. 1976), rev’d on other grounds 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); Poirrier v. St. James Parish Police Jury, 531 F.2d 316 (5th Cir. 1976), rehearing denied 537 F.2d 840 (1976), adopting 372 F.Supp. 1021 (E.D.La.1974). Claim 6(b) through (d) alleges that the Secretary has failed to carry out the monitoring of assurances required by 42 U.S.C. § 300p-2(c). She has no discretion to decide whether or not to comply with that section.
In my opinion, dismissal of Claim 6 was also inappropriate, and plaintiffs should have the opportunity to prove their claim of total failure to perform specific statutory duties.