UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1713

PAUL FISCHER, M.D.; ROBERT CLARK, D.O.; LESLIE POLLARD, 

M.D.,

Plaintiffs – Appellants,

and

EDWIN SCOTT; ROBERT SUYKERBUYK, M.D.; REBECCA TALLEY, M.D.,

Plaintiffs,

v.

DONALD BERWICK, M.D., in his official capacity as 

Administrator, Centers for Medicare & Medicaid Services; 

KATHLEEN SEBELIUS, in her Official Capacity as Secretary of 

the United States Department of Health and Human Services,

Defendants - Appellees.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. William M. Nickerson, Senior District 

Judge. (1:11-cv-02191-WMN)

Submitted: December 14, 2012 Decided: January 7, 2013

Before NIEMEYER, MOTZ, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Timothy F. Maloney, Veronica B. Nannis, Matthew M. Bryant, 

JOSEPH, GREENWALD & LAAKE, P.A., Greenbelt, Maryland, for 
2

Appellants. William B. Schultz, U.S. DEPARTMENT OF JUSTICE, 

Washington, D.C.; Robert W. Balderston, Lawrence J. Harder, Amy 

Weiser, DEPARTMENT OF HEALTH & HUMAN SERVICES, Washington, D.C.; 

Stuart F. Delery, Acting Assistant Attorney General, Mark B. 

Stern, Alisa B. Klein, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C.; Rod J. Rosenstein, United States Attorney, 

Baltimore, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Appellants, six primary care physicians, brought suit 

against Donald Berwick, Administrator of the Centers for 

Medicare and Medicaid Services (“CMS”), and Kathleen Sebelius, 

Secretary of the United States Department of Health and Human 

Services (“HHS”), challenging the method by which CMS and HHS 

determine the value of reimbursements paid to physicians for 

various procedures under the Medicare Physician Fee Schedule 

(“PFS”). Specifically, Appellants challenged CMS’s and HHS’s 

overreliance on the American Medical Association’s Relative 

Value Update Committee (“AMA RUC”)’s recommendations in the 

process of determining Relative Value Units (“RVUs”), which 

influence the PFS. The district court dismissed the suit for 

lack of subject matter jurisdiction, finding that Appellants’ 

claims were barred under 42 U.S.C. § 1395w-4(i)(1)(B) (2006), 

which prohibits judicial review of the determination of RVUs. 

Appellants now contend that the district court erred in: (1) 

holding that § 1395w-4(i)(1)(B) bars judicial review of their 

claims; (2) failing to conduct a cursory review of the merits 

pursuant to Leedom v. Kyne, 358 U.S. 184 (1958); (3) holding 

that their due process claim was not exempt from § 1395w4(i)(1)(B)’s bar and failing to consider their delegation clause 

claim in this context; and (4) dismissing their Federal Advisory 

Committee Act (“FACA”) claims. Finding no error, we affirm.
4

Appellants first contend that the district court erred 

in holding their claims barred by § 1395w-4(i)(1)(B). We review 

a district court’s dismissal for lack of subject matter 

jurisdiction de novo. Etape v. Chertoff, 497 F.3d 379, 382 (4th 

Cir. 2007). There exists a strong presumption that Congress 

intends judicial review of administrative action, which can only 

be rebutted by clear and convincing evidence of contrary 

legislative intent. Am. Soc’y of Cataract & Refractive Surgery 

v. Thompson, 279 F.3d 447, 452 (7th Cir. 2002). Contrary 

legislative intent may be proved by specific language or 

legislative history, or by the details of the legislative 

scheme. See id.

Section 1395w-4(i)(1)(B) provides: “There shall be no 

administrative or judicial review under section 1395ff of this 

title or otherwise of . . . the determination of relative values 

and relative value units under subsection (c) of this section.” 

This provision is a clear and explicit indication of legislative 

intent to prohibit judicial review of claims challenging the 

determination of RVUs. Accordingly, the issue is whether 

Appellants’ claims challenge the determination of RVUs. 

We find that Appellants’ claims challenge the 

determination of RVUs, and therefore are barred by § 1395w4(i)(1)(B). Section 1395w-4(i)(1)(B) bars challenges not only 

to the ultimate determinations of RVUs, but also to the process 
5

of making those determinations. See Thompson, 279 F.3d at 452-

54. Appellants challenge CMS’s and HHS’s reliance on the AMA 

RUC’s recommendations in the process of determining RVUs. This

is a challenge to the determination of RVUs, not some policy 

ancillary to that determination. See id. at 453 (describing 

ancillary policies as those applied only after relative values 

are determined, and exempting ancillary policies from § 1395w4(i)(1)(B)’s bar). Accordingly, the district court properly 

held Appellants’ claims barred under § 1395w-4(i)(1)(B).

Appellants next contend that even if § 1395w4(i)(1)(B) bars review of their claims, the district court erred 

in failing to conduct a cursory review of the merits pursuant 

to Leedom v. Kyne, 358 U.S. 184 (1958). Even where a statute 

expressly bars judicial review of agency action, Kyne provides 

an exception for claims that an agency exceeded its delegated 

powers, by acting contrary to a specific prohibition. Kyne, 358 

U.S. at 188; Hanaeur v. Reich, 82 F.3d 1304, 1307 (4th Cir. 

1996). Under this exception, the court must conduct a cursory 

review of the merits notwithstanding the statutory 

bar. Thompson, 279 F.3d at 456; Hanaeur, 82 F.3d at 1309. But 

even if the exception applies, the district court will not have 

jurisdiction over the case unless the cursory review reveals 

that the agency violated a clear statutory 

mandate. See Hanaeur, 82 F.3d at 1309. 
6

Appellants have waived this argument by failing to 

raise it in the district court. See Muth v. United States, 1 

F.3d 246, 250 (4th Cir. 1993). In any case, the argument lacks 

merit because there is no violation of a clear statutory 

mandate. See Hanaeur, 82 F.3d at 1309. Appellants point to no 

statutory provision prohibiting reliance on the AMA RUC’s 

recommendations, because no such provision exists.

Appellants next contend that the district court erred 

in finding that § 1395w-4(i)(1)(B) would not violate their due 

process rights and in failing to address whether the bar would 

violate the delegation clause. Another exception to the 

statutory bar on judicial review exists where the bar would be 

unconstitutional. See Thompson, 279 F.3d at 454. With respect 

to the due process claim, the district court correctly 

determined that Appellants have no legitimate property interest 

in having RVUs determined in a particular manner, as opposed to 

being reimbursed at the set rate for services actually 

rendered. See id. at 455. It therefore properly refused to 

except that claim from the statutory bar. With respect to the 

delegation clause claim, while the district court did not 

separately address this claim in the context of the 

unconstitutionality exception, Appellants waived this issue by 

failing to raise it below. In any case, any error on the part 

of the district court was harmless. Because Appellants’
7

“delegation clause” claim is in reality based entirely on 

statute—namely, 42 U.S.C. § 1395w-4(c)(2) (2006), which gives 

the Secretary the power to determine RVUs—Appellants have no 

right to judicial review. See Am. Soc’y of Dermatology v.

Shalala, 962 F. Supp. 141, 146 & n.3 (D.D.C. 1996) (refusing to 

review plaintiffs’ constitutional arguments, including one based 

on “nondelegation”); see also § 1395w-4(i)(1)(B) (barring 

judicial review of the determination of RVUs “under subsection 

(c) of this section”). Moreover, the argument is unpersuasive,

as the delegation clause is not implicated when a private entity 

acts in an advisory role. See Pittston Co. v. United States, 

368 F.3d 385, 395 (4th Cir. 2004). 

Finally, Appellants contend that the district court 

erred in dismissing as unreviewable counts one, four, and six of 

their complaint. These counts allege that the AMA RUC is a de 

facto federal advisory committee and that it violated the rules 

of FACA by failing to open its meetings and records to the 

public. Appellants contend that the district court erred in 

dismissing these counts because claims brought under FACA are 

not subject to § 1395w-4(i)(1)(B)’s bar on judicial 

review. See Dermatology, 962 F. Supp. at 146 (“With respect to 

plaintiffs’ FACA claims, 42 U.S.C. § 1395w-4(i)(1) does not 

deprive the Court of jurisdiction.”). Assuming without deciding 

that Appellants’ FACA claims are reviewable, these claims fail 
8

in any event because the AMA RUC is not an advisory committee 

subject to FACA. See 5 U.S.C. app. 2 § 3 (2006) (defining an 

“advisory committee” as a group established or utilized by an 

agency); Dermatology, 962 F. Supp. at 147 (holding that the AMA 

RUC was not subject to FACA because it was not established or 

utilized by CMS).

Accordingly, we affirm the district court’s order. We 

dispense with oral arguments because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED