United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2005 Decided December 13, 2005

No. 04-5411

AMERICAN CHIROPRACTIC ASSOCIATION, INC.,

APPELLANT

v.

MICHAEL O. LEAVITT, SECRETARY OF THE DEPARTMENT OF

HEALTH AND HUMAN SERVICES,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(98cv02762)

George P. McAndrews argued the cause for appellant. With

him on the briefs were Peter J. McAndrews, Gerald C. Willis,

Jr., Joseph F. Harding, Matthew A. Anderson, and Thomas R.

Daly.

Jeffrey Clair, Attorney, U.S. Department of Justice, argued

the cause for appellee. With him on the brief were Peter D.

Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S.

Attorney, and Barbara C. Biddle, Attorney.

Before: SENTELLE and RANDOLPH, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.
2

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge: The first issue in this appeal

from the district court’s order granting summary judgment in

favor of the Secretary of Health and Human Services is whether

the American Chiropractic Association has prudential standing

to pursue its claims under the Medicare Act. We hold that it

does. The second issue is whether the district court had

jurisdiction over each of the Association’s remaining claims.

We hold that it did not.

I.

The Medicare program subsidizes medical insurance for

elderly and disabled persons. 42 U.S.C. §§ 1395c, 1395j.

Enrollees in the program may select physicians of their choice,

with Medicare paying costs that are covered. Id. § 1395k. Or

they may obtain medical services from managed-care providers

such as health maintenance organizations (HMOs). Id.

§§ 1395w-21 to 1395w-28. The focus of the case is on these

organizations and on a particular type of “physicians’ service[],”

id. § 1395x(s)(1) – namely, manual manipulation of the spine

in order to correct a spinal misalignment or “subluxation.” 

Section 1395x(r) of the Act defines “physician” to include “a

doctor of medicine or osteopathy legally authorized to practice

medicine and surgery by the State,” or “a chiropractor who is

licensed as such by the State . . . and who meets uniform

minimum standards promulgated by the Secretary, but only . . .

with respect to treatment by means of manual manipulation of

the spine (to correct a subluxation) which he is legally

authorized to perform by the State.” Id. § 1395x(r).

The Association, invoking general federal question

jurisdiction under 28 U.S.C. § 1331, filed a complaint in district

court alleging that the Secretary had misinterpreted § 1395x(r)
3

1

 The Association’s complaint is aimed at the Medicare HMO

system. In 1999, the Secretary submitted a report to Congress. That

report stated that “[n]one of the plans that utilized chiropractors

included them on the staff, group, or panel.” It also noted that “[o]f

the HMOs [and other organizations] sample[d]” by the Secretary, “the

substantial majority, 78 percent, utilized chiropractors to provide the

service of manual manipulation of the spine.” These plans also used

other practitioners, such as medical doctors and osteopaths. The

remaining plans “did not utilize chiropractors to provide the service of

manual manipulation of the spine.” Donna E. Shalala, Department of

Health and Human Services, Chiropractic Services in Medicare

Managed Care ch. 4 (Apr. 1999) (report to Congress). 

2

 The Association also sought an order compelling the

Secretary to calculate the amount of funds he misspent under these

allegedly erroneous policies and to divert that amount toward the use

of chiropractors (Count 5). Like the district court, we consider Count

5 an extension of, or remedy for, the violations alleged in Counts 3

and 4. If those fail, so does Count 5. 

when he determined that not only chiropractors, but also medical

doctors and osteopaths could provide covered services when

they manually manipulated an enrollee’s spine to correct the

condition mentioned above (Count 3). According to the

Association, under the Act this service should be covered only

if chiropractors perform it.1 The complaint also alleged, in

Count 4, that the Secretary illegally permitted organizations

such as HMOs to require that enrollees obtain a referral from a

medical doctor, an osteopath, or other non-chiropractor in order

to obtain coverage for chiropractic correction of a subluxation.2

The district court rejected the Secretary’s argument that the

Association lacked prudential standing, Am. Chiropractic Ass’n

v. Shalala, 108 F. Supp. 2d 1, 7 n.5 (D.D.C. 2000), but agreed

that it lacked jurisdiction over Count 4, Am. Chiropractic Ass’n

v. Shalala, 131 F. Supp. 2d 174, 175-77 (D.D.C. 2001). As to
4

Count 3, the court held that it had jurisdiction, id. at 177-79, and

granted summary judgment in the Secretary’s favor, concluding

that chiropractors were not the only “physicians” who could

perform covered services dealing with subluxations. 

II.

With respect to standing, the Secretary’s objection is that

the Association’s members are not “arguably within the zone of

interests to be protected or regulated by the statute . . . in

question.” Nat’l Credit Union Admin. v. First Nat’l Bank &

Trust Co., 522 U.S. 479, 488 (1998) (quoting Ass’n of Data

Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153

(1970)). The interests of the Association are outside this

category, according to the Secretary, because the Act was not

“intended to protect the competitive position of chiropractors or

to limit the markets available to licensed medical doctors.” Br.

for Appellee 27.

If the Secretary’s version of what Congress intended is

correct, the Association might lose on the merits. But the zoneof-interest test, which is not “especially demanding,” does not

require an “indication of congressional purpose to benefit the

would-be plaintiff.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388,

399-400 (1987) (citing Inv. Co. Inst. v. Camp, 401 U.S. 617

(1971)). The question at this stage is whether Congress meant

to exclude this class of plaintiffs from those who may sue to

enforce their view of the Act, right or wrong. Id. at 399. 

It is of no moment that the Association, through this

lawsuit, may be seeking to promote the financial interests of its

members. See Nat’l Credit Union, 522 U.S. at 499; Amgen, Inc.

v. Smith, 357 F.3d 103, 109 (D.C. Cir. 2004). The Medicare

program makes quality health care available to the elderly and

the disabled by reimbursing those who provide care, including
5

physicians and chiropractors. See Fischer v. United States, 529

U.S. 667, 680 (2000). If the Secretary had simply refused to

permit reimbursement to any chiropractor despite the language

of § 1395x(r), no one would doubt the Association’s prudential

standing in a suit contesting the Secretary’s action. The

Association’s claim here – that the Secretary has effectively cut

off its members from potential patients who are members of

HMOs and similar organizations – is narrower. But this

scarcely alters the analysis. In both situations the interests of

enrollees and the interests of chiropractors converge: the

chiropractor provides the service, the enrollee receives it, and

Medicare provides reimbursement. This is more than enough to

satisfy the less-than-demanding zone-of-interest test. See

Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 871 (D.C.

Cir. 2001).

III.

The jurisdictional question is more complicated. “No action

against the United States, the [Secretary of Health and Human

Services], or any officer or employee thereof shall be brought

under [28 U.S.C. §] 1331 . . . to recover on any claim arising

under” the Medicare Act. 42 U.S.C. §§ 405(h), 1395ii. Judicial

review may be had only after the claim has been presented to the

Secretary and administrative remedies have been exhausted. See

42 U.S.C. §§ 405(g), (h), 1395w-22(g)(5); Shalala v. Ill. Council

on Long Term Care, Inc., 529 U.S. 1, 8-9 (2000); Heckler v.

Ringer, 466 U.S. 602, 614-15 (1984); Weinberger v. Salfi, 422

U.S. 749, 763-64 (1975). This bar against § 1331 actions

applies to all claims that have their “standing and substantive

basis” in the Medicare Act. Ill. Council, 529 U.S. at 11, 17

(quoting Salfi, 422 U.S. at 761); see also Ringer, 466 U.S. at

615.
6

Although § 1395ii, which incorporates § 405(h), would

appear to preclude all Medicare suits founded on general federal

question jurisdiction, the Supreme Court has recognized an

exception: if the claimant can obtain judicial review only in a

federal question suit, § 1395ii will not bar the suit. See Ill.

Council, 529 U.S. at 10-13, 17-20. The exception applies not

only when administrative regulations foreclose judicial review,

but also when roadblocks practically cut off any avenue to

federal court. As to the latter, it is not enough that claimants

would encounter “potentially isolated instances of the

inconveniences sometimes associated with the postponement of

judicial review,” or that their claims might not receive adequate

administrative attention. Id. at 23. The difficulties must be

severe enough to render judicial review unavailable as a

practical matter. Id. at 22-23. 

The Association denies that its claims in this case could

even become the subject of administrative proceedings. The

Secretary argues the opposite. The question therefore is whether

the Association could get its claims heard administratively and

whether it could receive judicial review after administrative

channeling. 

How the Association might have its claim heard in the

administrative proceedings leading to judicial review is easy to

see with respect to Count 4 of the complaint – the count

charging that the Secretary illegally permitted organizations

such as HMOs to require, as a condition of coverage, that the

enrollee obtain a referral from a medical doctor or an osteopath

for chiropractic correction of a subluxation. To have such a

claim heard, an enrollee could obtain the services of a

chiropractor without first obtaining a referral. After the HMO

refuses coverage because of the absence of a referral, the

enrollee could file a grievance with the HMO, claiming that the

referral requirement was illegal. See 42 U.S.C. § 1395w-
7

22(g)(1)(A); 42 C.F.R. §§ 422.562(a)(1), .566(a). This would

trigger the administrative process, at the end of which is judicial

review of the Secretary’s final decision. See 42 U.S.C.

§ 1395w-22(g)(5); 42 C.F.R. § 422.612(a), (c). The chiropractor

who provided the service could also mount an administrative

challenge by “waiv[ing] any right to payment from the enrollee”

and becoming the enrollee’s assignee. 42 C.F.R. § 422.574(b).

There are minimum amounts in controversy – $100 for a hearing

before an administrative law judge, $1000 for judicial review,

see 42 U.S.C. § 1395w-22(g)(5) – but the Secretary states

without contradiction that claims may be aggregated, see 42

C.F.R. §§ 405.817(a)(2), 422.600(b). The Association’s

objection that it could not itself become a party to the

administrative proceedings is an objection the Supreme Court

rejected in Illinois Council, 529 U.S. at 24. An association

“speaks only on behalf of its member[s], and thus has standing

only because of the injury those members allegedly suffer.” Id.;

see Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333,

343 (1977). We therefore agree with the district court that

Count 4 of the Association’s complaint is jurisdictionally barred.

Count 3 is more difficult. This alleges that the Secretary

misinterpreted § 1395x(r) to mean that not only chiropractors,

but also medical doctors and osteopaths could provide covered

services when they manually manipulated an enrollee’s spine to

correct the condition mentioned above. Suppose an HMO

permitted enrollees to receive this service from a medical doctor

or an osteopath or a chiropractor. Suppose also that a

participating chiropractor became a party to an administrative

proceeding in the manner just outlined. There would be a

dispute about the referral requirement, but that goes to Count 4.

Count 3 deals with who may provide the service. By hypothesis,

a chiropractor would have provided the service, and everyone

agrees that § 1395x(r) covers chiropractors. We can think of no

reason why an administrative decision-maker would reach out
8

to decide whether medical doctors and osteopaths may also do

so. The possibility of judicial review at the end of the

proceedings would be worthless. No court would adjudicate a

claim that was not in controversy. 

It would be another matter entirely if the HMO provided

that only medical doctors and osteopaths could furnish the

service at issue here. According to the Secretary’s report to

Congress, twenty-two percent of HMOs have such a restriction.

See note 1 supra. An enrollee in such an HMO could enlist the

services of a chiropractor and, as we discussed with respect to

Count 4, the chiropractor could become the enrollee’s assignee.

(As with Count 4, amounts in controversy may be aggregated to

obtain judicial review.) The chiropractor could then file an

administrative claim, arguing that the HMO must reimburse him

even though the HMO allows reimbursement only for medical

doctors and osteopaths. At this point the HMO would be

expected to defend on the ground that a regulation entitles it to

restrict the type of practitioners who may provide a service. The

regulation states that “[i]f more than one type of practitioner is

qualified to furnish a particular service, the HMO . . . may select

the type of practitioner to be used.” 42 C.F.R. § 417.416(b)(3)

(emphasis added). The HMO’s invocation of this provision

would squarely present the question whether medical doctors

and osteopaths, as well as chiropractors, are “qualified to

furnish” the service of manual manipulation of the spine to

correct a subluxation. It follows that chiropractors could receive

an administrative decision on the issue presented in Count 3 and

that under Illinois Council the district court had no jurisdiction

to decide that claim. 

We therefore affirm the district court’s judgment with

respect to Count 4. With respect to Count 3, we reverse the

judgment on the ground that the court lacked jurisdiction. 

So ordered.