# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

A rgued October 13, 2011 Decided February 7, 2012

No. 11

- 5076

B RIAN H ALL
, ET AL
., A PPELLANTS

v.

K ATHLEEN S EBELIUS
, S ECRETARY OF THE U NITED S TATES

D EPARTMENT OF H EALTH AND H UMAN S ERVICES
, AND

M ICHAEL J. A STRUE
, C OMMISSIONER OF THE S OCIAL S ECURITY A DMINISTRATION
, A PPELLEES

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: G INSBURG
, 1

Opinion for the Court filed by Circuit Judge
K AVANAUGH , with whom Circuit Judge G INSBURG joins

. H ENDERSON
, and K AVANAUGH
, Circuit Judges

.

Dissenting opinion filed by Circuit Judge H ENDERSON

.

K AVANAUGH
, Circuit Judge : This is not your typical
law suit against the Government. P laintiffs here have sued because they don’t want government benefits. T hey seek to disclaim the ir 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

.

P laintiffs ’ lawsuit face s a n 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, n o one has to take the Medicare
Part A benefits. But the benefits are available if you want
them. T here is no statutory avenue for those who are 65 or older and recei ving 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 appre ciate their desire for better private insurance coverage. But based on the law, w e 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 c itizens who are 62 or older and file for Social Security benefits are legally entitled to receive Social Security
benefit s. 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

. T herefore , they are automatically entitled to Medicare Part A benefits

. But t hey
want to disclaim their legal entitlement to Medicare Part A
benefits

. 2 In other words, t hey 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 bene fits 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 the ir private insurers. Plaintiff s 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 insur ers have curtail ed coverage as a result of plaintiffs’ entitlement to Medicare Part A benefits

. P laintiff Armey declared that his legal entitlement to
Medicare Part A benefits led his Blue Cross plan to reduce coverage without a matching reduction in prem ium. 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 ins u r ers if they were not entitl ed
to Medicare Part A benefits. For purposes of the standing inquiry, w e 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 p laintiffs do not want to be legally entitled to
Medicare Part A benefits

.5

To be clear, p laintiffs already “ may refuse to request
Medic are payment ” for services they receive and instead

“ agree to pay for the services out of their own funds or f rom other insurance.” M EDICARE C LAIMS P ROCESSING M ANUA L
, ch. 1, § 50.1.5 (2011). So they can decline Medicare Part A
ben efits.

But p laintiffs want something more than just the ability to decline Medicare payments

. T hey 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 benef its

. 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 th ose benefits. But you still rema in 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 e ntitled 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
unde r federal law to food stamps

. T he citizen does not have
to take the food stamps

. B ut even so, she nonetheless remain s legally entitled to them . So it is here.

P laintiffs 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 benefi ts ” under Medicare Part A. 42 U.S.C. § 426(a) (emphasis added). As explained above, plaintiffs may refuse Medicare Part A benefits

. S ee M EDICARE C LAIMS P ROCESSING M ANUA L , ch. 1, § 50.1.5

. S o 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 me an there must be a statutory avenue for plaintiffs to disclaim the ir 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 fo rgoing Social Security b enefits

. From that, p laintiffs 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.

F ourth

, plaintiffs note that entitlement to Social Security benefits is optional and argue that e ntitlement 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 entitleme nt to Medicare Part A benefits depend on a n application. But Congress instead opted to make entitlement to Medicare Part7

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 p laintiffs are entitled to Social Security benefits and are 65 or older , they are automatically
entitled to Medicare Part A benefits. T he statute offers no path to disclaim their legal entitlement to Medicare Part A
benef its

. Therefore, the agency was not required to offer plaintiffs a mechanism for disclaim ing 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.K AREN L E C RAFT H ENDERSON

, Circuit Judge , dissenting:

In Silver Blaze , a prized race horse disappears from its stable on the eve of a high-stak es race. By the time Inspector Gregory arrives from Scotland Ya rd, 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.”

S IR A RTHUR C ONAN D OYLE , M EMOIRS OF S HERLOCK H OLMES 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 covera ge by requiring him to forfeit his Social Security benefits a nd 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 Congre ss 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 hos pitals and other institutional providers. An individual is stat utorily 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 indi vidual (as defined in [42 U.S.C. § 414(a)]),

2 Certain individuals are not statutorily entitled to Part A benefits because they do not qua lify 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, Pa rt 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 pro cess 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 instru ctions 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/pom s.nsf/chapterlist!openview &restricttocategory=06 (last visited Jan. 23, 2012). 3 The plaintiffs 4 limit their statutory, proc edural 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, resist ant 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 indivi duals entitled to monthly
benefits have asked to waive th eir HI entitlement because of religious or philosophical reason s 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 provi sion 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 app lication. 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 re fund 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 cove rage to refund both SSRB and HI
benefits. Plaintiffs Hall and Ar mey 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 withdr aw 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 Me dicare, Part A coverage to
forfeit future SSRB and ref und 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 appropri ate only if the Congress has delegated authority to an ag ency 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] . . . aut hority 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 cons truction” (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 deferenc e 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 reache d age 65 “shall be entitled” to Medicare, Part A benefits. “E ntitled” is synonymous with “eligible,” which means “ capable of being chosen ” or “legally qualified.” B LACK ’ S L AW D ICTIONARY 521 (6th ed. 2002) (emphases added). To “entitle” means “to give a right or legal title to; qualify (one) for something; furnish with7

proper grounds for seeking or claiming something.”
W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY 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 Soci al Security and Medicare Acts.
See Krishnan v. Barnhart , 328 F.3d 685, 688 (D.C. Cir. 2003) (to be “entitled” means that an individual “qua lifies” 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 So cial Security Act, “entitled means to give right or lega l title to, qualify (one) for something; furnish with pr oper grounds for seeking or claiming something” (interna l quotation marks and citation omitted)).

Although the district court not ed that the “plain-English reading of the word ‘entitled’ has its attraction[],” the court
nonetheless held that “in contex t [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 entitle d [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 en titled to receive SSRB who reaches the age of 65 “shall be elig ible 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 Cong ress 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 disc laim 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 (emp hasis 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 neve r suggested that they sought
to renounce their enti tlement to Medicare, Part A, and they
did not contend that the De fendant-Appellees must allow
them to . . . somehow declare that Plaintiffs-Appellants are not entitled to Medicare, Part A.”). Instead, they argue something much more fundament al, 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 in dividual “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 Medi care, Part A. The POMS alone does that. It gives SSA Comm issioner Astrue a power not provided him by the Congress—the power to penalize a person who is “entitled” to Me dicare, 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 an alogy 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 benef it 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 analog y. 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. pass port). If he were to eventually renounce his citizenship, see 8 U.S.C. § 1481(a)(5), could the United States Department of Edu cation, 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 Medi care, 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-legislati ve authority by governmental departments and agencies must be rooted in a grant of such power by the Congress and subjec t to limitations which that body imposes.” See Chrysler Corp. v. Brown , 441 U.S. 281, 302 (1979). The authority to admi nister 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 excep tional 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.