United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 13, 2011 Decided February 7, 2012

No. 11-5076

BRIAN HALL, ET AL.,

APPELLANTS

v.

KATHLEEN SEBELIUS, SECRETARY OF THE UNITED STATES 

DEPARTMENT OF HEALTH AND HUMAN SERVICES, AND 

MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL 

SECURITY ADMINISTRATION,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-01715)

Kent M. Brown argued the cause for appellants. With 

him on the briefs was Frank M. Northam.

Samantha L. Chaifetz, Attorney, U.S. Department of 

Justice, argued the cause for appellees. With her on the brief 

were Tony West, Assistant Attorney General, Ronald C. 

Machen Jr., U.S. Attorney, Beth S. Brinkmann, Deputy 

Assistant Attorney General, and Mark B. Stern, Attorney. R. 

Craig Lawrence, Assistant U.S. Attorney, entered an 

appearance. 
2

Before: GINSBURG,

1

Opinion for the Court filed by Circuit Judge

KAVANAUGH, with whom Circuit Judge GINSBURG joins.

HENDERSON, and KAVANAUGH, 

Circuit Judges.

Dissenting opinion filed by Circuit Judge HENDERSON.

KAVANAUGH, Circuit Judge: This is not your typical 

lawsuit against the Government. Plaintiffs here have sued 

because they don’t want government benefits. They seek to 

disclaim their legal entitlement to Medicare Part A benefits

for hospitalization costs. Plaintiffs want to disclaim their 

legal entitlement to Medicare Part A benefits because their 

private insurers limit coverage for patients who are entitled to

Medicare Part A benefits. And plaintiffs would prefer to 

receive coverage from their private insurers rather than from

the Government.

Plaintiffs’ lawsuit faces an insurmountable problem: 

Citizens who receive Social Security benefits and are 65 or 

older are automatically entitled under federal law to Medicare 

Part A benefits. To be sure, no one has to take the Medicare 

Part A benefits. But the benefits are available if you want 

them. There is no statutory avenue for those who are 65 or 

older and receiving Social Security benefits to disclaim their 

legal entitlement to Medicare Part A benefits. For that reason, 

the District Court granted summary judgment for the 

Government. We understand plaintiffs’ frustration with their 

insurance situation and appreciate their desire for better 

private insurance coverage. But based on the law, we affirm

the judgment of the District Court.

 1 As of the date the opinion was published, Judge Ginsburg 

had taken senior status.
3

I

Most citizens who are 62 or older and file for Social 

Security benefits are legally entitled to receive Social Security 

benefits. See 42 U.S.C. § 402(a). Since Congress created 

Medicare in 1965, entitlement to Social Security benefits has 

led automatically to entitlement to Medicare Part A benefits

for those who are 65 or older. See 42 U.S.C. § 426(a); see 

also Social Security Amendments of 1965, Pub. L. No. 89-97, 

§ 101, 79 Stat. 286, 290.

Plaintiffs Armey, Hall, and Kraus all receive Social 

Security benefits and are 65 or older. Therefore, they are 

automatically entitled to Medicare Part A benefits. But they

want to disclaim their legal entitlement to Medicare Part A

benefits.

2

 In other words, they want not only to reject the 

Medicare Part A benefits (which they are already free to do) 

but also to obtain a legal declaration that the Government 

cannot pay Medicare Part A benefits on their behalf. 

According to plaintiffs, if they could show their private 

insurers that they are not legally entitled to Medicare Part A

benefits, they would receive additional benefits from their

private insurers. Plaintiffs argue that the statute allows them 

to disclaim their legal entitlement to Medicare Part A benefits

and that the agency has violated the statute by preventing 

them from doing so.

3

 2 The two other named plaintiffs do not now receive Social 

Security benefits but they wish to be able to do so without 

becoming entitled to Medicare Part A benefits.

3 Plaintiffs specifically target the agency’s Program Operations 

Manual System, which does not allow a beneficiary to disclaim the 

legal entitlement to Medicare Part A benefits.
4

II

We first consider plaintiffs’ standing. Plaintiffs claim 

that their private insurers have curtailed coverage as a result 

of plaintiffs’ entitlement to Medicare Part A benefits.

Plaintiff Armey declared that his legal entitlement to 

Medicare Part A benefits led his Blue Cross plan to reduce 

coverage without a matching reduction in premium. Plaintiff 

Hall declared that his Mail Handlers plan stopped acting as 

his primary payer because of his legal entitlement to Medicare 

Part A benefits. They claim they would receive enhanced 

coverage from their private insurers if they were not entitled 

to Medicare Part A benefits. For purposes of the standing 

inquiry, we must accept those declarations as true.

We conclude that Armey and Hall have suffered injuries

in fact from their reduced private insurance. They have 

shown causation because their private insurance has been 

curtailed as a direct result of their legal entitlement to 

Medicare Part A benefits. And as to redressability, plaintiffs 

claim that they could obtain additional coverage from their 

private insurance plans if allowed to disclaim their legal 

entitlement to Medicare Part A benefits.

Because Armey and Hall have standing, we need not 

address standing for the other plaintiffs. We therefore 

proceed to the merits.

III

Because plaintiffs are 65 or older and are entitled to 

Social Security benefits, they are “entitled to hospital 

insurance benefits” through Medicare Part A. 42 U.S.C. 

§ 426(a). But plaintiffs do not want to be legally entitled to

Medicare Part A benefits.
5

To be clear, plaintiffs already “may refuse to request 

Medicare payment” for services they receive and instead 

“agree to pay for the services out of their own funds or from 

other insurance.” MEDICARE CLAIMS PROCESSING MANUAL, 

ch. 1, § 50.1.5 (2011). So they can decline Medicare Part A

benefits.

But plaintiffs want something more than just the ability to 

decline Medicare payments. They seek a legal declaration

that Medicare Part A benefits cannot be paid on their behalf –

a declaration, in other words, that they are not legally entitled 

to Medicare Part A benefits. But the statute simply does not 

provide any mechanism to achieve that objective. If you are 

65 or older and sign up for Social Security, you are 

automatically entitled to Medicare Part A benefits. You can 

decline those benefits. But you still remain entitled to them 

under the statute.

What plaintiffs really seem to want is for the Government 

and, more importantly, their private insurers to treat plaintiffs’ 

decision not to accept Medicare Part A benefits as meaning 

plaintiffs are also not legally entitled to Medicare Part A 

benefits. But the problem is that, under the law, plaintiffs 

remain legally entitled to the benefits regardless of whether 

they accept them.

Consider an analogy. A poor citizen might be entitled 

under federal law to food stamps. The citizen does not have 

to take the food stamps. But even so, she nonetheless remains

legally entitled to them. So it is here.

Plaintiffs offer four arguments for why they must be 

allowed to disclaim their legal entitlement to Medicare Part A

benefits. None is persuasive.
6

First, plaintiffs say that the plain meaning of the statutory 

term “entitled” requires that the beneficiary be given a choice 

to accept or reject Medicare Part A. But plaintiffs’

entitlement is to “hospital insurance benefits” under Medicare 

Part A. 42 U.S.C. § 426(a) (emphasis added). As explained 

above, plaintiffs may refuse Medicare Part A benefits. See 

MEDICARE CLAIMS PROCESSING MANUAL, ch. 1, § 50.1.5. So 

they already have a choice to accept or reject those benefits.

Second, plaintiffs claim that, by statute, Medicare Part A 

is a voluntary program. That’s true in the sense that plaintiffs 

can always obtain private insurance and decline Medicare Part 

A benefits. But the fact that the program is voluntary does 

not mean there must be a statutory avenue for plaintiffs to 

disclaim their legal entitlement to Medicare Part A benefits.

Third, plaintiffs acknowledge that they can escape their 

entitlement to Medicare Part A benefits by disenrolling from 

Social Security and forgoing Social Security benefits. From 

that, plaintiffs contend that entitlement to Medicare Part A 

benefits has thereby been made a prerequisite to receiving 

Social Security benefits, in contravention of the statute 

governing entitlement to Social Security benefits. But 

plaintiffs have it backwards. Signing up for Social Security is 

a prerequisite to Medicare Part A benefits, not the other way 

around.

Fourth, plaintiffs note that entitlement to Social Security 

benefits is optional and argue that entitlement to Medicare 

Part A should likewise be optional. But Social Security 

participation is optional because filing an application for 

benefits is a statutory prerequisite to entitlement. See 42 

U.S.C. § 402(a)(3). Congress could have made entitlement to 

Medicare Part A benefits depend on an application. But 

Congress instead opted to make entitlement to Medicare Part 
7

A benefits automatic for those who receive Social Security 

benefits and are 65 or older.

In sum, plaintiffs’ position is inconsistent with the 

statutory text. Because plaintiffs are entitled to Social 

Security benefits and are 65 or older, they are automatically 

entitled to Medicare Part A benefits. The statute offers no 

path to disclaim their legal entitlement to Medicare Part A

benefits. Therefore, the agency was not required to offer 

plaintiffs a mechanism for disclaiming their legal entitlement, 

and its refusal to do so was lawful.

4

* * *

We affirm the judgment of the District Court.

So ordered.

 4 We have considered plaintiffs’ other arguments and find 

them without merit.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting: 

In Silver Blaze, a prized race horse disappears from its 

stable on the eve of a high-stakes race. By the time Inspector 

Gregory arrives from Scotland Yard, Sherlock Holmes is on 

the case. 

Gregory: “Is there any point to which you 

would wish to draw my attention?” 

Holmes: “To the curious incident of the dog 

in the night-time.” 

Gregory: “The dog did nothing in the nighttime.” 

Holmes: “That was the curious incident.” 

SIR ARTHUR CONAN DOYLE, MEMOIRS OF SHERLOCK HOLMES

22 (A. L. Burt Co. 1922) (1894). What led Holmes to 

conclude that the dog knew the thief was its silence. The dog 

did not bark. Ditto here. The majority’s silence on the sole 

question in this case—is the Social Security Administration 

(SSA) authorized to penalize an individual who seeks to 

decline Medicare, Part A coverage by requiring him to forfeit 

his Social Security benefits and repay any benefits previously 

received—provides the answer: no. Because I believe that 

SSA’s Program Operations Manual System (POMS) gives the 

SSA power that the Congress in no way provides, I 

respectfully dissent.1

 

1

 Although the plaintiffs assert that the POMS was produced by 

Health and Human Services (HHS) Secretary Sebelius and SSA 

Commissioner Astrue jointly, see, e.g., Am. and Substituted Compl. 

¶18, the POMS is an internal SSA document used by Social Security

employees in assessing Social Security claims, Appellees’ Br. at 8; 

Program Operations Manual System Home, 

https://secure.ssa.gov/apps10/ (last visited January 23, 2012). 

Accordingly, this dissent addresses only Commissioner Astrue’s 

authority vel non to devise the challenged POMS provisions. 
2 

I. 

The Medicare Act, 42 U.S.C. §§ 1395 et seq., establishes 

a program of health insurance for the elderly and disabled. 

Medicare Part A, often called “Hospital Insurance” or “HI,” 

covers services furnished by hospitals and other institutional 

providers. An individual is statutorily entitled to Medicare, 

Part A upon becoming entitled to monthly Social Security 

retirement benefits (SSRB).2 Under the Medicare Act: 

 Every individual who: 

 (1) has attained age 65, and 

(2)(A) is entitled to monthly insurance 

benefits under [42 U.S.C. § 402(a)], . . . 

shall be entitled to hospital insurance 

benefits under part A . . . for each month for 

which he meets the condition specified in 

paragraph (2) . . . . 

42 U.S.C. § 426(a). Thus, anyone who “is entitled” to SSRB 

“shall be entitled” to Medicare, Part A benefits immediately 

upon his 65th birthday. Id. Under the Social Security Act: 

Every individual who 

(1) is a fully insured individual (as defined in [42 

U.S.C. § 414(a)]), 

 

2

 Certain individuals are not statutorily entitled to Part A 

benefits because they do not qualify for SSRB. Specifically, under 

42 U.S.C. § 1395i-2(a), an individual who (1) “has attained the age 

of 65;” (2) “is enrolled in [Medicare, Part B];” (3) “is either (A) a 

citizen or (B) an alien lawfully admitted for permanent residence;” 

and (4) “is not otherwise entitled [to Medicare, Part A] . . . shall be 

eligible to enroll in [Medicare, Part A].” To secure Medicare, Part 

A benefits, he must apply and periodically pay premiums—much 

like private insurance. 
3 

 (2) has attained age 62, and 

(3) has filed application for old-age 

insurance benefits . . . 

shall be entitled to . . . old-age insurance 

benefit[s] . . . . 

42 U.S.C. § 402(a). To be “entitled” to SSRB, then, an 

individual must first apply therefor; if he fails to file an 

application, he is not “entitled” to the benefits regardless of 

his age or working history. 

The POMS is a massive internal set of provisions, 

produced without notice and comment rulemaking and used 

by SSA employees to process claims for SSRB. See Wash. 

Dep’t. of Soc. & Health Servs. v. Guardianship Estate of 

Keffeler, 537 US. 371, 385 (2003) (POMS provides “the 

publicly available operating instructions for processing Social 

Security claims”); Power v. Barnhart, 292 F.3d 781, 786 

(D.C. Cir. 2002) (POMS is an “interpretive document” 

“lack[ing] . . . administrative formality”). The provisions of 

the POMS relating to HI alone include more than 100 printed 

pages. See SSA’s Program Operations Manual System, 

https://secure.ssa.gov/apps10/poms.nsf/chapterlist!openview

&restricttocategory=06 (last visited Jan. 23, 2012).3

 The 

plaintiffs4

 limit their statutory, procedural and constitutional 

challenges to three provisions of the POMS, arguing that they 

 

3

 The POMS fits nicely the description the United States 

Supreme Court once used for the Medicaid statute: “ ‘an aggravated 

assault on the English language, resistant to attempts to understand 

it.’ ” Schweiker v. Gray Panthers, 453 U.S. 34, 43 n.14 (1981) 

(quoting Friedman v. Berger, 409 F. Supp. 1225, 1226 (S.D.N.Y. 

1976)). 

4

 I agree with my colleagues that plaintiffs Hall and Armey have 

the requisite standing to pursue this suit. Majority Op. at 4. 
4 

impermissibly tether Medicare, Part A entitlement to SSRB 

by penalizing them if they decline Medicare, Part A coverage. 

The first of the three challenged provisions, POMS HI 

00801.002, reveals the ad hoc manner in which the entire 

POMS was assembled. The “Introduction” to the provision 

provides in full: “Some individuals entitled to monthly 

benefits have asked to waive their HI entitlement because of 

religious or philosophical reasons or because they prefer other 

health insurance.” POMS HI 00801.002. Then, without so 

much as a word of explanation as to the statutory basis or 

rationale behind it, the provision announces SSA’s answer, 

dubbing it “Policy.” 

Individuals entitled to monthly benefits which 

confer eligibility for HI may not waive HI 

entitlement. The only way to avoid HI 

entitlement is through withdrawal of the 

monthly benefit application. Withdrawal 

requires repayment of all [SSRB] and HI 

benefit payments made.5 

POMS HI 00801.002 (emphasis in original). The other two 

provisions are equally opaque as to their rationale and silent 

on their authority. POMS HI 00801.034 provides: 

To withdraw from the HI program, an 

individual must submit a written request for 

withdrawal and must refund any HI benefits 

paid on his/her behalf as explained in GN 

00206.095 B.1.c. 

 

5

 On its face, POMS HI 00801.002 requires a person who does 

not want Medicare, Part A coverage to refund both SSRB and HI 

benefits. Plaintiffs Hall and Armey limit their challenge to the 

required forfeiture and repayment of their SSRB only. 
5 

An individual who filed an application for both 

monthly benefits and HI may: 

 withdraw the claim for monthly 

benefits without jeopardizing HI 

entitlement; or

 withdraw the claim for both 

monthly benefits and HI. 

The individual may not elect to withdraw 

only the HI claim.6

(emphases in original). The third, POMS GN 00206.020, 

repeats the bare command that “a claimant who is entitled to 

monthly [SSRB] cannot withdraw HI coverage only since 

entitlement to HI is based on entitlement to monthly [SSRB].” 

In short, with no explanation (other than the above clause 

beginning “since”) much less a statutory basis, all three 

challenged provisions empower SSA personnel to force an 

individual who does not want Medicare, Part A coverage to 

forfeit future SSRB and refund SSRB payments already 

received. 

II. 

“Not every agency interpretation of a statute is 

appropriately analyzed under Chevron [U.S.A. Inc. v. Natural 

Resources Defense Council, Inc., 467 U.S. 837 (1984)].” Ala. 

Educ. Ass’n v. Chao, 455 F.3d 386, 392 (D.C. Cir. 2006). 

Indeed, Chevron deference is appropriate only if the Congress 

has delegated authority to an agency to make rules having the 

 

6

 Interestingly, this provision—contrary to the position of 

Commissioner Astrue who asserts that anyone entitled to SSRB 

“need not apply for” Medicare, Part A coverage, Appellees’ Br. at 

17—declares that an individual can “file[] an application for both 

[SSRB] and HI,” POMS HI 00801.034. 
6 

“force of law” and the agency rule at issue was “promulgated 

in the exercise of that authority.” United States v. Mead 

Corp., 533 U.S. 218, 226-27 (2001). Although SSA 

Commissioner Astrue is authorized to issue rules with the 

“force of law,” see 42 U.S.C. § 405(a), the POMS was not 

produced in the exercise of that authority. As we made plain 

in Power v. Barnhart, “[the POMS] lack the administrative 

formality or other attributes that would justify substantial 

judicial deference under Chevron . . . and hence . . . they 

would at best qualify for the more limited form of deference 

under Skidmore v. Swift & Co., 323 U.S. 134, [139-140] 

(1944).” 292 F.3d at 786 (emphasis added). But neither 

Skidmore, Chevron nor Mead requires any deference to an 

ultra vires “interpretive document.” See, e.g., Ry. Labor 

Execs. Ass’n v. Nat’l Mediation Bd., 29 F.3d 655, 671 (D.C. 

Cir. 1994) (“[D]eference is warranted only when Congress 

has . . . ‘delegat[ed] . . . authority to the agency.’ ” (quoting 

Chevron, 467 at 843-44)); Natural Res. Def. Council v. Reilly, 

983 F.2d 259, 266 (D.C. Cir. 1993) (“[I]t is only legislative 

intent to delegate . . . authority that entitles an agency to 

advance its own statutory construction” (internal quotation 

marks and citations omitted; brackets in original)); see also

D.C. Hosp. Ass’n. v. District of Columbia, 224 F.3d 776, 780

(D.C. Cir. 2000) (“Because the provision at issue here is 

unambiguous, we owe no deference to a contrary construction 

even if formally adopted by the Secretary of [HHS].”). 

Here, the scope of the relevant provisions of the 

Medicare and Social Security Acts is as plain as the definition 

of “entitled.” Under 42 U.S.C. § 426(a), a person who is 

“entitled” to SSRB and has reached age 65 “shall be entitled” 

to Medicare, Part A benefits. “Entitled” is synonymous with 

“eligible,” which means “capable of being chosen” or 

“legally qualified.” BLACK’S LAW DICTIONARY 521 (6th ed. 

2002) (emphases added). To “entitle” means “to give a right 

or legal title to; qualify (one) for something; furnish with 
7 

proper grounds for seeking or claiming something.” 

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 758

(1993). As explained by the Supreme Court, 

Both in legal and general usage, the normal 

meaning of entitlement is a right or benefit for 

which a person qualifies . . . . It means only 

that the person satisfies the prerequisites 

attached to the right. 

Ingalls Shipbuilding v. Dir., 519 U.S. 248, 256 (1997) 

(internal quotation marks and citation omitted). This 

definition has been applied by our Circuit and others in 

interpreting the terms “entitlement” and “entitled” as they are 

used in other parts of the Social Security and Medicare Acts. 

See Krishnan v. Barnhart, 328 F.3d 685, 688 (D.C. Cir. 2003) 

(to be “entitled” means that an individual “qualifies” or has 

met the requisite requirements to obtain the benefits); Jewish 

Hospital, Inc. v. Sec’y of HHS, 19 F.3d 270, 275 (6th Cir. 

1994) (as used in the Medicare Act, “[t]o be entitled . . . 

means [to] possess[] the right or title to that benefit” 

(emphasis removed)); Fagner v. Heckler, 779 F.2d 541, 543 

(9th Cir. 1985) (as used in Social Security Act, “entitled 

means to give right or legal title to, qualify (one) for 

something; furnish with proper grounds for seeking or 

claiming something” (internal quotation marks and citation 

omitted)).

Although the district court noted that the “plain-English 

reading of the word ‘entitled’ has its attraction[],” the court 

nonetheless held that “in context [of] Medicare ‘entitled’ does 

not actually mean ‘capable of being rejected.’ ” Hall v. 

Sebelius, 770 F. Supp. 2d 61, 67 (D.D.C. 2011). If the 

Congress had wanted to make enrollment in Part A optional, 

the court stated, it would have said so expressly. Id. at 67-68.

In 42 U.S.C. § 1395i-2, for example, the Congress provided 

that every individual who (1) “has attained the age of 65;” (2) 
8 

“is enrolled in [Medicare, Part B];”7

 (3) “is either (A) a citizen 

or (B) an alien lawfully admitted for permanent residence”; 

and (4) “is not otherwise entitled [to Medicare, Part A] . . . 

shall be eligible to enroll in [Medicare, Part A].” 42 U.S.C. 

§ 1395i-2(a) (emphasis added). In the court’s view, if the 

Congress had wanted Medicare, Part A coverage to be 

optional under 42 U.S.C. § 426(a), the statute would have 

provided that any person entitled to receive SSRB who 

reaches the age of 65 “shall be eligible to enroll in [Medicare, 

Part A].” Hall, 770 F. Supp. at 68.8

 

My colleagues reach a similar conclusion. Citing a single 

provision of Secretary Sebelius’s Medicare Claims Processing 

Manual, they conclude: 

Congress could have made entitlement to 

Medicare Part A benefits depend on an 

application. But Congress instead opted to 

make entitlement to Medicare Part A benefits 

automatic for those who receive Social 

Security Benefits and are 65 or older. 

 

7

 Medicare, Part B provides coverage for the costs of 

physicians’ services and other medical services. Unlike Medicare, 

Part A, which is financed by a mandatory payroll tax, Medicare, 

Part B is financed in large part by enrollees’ premiums. 

8

 Comparing 42 U.S.C. § 426(a) and 42 U.S.C. § 1395i-2, as the 

district court did, is not that persuasive. Under the first provision, 

an individual’s eligibility for Medicare, Part A coverage occurs by 

operation of law if he is at least 65 years old and receives SSRB. 

The second provision, however, requires him to apply for the 

coverage. The two provisions address different circumstances (in 

one, the benefit is by operation of law and in the other, by 

application) and so are not in pari materia.
9 

Majority Op. 6-7.9

 According to the majority, because the 

statute offers “no path to disclaim their legal entitlement to 

Medicare Part A benefits,” the “agency was not required to 

offer plaintiffs a mechanism for disclaiming their legal 

entitlement.” Majority Op. 7 (emphasis added). But that is not 

to say that, having chosen to allow disclaimer via the POMS, 

the POMS can take away a statutory entitlement (i.e., SSRB) 

as a condition of the disclaimer. 

 Plaintiffs Hall and Armey do not dispute that entitlement 

to Medicare, Part A occurs by operation of law. See Reply Br. 

at 2 (“Plaintiffs-Appellants never suggested that they sought 

to renounce their entitlement to Medicare, Part A, and they 

did not contend that the Defendant-Appellees must allow 

them to . . . somehow declare that Plaintiffs-Appellants are 

not entitled to Medicare, Part A.”). Instead, they argue 

something much more fundamental, i.e., that there is no 

statutory authority for the POMS’s edict that an individual 

who declines Medicare, Part A coverage is required to 

forego/refund SSRB. I agree. The relevant language of both 

statutes, 42 U.S.C. §§ 402(a) and 426(a), reads identically in 

that they both provide that an individual “shall be entitled” to 

benefits if he meets certain qualifying conditions. Neither 

statute requires an “entitled” individual to accept the benefits. 

 

9

 The majority opinion cites an equally ad hoc manual put 

together not by SSA Commissioner Astrue but by codefendant 

Sebelius, which states that a Medicare beneficiary “may refuse to 

request Medicare payment” for services he receives and instead 

“agree to pay for the services out of [his] own funds or from other 

insurance.” Majority Op. at 5 (citing Medicare Claims Processing 

Manual, ch. 1, § 50.1.5 (2011)). But even a cursory examination of 

the Medicare, Part A maze reveals this option to be illusory. Under 

42 U.S.C. § 1395cc(a)(1)(A)(i), a hospital cannot charge or accept 

private payment “for items or services for which [an] individual is 

entitled to have payment made under [Medicare, Part A].” 
10 

Nor do they even hint at permitting the SSA to withdraw 

SSRB and demand repayment thereof if an individual does 

not want to participate in Medicare, Part A. The POMS alone 

does that. It gives SSA Commissioner Astrue a power not 

provided him by the Congress—the power to penalize a 

person who is “entitled” to Medicare, Part A by operation of 

law but who does not want Part A coverage by stripping that 

person of future SSRB and forcing repayment of SSRB 

already received.10 

 In American Bar Association v. FTC, we made plain that 

an agency cannot exercise regulatory power without 

congressional grant. 430 F.3d 457, 468 (D.C. Cir 2005). As 

we explained, “if we were ‘to presume a delegation of power’ 

from the absence of ‘an express withholding of such power [in 

 

10 For this reason, my colleagues’ analogy to a “poor citizen” 

who is “entitled to” but “does not have to take food stamps” is 

inapposite. See Majority Op. at 5. Indeed, much like the rest of its 

analysis, the majority opinion’s analogy misses the issue in this 

case: whether an agency, without statutory authority, can require a 

person to forego/refund a statutory entitlement simply because he 

does not want another federal benefit that also accrues by operation 

of law. If the food stamp beneficiary could decline that benefit only 

by also giving up Medicaid and repaying all Medicaid benefits 

received, I wonder if my colleagues would endorse that agency 

overreach. Here’s another analogy. A person born in the United 

States is, by operation of law, entitled to the benefits of citizenship 

upon his birth. U.S. Const., Amend. XIV, § 1 (“All persons born . . 

. in the United States . . . are citizens of the United States and the 

State wherein they reside.”); see, e.g., 22 U.S.C. § 212 (a “person[] 

. . . owing allegiance . . . to the United States”—i.e., a citizen or 

national—is entitled to a U.S. passport). If he were to eventually 

renounce his citizenship, see 8 U.S.C. § 1481(a)(5), could the 

United States Department of Education, through an “interpretive 

document,” force him to repay the federal portion of his 

primary/secondary public education? Of course not. 
11 

the statute], agencies would enjoy virtually limitless 

hegemony.’ ” Id. (quoting Ry. Labor Execs. Ass’n, 29 F.3d at 

671) (emphasis in original); see also Ry. Labor Execs. Ass’n,

29 F.3d at 671 (to suggest “deference is implicated any time a 

statute does not expressly negate the existence of a claimed 

administrative power (i.e., when the statute is not written in 

“thou shalt not” terms), is both flatly unfaithful to the 

principles of administrative law . . . and refuted by 

precedent”). As the Supreme Court has aptly observed, the 

“[Congress] does not . . . hide elephants in mouseholes.” 

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). If 

the Congress had intended to impose the “death penalty” on 

SSRB for anyone declining Medicare, Part A coverage, it 

would not have hidden the imposition in the non-germane 

phrase “shall be entitled.” By using the word “entitled,” the 

Congress made plain that the “legal right or title” to 

Medicare, Part A coverage, while available by operation of 

law, is not unwaivable, much less waivable only by 

sacrificing benefits for which an individual has paid.11 

 Because there is no statutory basis for the challenged 

provisions of the POMS, they are ultra vires. “The legislative 

power of the United States is vested in the Congress, and the 

exercise of quasi-legislative authority by governmental 

departments and agencies must be rooted in a grant of such 

power by the Congress and subject to limitations which that 

body imposes.” See Chrysler Corp. v. Brown, 441 U.S. 281, 

302 (1979). The authority to administer the law is not the 

power to make the law. Orion Reserves Ltd. P’ship v. Salazar, 

553 F.3d 697, 703 (D.C. Cir. 2009). Accordingly, “a 

regulation contrary to a statute is void.” Id. Commissioner 

Astrue is clothed with exceptional authority but even he 

 

11 In response to this well-settled authority, my colleagues—

again—do not bark. 
12 

cannot make law.12

For the foregoing reasons, I respectfully dissent.

 

12 Because I believe the POMS are plainly ultra vires, I do not 

address the plaintiffs’ procedural and constitutional challenges.