FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIE H. GOFFNEY, JR., M.D.;

ADVANCED SURGICAL ASSOCIATES 

MEDICAL OFFICE, INC., a California 

corporation,

Plaintiffs-Appellants,

v.

XAVIER BECERRA, Secretary of the 

United States Department of Health 

and Human Services, in his official 

capacity,

Defendant-Appellee.

No. 19-56368

D.C. No.

2:17-cv-08032-

MRW

OPINION

Appeal from the United States District Court

for the Central District of California

Michael R. Wilner, Magistrate Judge, Presiding

Argued and Submitted March 2, 2021

Pasadena, California

Filed April 29, 2021
2 GOFFNEY V. BECERRA

Before: Susan P. Graber, Stephen A. Higginson,* and

Eric D. Miller, Circuit Judges.

Opinion by Judge Miller

SUMMARY**

Medicare

The panel affirmed the district court’s summary 

judgment entered in favor of the Secretary of Health and 

Human Services (“HHS”) in an action challenging HHS’s 

denial of plaintiff Dr. Willie Goffney’s claim for 

reimbursement from the Medicare program for services that 

he provided covered patients.

In 2012, Dr. Goffney was informed that his Medicare 

billing privileges had been deactivated in 2008. In 2015, Dr. 

Goffney attempted to reactivate his billing privileges. The 

Medicare contractor in his region, Nordian Healthcare 

Solutions, approved Dr. Goffney’s request, but assigned him 

a new effective date of August 31, 2015 – the date on which 

he submitted the forms to reactivate his billing privileges. 

That effective date precluded Dr. Goffney from obtaining 

compensation for services he had performed in the preceding 

decade. The HHS Departmental Appeals Board affirmed the 

agency’s denial of Dr. Goffney’s petition for review, and 

* The Honorable Stephen A. Higginson, United States Circuit Judge 

for the U.S. Court of Appeals for the Fifth Circuit, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
GOFFNEY V. BECERRA 3

concluded that Dr. Goffney had filed a qualifying 

“enrollment application” and that the effective-date 

provision of 42 C.F.R. § 424.520(d) controlled.

The panel held that 42 C.F.R. § 424.520(d) was 

ambiguous, and did not specify whether a certification 

submitted to reactivate billing privileges constituted a 

“Medicare enrollment application” that triggered a new 

effective date. Specifically, the panel held that the parties’ 

readings of other provisions of the regulations did not clearly 

resolve the ambiguity. The panel held that Section 

424.555(b) supported the government’s interpretation of 

“Medicare enrollment application” in this context. The 

panel further held that the regulatory history was not 

illuminating, and that considerations of purpose did not 

meaningfully affect its analysis. 

The panel applied the principles of Auer deference to the 

agency’s interpretation of its own regulations, and concluded 

that the interpretation reflected in the Departmental Appeals 

Board decision qualified for deference under Auer. Namely, 

section 424.520(d) was “genuinely ambiguous” in this 

context; the agency’s reading fell within the permissible 

zone of ambiguity; and the agency’s reading met all three of 

the additional criteria identified in Kisor v. Wilkie, 139 S. Ct. 

2400 (2019). First, the Board’s interpretation represented 

an authoritative statement of the agency. Second, the 

ambiguity implicated the agency’s core expertise because it 

involved the administration of the Medicare program. Third, 

the agency’s reading was consistent with how it had 

previously interpreted the relevant regulations. The panel 

concluded that under the agency’s interpretation of section 

424.520(d), Dr. Goffney’s reactivation request was “a 

Medicare enrollment application” and its filing date of 
4 GOFFNEY V. BECERRA

August 31, 2015 was the effective billing date of his billing 

privileges.

The panel held that the district court did not abuse its 

discretion in denying Dr. Goffney’s motion to order HHS to 

supplement the administrative record.

COUNSEL

Charles G. Smith (argued) and Dana M. Silva, Law Offices 

of Charles G. Smith, Sherman Oaks, California, for 

Plaintiffs-Appellants.

Daniel Aguilar (argued) and Mark B. Stern, Appellate Staff; 

Nicola T. Hanna, United States Attorney; Civil Division, 

United States Department of Justice, Washington, D.C.; for 

Defendant-Appellee.

OPINION

MILLER, Circuit Judge:

Dr. Willie Goffney sought reimbursement from the 

Medicare program for services that he provided to covered 

patients. Applying its interpretation of the governing 

regulation, the Department of Health and Human Services 

(HHS) denied his claim. The Supreme Court recently 

reaffirmed that a reviewing court should defer to an agency’s 

reasonable interpretation of ambiguous regulations. Kisor v. 

Wilkie, 139 S. Ct. 2400 (2019). We agree with the district 

court that the governing regulation is genuinely ambiguous 

and that the agency’s interpretation is reasonable. We also 

agree with the district court that its review was appropriately 
GOFFNEY V. BECERRA 5

confined to the administrative record the agency produced 

and that the agency was not required to supplement the 

record. We therefore affirm.

I

Medicare is a federally subsidized medical insurance 

program for the elderly and disabled. See 42 U.S.C. § 1395 

et seq.; Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 

506 (1994). The Centers for Medicare & Medicaid Services 

(CMS), an agency within HHS, oversees the Medicare 

program. See Pharmaceutical Rsch. & Mfrs. of Am. v. 

Walsh, 538 U.S. 644, 650 n.3 (2003). CMS contracts with 

private entities to administer the program. See 42 U.S.C. 

§§ 1395u(a), 1395kk-1(a); 42 C.F.R. § 421.5(b). Each 

Medicare contractor is responsible for a particular region of 

the country. 42 C.F.R. § 421.404(b)(1), (c)(1).

To be paid for performing Medicare services, healthcare 

providers must enroll in the program, at which point they 

receive billing privileges and a billing number. 42 C.F.R. 

§ 424.505. (The statute distinguishes between hospitals, 

which it calls “providers,” and physicians, whom it calls 

“suppliers,” but because nothing in this case turns on that 

distinction, we will refer to both as providers. 42 U.S.C. 

§ 1395x(d), (u).) Billing privileges are not permanent—once 

approved, they may be revoked or deactivated. 42 C.F.R.

§ 424.555(b). A revocation “means that . . . billing privileges 

are terminated.” Id. § 424.502. A deactivation “means that

. . . billing privileges were stopped, but can be restored upon 

the submission of updated information.” Id. Deactivation 

exists “to protect the provider . . . from misuse of its billing 

number and to protect the Medicare Trust Funds from 

unnecessary overpayments.” Id. § 424.540(c).
6 GOFFNEY V. BECERRA

Goffney is a surgical oncologist in Long Beach, 

California, who has provided services to Medicare patients 

since 1991. In 2005, Goffney stopped receiving payments 

for his Medicare claims, but he nonetheless continued to 

provide services to Medicare patients for the next decade. It 

is not clear—at least to us—exactly what happened during 

that period. The record suggests that Goffney provided 

services, received no payments, and made only occasional 

efforts to remedy the situation. But the exact sequence of 

events is not relevant to the legal issue before us.

In 2012, Goffney was informed that his Medicare billing 

privileges had been deactivated in 2008 because he had not 

submitted a claim for more than a year. See 42 C.F.R. 

§ 424.540(a)(1). Goffney argues that the deactivation was 

erroneous, but although the regulations provide a 

mechanism for a provider to challenge a deactivation, 

Goffney did not invoke that mechanism. See 42 C.F.R. 

§§ 405.374(a), 405.375(a), 424.545(b).

Instead, in 2015, Goffney attempted to reactivate his 

billing privileges. To do so, he submitted documents to 

Noridian Healthcare Solutions, the Medicare contractor in 

his region, verifying that his enrollment information had not 

changed. Specifically, he submitted portions of Forms CMS855B, CMS-855I, and CMS-855R—entitled “Medicare 

Enrollment Application”—which providers use for initial 

enrollment in the program, reactivation, and various other 

purposes. Goffney checked the box stating that he was 

“revalidating [his] Medicare enrollment.”

Goffney hoped—and, he says, a Noridian employee 

represented—that by recertifying the accuracy of his 

information, he could keep his original effective billing date 

and be paid for the services he had provided while his 

privileges were inactive. But when Noridian approved 
GOFFNEY V. BECERRA 7

Goffney’s request, it assigned him a new effective date of 

August 31, 2015—the date on which he had submitted the 

forms to reactivate his billing privileges. That effective date 

precluded Goffney from obtaining compensation for 

services he had performed in the preceding decade.

Goffney sought reconsideration, but Noridian denied his 

request. It relied on 42 C.F.R. § 424.520(d), which provides 

that “[t]he effective date for billing privileges for 

physicians” is “[t]he date of filing of a Medicare enrollment 

application that was subsequently approved by a Medicare 

contractor.” Reasoning that what Goffney filed on August 

31, 2015 was an “enrollment application,” Noridian 

concluded that section 424.520(d) made that date the 

effective date of his reactivated billing privileges.

Goffney then petitioned for review before an HHS 

administrative law judge, arguing that a certification 

attesting to the accuracy of existing enrollment information 

does not constitute an “enrollment application” under 

section 424.520(d). The administrative law judge denied 

Goffney’s petition.

The HHS Departmental Appeals Board affirmed. The 

Board concluded that Goffney had filed a qualifying 

“enrollment application” and that the effective-date 

provision of section 424.520(d) controlled. The Board 

emphasized that no other regulation sets the effective date 

for Medicare billing privileges. The Board also determined 

that it lacked authority to consider the circumstances 

surrounding Goffney’s initial deactivation, the Medicare 

claims he submitted while his billing privileges were 

inactive, or his equitable arguments about Noridian’s 

representations to him.
8 GOFFNEY V. BECERRA

Having exhausted his administrative remedies, Goffney 

sought review of the agency’s decision in federal district 

court. See 42 U.S.C. §§ 405(g), 1395cc(h)(1)(A). Goffney 

asked the district court to order the agency to supplement the 

administrative record to include additional materials related 

to the agency’s decision. The district court denied the 

motion.

The district court granted summary judgment to the 

Secretary of HHS. The court reasoned that HHS regulations 

contain “a pretty obvious silence . . . about whether a past

‘effective date’ is warranted following reactivation,” and 

therefore the “regulations are ‘genuinely ambiguous’ in this 

area.” It concluded that the agency’s interpretation of the 

regulations was entitled to deference and that the agency had 

“provided a reasonable basis for applying the Section 

424.520 effective date to [Goffney’s] circumstance.”

II

In this appeal, Goffney does not challenge the agency’s 

conclusions about the scope of its authority, nor does he 

dispute that the agency correctly identified August 31, 2015 

as the date on which he submitted his reactivation request. 

He also does not dispute that under section 424.520(d), 

“[t]he effective date for billing privileges for physicians [is] 

the date of filing of a Medicare enrollment application that 

was subsequently approved.” The sole question before us is 

whether Goffney’s reactivation request constituted a 

“Medicare enrollment application” within the meaning of 

section 424.520(d), such that its filing date of August 31, 

2015 is the effective date of his billing privileges. More 

specifically, the question before us is whether to accept the 

Departmental Appeals Board’s interpretation of section 

424.520(d)’s phrase “Medicare enrollment application.”
GOFFNEY V. BECERRA 9

The Supreme Court has held that an agency’s 

interpretation of its own regulation is entitled to deference 

when, among other things, the regulation is “genuinely 

ambiguous.” Kisor, 139 S. Ct. at 2415. With that in mind, 

we first “exhaust all the ‘traditional tools’ of construction” 

in an effort to interpret the regulation by examining its “text, 

structure, history, and purpose.” Id. (quoting Chevron U.S.A. 

Inc. v. NRDC, Inc., 467 U.S. 837, 843 n.9 (1984)); see 

Minnick v. Commissioner, 796 F.3d 1156, 1159 (9th Cir. 

2015) (per curiam) (“Regulations are interpreted according 

to the same rules as statutes, applying traditional rules of 

construction.”). Because we conclude that the regulation is 

ambiguous, we then consider what principles of deference 

apply.

A

Section 424.520(d) itself does not specify whether a 

certification submitted to reactivate billing privileges 

constitutes a “Medicare enrollment application” that triggers 

a new effective date. The parties direct us to various other 

provisions of the regulations. One supports Goffney’s 

reading and others support the government’s, and they do not 

clearly resolve the ambiguity.

The regulations contain a definitional section, and 

because an express textual definition would be controlling, 

we begin there. See Burgess v. United States, 553 U.S. 124, 

129–30 (2008). Unfortunately, “Enrollment application” is 

defined unhelpfully, for our purposes, as “a CMS-approved 

paper enrollment application or an electronic Medicare 

enrollment process.” 42 C.F.R. § 424.502.

“Enroll/Enrollment” are also defined terms, but their 

definitions shed no more light. Id. They refer to “the process 

that Medicare uses to establish eligibility to submit claims 

for Medicare-covered items and services,” which includes 
10 GOFFNEY V. BECERRA

“validating the provider[’s] eligibility to provide items or 

services to Medicare beneficiaries” and “granting the 

Medicare provider . . . Medicare billing privileges.” Id. The 

reference to “granting . . . billing privileges” could perhaps 

be construed to encompass the reactivation of billing 

privileges, but even on that understanding, it would not 

necessarily follow that a request for reactivation would 

constitute a “Medicare enrollment application” under 

section 424.520(d).

Goffney principally relies on 42 C.F.R. § 424.540(b) 

(2012), entitled “Deactivation of Medicare billing 

privileges.” Although that provision has since been 

amended, the amendment is not relevant to the issue in this 

case, and the agency’s commentary explains that it was 

intended simply to reduce “confusion” by “clarif[ying]” the 

language of the rule. Medicare, Medicaid, and Children’s 

Health Insurance Programs; Program Integrity 

Enhancements to the Provider Enrollment Process, 84 Fed. 

Reg. 47,794, 47,839 (Sept. 10, 2019). We therefore confine 

our analysis to the version of the regulation that was in effect 

at the time of the events in this case.

Section 424.540(b) outlines two procedures by which a 

provider can reactivate billing privileges. A provider who 

has been “deactivated for any reason other than 

nonsubmission of a claim . . . must complete and submit a 

new enrollment application to reactivate its Medicare billing 

privileges or, when deemed appropriate, at a minimum, 

recertify that the enrollment information currently on file 

with Medicare is correct.” 42 C.F.R. § 424.540(b)(1) (2012). 

On the other hand, a provider deactivated for nonsubmission 

of a claim need only “recertify that the enrollment 

information currently on file with Medicare is correct and 
GOFFNEY V. BECERRA 11

furnish any missing information as appropriate.” Id.

§ 424.540(b)(2) (2012).

Goffney emphasizes that only paragraph (b)(1) refers to 

the filing of a “new enrollment application.” In his view, 

section 424.540(b) creates a negative implication that when 

a provider is deactivated for “nonsubmission of a claim”—

as Goffney was—the provider need not submit a “new 

enrollment application.” But while that is a reasonable 

inference, it is not conclusive here. Section 424.520(d) 

provides for an effective billing date upon the contractor’s 

receipt of an “enrollment application”—unlike section 

424.540(b), it does not contain the qualifier “new.” So while 

there is a strong argument that what Goffney filed was not a 

“new enrollment application,” his filing might still have been 

an “enrollment application.”

The government points to two other provisions, and 

while they both support its alternative reading, neither is 

decisive. First, 42 C.F.R. § 424.515 states that Medicare 

providers “must resubmit and recertify the accuracy of 

[their] enrollment information every 5 years,” a process that 

involves submitting an “enrollment application and 

supporting documentation,” id. § 424.515(a). That provision 

suggests that the term “enrollment application” can describe 

more than just a provider’s very first submission to enroll in 

Medicare—and that a recertification, at least in this context, 

might be one example of what is included. Accord id. 

§§ 405.818, 424.510(d)(3)(ii) (both using the term 

“enrollment application” in other contexts that appear not to 

be restricted to initial enrollment).

Second, the government relies on 42 C.F.R. 

§ 424.555(b), which restricts the government’s payment 

liability by specifying that “[n]o payment may be made for 

otherwise Medicare covered items or services furnished to a 
12 GOFFNEY V. BECERRA

Medicare beneficiary by a provider . . . if the billing 

privileges of the provider . . . are deactivated, denied, or 

revoked.” The government reads that provision to mean that 

a provider cannot ever bill Medicare for services that it 

renders while its billing privileges are deactivated. If that is 

true, it logically follows that the effective date of a 

provider’s billing privileges should be reset upon the 

reactivation of those privileges. See 42 C.F.R. § 424.5(a)(2). 

Goffney responds that section 424.555(b) just means that a 

provider must have reactivated its billing privileges by the 

time of payment.

We think the government has the better reading of 

section 424.555(b) because another regulation provides that 

the agency will make payments only if “[t]he services [were] 

furnished by a provider . . . that was, at the time it furnished 

the services, qualified to have payment made for them.” 

42 C.F.R. § 424.5(a)(2). That interpretation also accords 

with section 424.555(c), which states that providers that 

furnish services for which section 424.555(b) prohibits 

payment are responsible for “any expense incurred” in 

providing those services. If a provider could seek 

retrospective payments once it reestablished its billing 

privileges, section 424.555(c) would make little sense. 

Although the regulations do permit retrospective billing in 

certain narrow circumstances, see, e.g., 42 C.F.R. 

§ 424.521(a), HHS has not allowed that practice as a general 

matter, see Urology Grp. of NJ, LLC, DAB No. 2860, 2018 

WL 4144023 (H.H.S. 2018) (explaining that “a deactivated 

provider . . . was not intended to be entitled to Medicare 

reimbursement for services rendered during the period of 

deactivation”). Section 424.555 thus supports the 

government’s interpretation of “Medicare enrollment 

application” in this context.
GOFFNEY V. BECERRA 13

Finally, we consider the regulatory history and purpose. 

See Kisor, 139 S. Ct. at 2415. The history is not illuminating, 

and we conclude that considerations of purpose do not 

meaningfully affect our analysis. Section 424.540(c) states 

that the agency deactivates billing privileges “to protect the 

provider . . . from misuse of its billing number and to protect 

the Medicare Trust Funds from unnecessary overpayments.” 

The government argues that this purpose would be frustrated 

if the agency had to presume that every claim submitted 

during a period of deactivation was legitimate, and that to 

avoid that result, it must set a new effective billing date. That 

justification makes some sense, especially in a case like this 

one, in which the provider’s billing privileges were 

apparently inactive for a decade. (To be clear, the record 

contains no suggestion that any of Goffney’s claims were

fraudulent.)

On the other hand, regulations, like statutes, often reflect 

compromises among competing objectives, and “it is quite 

mistaken to assume . . . that ‘whatever’ might appear to 

‘further[] the statute’s primary objective must be the law.’” 

Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 

1725 (2017) (alteration in original) (quoting Rodriguez v. 

United States, 480 U.S. 522, 526 (1987) (per curiam)). And 

even under Goffney’s reading of section 424.555(b), the 

agency would not be required to pay claims submitted during 

a period of deactivation until after the provider’s billing 

privileges were reactivated. In that situation, the provider 

would have confirmed the accuracy of its information, so 

there would be little reason to suspect that past claims were 

fraudulent. The regulations also set time limits on when 

claims can be filed—generally within one year of the 

service, see 42 C.F.R. § 424.44—further reducing the 

concern about fraudulent billing. The regulatory purpose 

therefore does not help us resolve the textual ambiguity.
14 GOFFNEY V. BECERRA

B

Because this case “involves an interpretation of an 

administrative regulation,” we must “look to the 

administrative construction of the regulation if the meaning 

of the words used is in doubt.” Bowles v. Seminole Rock &

Sand Co., 325 U.S. 410, 413–14 (1945). When an agency 

interprets its own ambiguous regulation, the agency’s 

interpretation is generally “of controlling weight unless it is 

plainly erroneous or inconsistent with the regulation.” Id. at 

414. Although Seminole Rock represents one of the Supreme 

Court’s earliest expositions of that principle, the doctrine has 

come to be associated with the Court’s more recent decision 

in Auer v. Robbins, 519 U.S. 452, 461 (1997).

The Supreme Court recently reaffirmed Auer deference, 

but in doing so, it noted some limitations on the doctrine’s 

scope. See Kisor, 139 S. Ct. at 2408. The most important 

limitation is that the regulation must be “genuinely 

ambiguous.” Id. at 2415; Christensen v. Harris County, 

529 U.S. 576, 588 (2000). In other words, a court may not 

“wave the ambiguity flag” and abandon its interpretive 

efforts simply because the regulation appears “impenetrable 

on first read” or “make[s] the eyes glaze over.” Kisor, 

139 S. Ct. at 2415. Instead, a court must first “exhaust all 

the ‘traditional tools’ of construction” and consider the 

regulation’s “text, structure, history, and purpose,” just as it 

would “if it had no agency to fall back on.” Id. (quoting 

Chevron, 467 U.S. at 843 n.9). Even then, it may defer only 

to an agency interpretation that is “reasonable,” Thomas 

Jefferson Univ., 512 U.S. at 515, in the sense that it falls 

within the permissible “zone of ambiguity” created by the 

regulation. Kisor, 139 S. Ct. at 2415–16.

Although Auer deference to an agency’s interpretation of 

a regulation is conceptually distinct from Chevron deference 
GOFFNEY V. BECERRA 15

to an agency’s interpretation of a statute, the two forms of 

deference operate in similar ways. See Kisor, 139 S. Ct. 

at 2416 (rejecting the suggestion that “agency constructions 

of rules receive greater deference than agency constructions 

of statutes”). Like Auer deference, Chevron deference 

applies only if a court first deems a statute ambiguous after 

exhausting “traditional tools of statutory construction.” 

Chevron, 467 U.S. at 843 n.9; Turtle Island Restoration 

Network v. United States Dep’t of Com., 878 F.3d 725, 733 

(9th Cir. 2017). And even when a statute is ambiguous at 

Chevron step one, the agency’s resolution of the ambiguity 

must be reasonable to survive step two. Compare Chevron, 

467 U.S. at 845, with Kisor, 139 S. Ct. at 2415–16. In other 

words, “where Congress has established an ambiguous line, 

the agency can go no further than the ambiguity will fairly 

allow.” City of Arlington v. FCC, 569 U.S. 290, 307 (2013); 

see United States v. Home Concrete & Supply, LLC, 

566 U.S. 478, 493 n.1 (2012) (Scalia, J., concurring in part 

and concurring in the judgment) (“It does not matter whether 

the word ‘yellow’ is ambiguous when the agency has 

interpreted it to mean ‘purple.’”); Global Tel*Link v. FCC, 

866 F.3d 397, 419 (D.C. Cir. 2017) (Silberman, J., 

concurring).

The Court in Kisor held that even if those threshold 

requirements are satisfied, an agency’s interpretation must 

satisfy three other criteria to merit deference under Auer. See 

Kisor, 139 S. Ct. at 2416–18. First, the interpretation “must 

be the agency’s ‘authoritative’ or ‘official position,’” and not 

merely an “ad hoc statement not reflecting the agency’s 

views.” Id. at 2416 (quoting United States v. Mead Corp., 

533 U.S. 218, 257–59, 258 n.6 (2001) (Scalia, J., 

dissenting)). That means that the interpretation must 

“emanate from those actors, using those vehicles, 
16 GOFFNEY V. BECERRA

understood to make authoritative policy in the relevant 

context.” Id.

Second, “the agency’s interpretation must in some way 

implicate its substantive expertise.” Kisor, 139 S. Ct. 

at 2417; see Martin v. Occupational Safety & Health Rev. 

Comm’n, 499 U.S. 144, 152–53 (1991). The “most obvious” 

situation in which that criterion is satisfied is “when a rule is 

technical.” Kisor, 139 S. Ct. at 2417. But it can also be 

satisfied in situations involving “more prosaic-seeming 

questions” as long as the agency has some “comparative 

expertise” and the issue is not one that “fall[s] more naturally 

into a judge’s bailiwick.” Id.; see City of Arlington, 569 U.S. 

at 309 (Breyer, J., concurring in part); cf. Adams Fruit Co. v. 

Barrett, 494 U.S. 638, 649–50 (1990).

Third, the interpretation must reflect the agency’s “fair 

and considered judgment.” Kisor, 139 S. Ct. at 2417 

(quoting Christopher v. SmithKline Beecham Corp., 

567 U.S. 142, 155 (2012)). That does not mean that the 

agency must engage in an exhaustive interpretive 

discussion—even an interpretation implicit in an agency’s 

order can reflect the agency’s “fair and considered 

judgment.” See Association of Bituminous Contractors, Inc. 

v. Apfel, 156 F.3d 1246, 1252 (D.C. Cir. 1998); accord 

Southern Utah Wilderness All. v. Office of Surface Mining 

Reclamation & Enf’t, 620 F.3d 1227, 1236 (10th Cir. 2010). 

Rather, this part of the test protects reliance interests 

associated with longstanding agency practices or 

interpretations. Courts may not defer to an interpretation that 

“creates ‘unfair surprise’ to regulated parties” or that 

amounts “to a merely ‘convenient litigating position.’” 

Kisor, 139 S. Ct. at 2417–18 (first quoting Long Island Care 

at Home, Ltd. v. Coke, 551 U.S. 158, 170 (2007), and then 

quoting Christopher, 567 U.S. at 155).
GOFFNEY V. BECERRA 17

C

Applying those principles here, we conclude that the 

interpretation reflected in the Departmental Appeals Board’s 

decision qualifies for deference under Auer. As we have 

explained, section 424.520(d) is “genuinely ambiguous” in 

this context, and the agency’s reading falls within the 

permissible zone of ambiguity. Kisor, 139 S. Ct. at 2415–16. 

And the agency’s reading meets all three of the additional 

criteria identified in Kisor.

First, the Board’s interpretation represents an 

authoritative statement of the agency. The Secretary of HHS 

appoints the Board’s members, 45 C.F.R. § 16.5(a), and the 

Board “generally issues HHS’s final decision, which may 

then be appealed to a federal court.” Arizona Health Care 

Cost Containment Sys. v. McClellan, 508 F.3d 1243, 1248 

n.6 (9th Cir. 2007). The Board’s decision is the product of a 

formal process that merits deference. Cf. id. at 1249, 1253–

54 (deferring under Chevron to the Board’s interpretation of 

an ambiguous statute).

Second, the ambiguity implicates the agency’s core 

expertise because it involves the administration of the 

Medicare program. See Kisor, 139 S. Ct. at 2417. The 

regulatory scheme allows providers to bill only in certain 

circumstances and limits their ability to receive Medicare 

payments depending on their billing status. See 42 C.F.R. 

§§ 424.521(a), 424.555(b). The regulations also reflect 

HHS’s policy of deactivating billing privileges to prevent 

Medicare fraud and to protect the public fisc. See 42 C.F.R. 

§ 424.540(c). The ambiguity here affects the implementation 

of that policy, and the agency has “comparative expertise” 

in resolving the issue. Kisor, 139 S. Ct. at 2417. See 

generally Urology Grp. of NJ, DAB No. 2860.
18 GOFFNEY V. BECERRA

Third, far from being a new interpretation or one that 

would create unfair surprise, the agency’s reading is 

consistent with how it has previously interpreted the relevant 

regulations. See Kisor, 139 S. Ct. at 2417–18; cf. 

Christopher, 567 U.S. at 155–57. CMS’s Program Integrity 

Manual (PIM)—a guidebook that instructs Medicare 

contractors on how to process provider applications, pay 

claims, and minimize fraud—has long required contractors 

to reset providers’ effective billing dates when they grant 

reactivation requests. See Urology Grp. of NJ, DAB 

No. 2860 (explaining that since 2009, the PIM has treated a 

“reactivation application . . . as an initial enrollment 

application” for purposes of section 424.520(d) (quoting 

Medicare Program Integrity Manual § 10.6.1.4 (rev. 289, 

Jan. 1, 2009))); see also Medicare Program Integrity Manual 

§ 15.27.1.2 (rev. 865, Mar. 12, 2019); id. § 15.27.1.2.1 (rev. 

765, Jan. 1, 2018); id. § 15.27.1.2.2 (rev. 765, Jan. 1, 2018). 

More than a decade ago, the Board recognized, if not tacitly 

endorsed, that interpretation. See Arkady B. Stern, DAB No. 

2329, 2010 WL 3810867, at *3 & n.5 (H.H.S. 2010) 

(interpreting the PIM to mean that “a reactivated provider 

will have a new effective date”). Indeed, when Noridian 

denied Goffney’s reconsideration request, it cited the PIM 

for the same principle.

As currently written, section 15.27.1.2.2(A) of the PIM 

requires providers seeking reactivation to submit a packet of 

documents that CMS calls a “reactivation certification 

package,” even if their enrollment information has not 

changed. Section 15.27.1.2 says that if “the contractor 

approves a provider’s . . . reactivation application or 

reactivation certification package . . . the reactivation 

effective date shall be based on the date the contractor 

received the application or [reactivation certification 

package].” The PIM therefore directly resolves the 
GOFFNEY V. BECERRA 19

ambiguity at issue here. And even though the PIM, like its 

counterpart in the social security context, “does not impose 

judicially enforceable duties,” Lockwood v. Commissioner 

Soc. Sec. Admin., 616 F.3d 1068, 1073 (9th Cir. 2010); see 

42 C.F.R. § 405.1062(a), it still shows that HHS’s 

interpretation is more than just a “convenient litigating 

position,” Christopher, 567 U.S. at 155.

Goffney argues that the Board’s decision was not a “fair 

and considered judgment” because it was “ad hoc”; it 

“ignore[d] the plain language of Section 520”; and it did not 

cite “any legal precedent or administrative rules.” We 

disagree. The Board invoked section 424.520(d), quoted the 

relevant “recertification” language from section 424.540(b), 

and recognized that the contractor had “treated [Goffney’s 

request] as an application . . . to reactivate his billing 

privileges.” Even if its analysis could have been more 

comprehensive, the Board resolved the legal question of 

whether section 424.520(d) applies to reactivation requests 

like Goffney’s. See Association of Bituminous Contractors,

156 F.3d at 1252.

We conclude that the Board’s interpretation of section 

424.520(d) merits Auer deference and controls this case. See

519 U.S. at 461. Under that interpretation, Goffney’s 

reactivation request was “a Medicare enrollment 

application,” and its filing date of August 31, 2015 is the 

effective date of his billing privileges.

III

The district court did not abuse its discretion in denying 

Goffney’s motion to order HHS to supplement the 

administrative record. See Lands Council v. Powell, 

395 F.3d 1019, 1030 n.11 (9th Cir. 2005). Goffney argues 

that the agency failed to include in the record all materials 
20 GOFFNEY V. BECERRA

related to its decision to assign him an August 31, 2015 

effective billing date. In his view, “[t]he missing documents 

likely show that the Agency’s decision was arbitrary and 

capricious.” He does not, however, identify any specific 

documents that he believes to be missing.

The Administrative Procedure Act requires us to review 

an agency’s action based on “the whole record.” 5 U.S.C. 

§ 706. That “includes everything that was before the agency 

pertaining to the merits of its decision.” Portland Audubon 

Soc’y v. Endangered Species Comm., 984 F.2d 1534, 1548 

(9th Cir. 1993); see Thompson v. United States Dep’t of 

Labor, 885 F.2d 551, 555–56 (9th Cir. 1989) (“The ‘whole’ 

administrative record . . . consists of all documents and 

materials directly or indirectly considered by agency 

decision-makers.” (emphasis omitted) (quoting Exxon Corp. 

v. Department of Energy, 91 F.R.D. 26, 33 (N.D. Tex. 

1981))). HHS has codified that requirement in a regulation 

that directs the Office of Medicare Hearings and Appeals—

the agency tasked with compiling the record for HHS 

administrative proceedings—to include in the record “the 

appealed determinations, and documents and other evidence 

used in making the appealed determinations and the ALJ’s 

or attorney adjudicator’s decision,” as well as any proffered 

evidence excluded by the adjudicator. 42 C.F.R. 

§ 405.1042(a)(2).

We have explained that a court reviewing an agency’s 

action may examine “extra-record evidence” only in 

“limited circumstances” that are “narrowly construed and 

applied.” Lands Council, 395 F.3d at 1030 (citing Camp v. 

Pitts, 411 U.S. 138, 142–43 (1973) (per curiam)). Such 

circumstances are present, for example, when “the agency 

has relied on documents not in the record” or “when 

plaintiffs make a showing of agency bad faith.” Id. (quoting
GOFFNEY V. BECERRA 21

Southwest Ctr. for Biological Diversity v. United States 

Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996)); see 

Department of Com. v. New York, 139 S. Ct. 2551, 2573–74 

(2019); Portland Audubon Soc’y, 984 F.2d at 1548. But like 

other official agency actions, an agency’s statement of what 

is in the record is subject to a presumption of regularity. See 

Angov v. Lynch, 788 F.3d 893, 905 (9th Cir. 2015). We must 

therefore presume that an “agency properly designated the 

Administrative Record absent clear evidence to the 

contrary.” Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 

(10th Cir. 1993); accord Oceana, Inc. v. Ross, 920 F.3d 855, 

865 (D.C. Cir. 2019); see also Angov, 788 F.3d at 905 (“[I]n 

the absence of clear evidence to the contrary, courts presume 

that [government officials] have properly discharged their 

official duties.” (quoting National Archives & Records 

Admin. v. Favish, 541 U.S. 157, 174 (2004))).

Goffney has not presented “clear evidence”—or any 

evidence at all. His argument rests on speculation that the 

agency must have considered more documents than it said it 

had because, in his view, the agency’s decision was 

“unprecedented.” As the district court recognized, however, 

Goffney’s petition posed a legal issue, not a factual one. 

Noridian’s denial of Goffney’s reconsideration request 

shows that Noridian reviewed Goffney’s application, section 

424.520(d), the PIM, and Noridian’s policy about its 

authority to set billing privileges. It does not follow that 

there must be additional documents underpinning Noridian’s 

decision. Nor is there any indication that the ALJ or the 

Board relied on any other materials in reaching their 

decisions.

Goffney also claims that CMS’s decision “to deny 

benefits in this manner appeared only to apply to physicians 

of color” and that the agency has “manipulate[d] the 
22 GOFFNEY V. BECERRA

administrative record” to shield it from review. In his district 

court filings, Goffney did not so much as hint at the 

possibility of racial bias; to the contrary, he stated that “there 

is no allegation of bad faith in this case.” Goffney has 

provided no evidence of bias, and the record reveals none.

AFFIRMED.