SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES, et al. v. ILLINOIS COUNCIL ON LONG TERM CARE, INC.

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CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1999
SHALALA, SECRETARY OF HEALTH AND HUMAN
SERVICES, et al. v. ILLINOIS COUNCIL ON
LONG TERM CARE, INC.
certiorari to the united states court of appeals for
the seventh circuit
No. 98–1109. Argued November 8, 1999—Decided February 29, 2000
Under the Medicare Act’s special review provisions, a nursing home that
is “dissatisfied . . . with a determination described in subsection (b)(2)”
is “entitled to a hearing . . . to the same extent as is provided in” the
Social Security Act, 42 U. S. C. § 405(b), “and to judicial review of the
Secretary’s final decision after such hearing as is provided in section
405(g) . . . .” 42 U. S. C. § 1395cc(h)(1) (emphasis added). The cross-
referenced subsection (b)(2) gives petitioner Secretary of Health and
Human Services (HHS) power to terminate a provider agreement with
a home where, for example, she determines that a home has failed to
comply substantially with the statute and the regulations. The cross-
referenced § 405(b) describes the administrative hearing to which a
“dissatisfied” home is entitled, and the cross-referenced § 405(g) pro-
vides that the home may obtain federal district court review of the Sec-
retary’s “final decision . . . made after a hearing . . . .” Section 405(h),
a provision of the Social Security Act incorporated into the Medicare
Act by 42 U. S. C. § 1395ii, provides that “[n]o action . . . to recover
on any claim arising under” the Medicare laws shall be “brought under
[28 U. S. C. § ]1331.” It channels most, if not all, Medicare claims
through this special review system. Respondent, the Illinois Coun-
cil on Long Term Care, Inc. (Council), an association of nursing homes,
1

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2 SHALALA v. ILLINOIS COUNCIL ON LONG
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Syllabus
did not rely on these provisions when it filed suit against, inter alios,
petitioners (hereinafter Secretary), challenging the validity of Medi-
care regulations that impose sanctions or remedies on nursing homes
that violate certain substantive standards. Rather, it invoked federal-
question jurisdiction, 28 U. S. C. § 1331. In dismissing for lack of juris-
diction, the Federal District Court found that 42 U. S. C. § 405(h), as
interpreted in Weinberger v. Salfi, 422 U. S. 749, and Heckler v. Ringer,
466 U. S. 602, barred a § 1331 suit. The Seventh Circuit reversed, hold-
ing that Bowen v. Michigan Academy of Family Physicians, 476 U. S.
667, had significantly modified such earlier case law.
Held: Section 405(h), as incorporated by § 1395ii, bars federal-question
jurisdiction here. Pp. 10–25.
(a) Section 405(h) purports to make exclusive § 405(g)’s judicial re-
view method. While its “to recover on any claim arising under” lan-
guage plainly bars § 1331 review where an individual challenges on
any legal ground the agency’s denial of a monetary benefit under the
Social Security and Medicare Acts, the question here is whether an
anticipatory challenge to the lawfulness of a policy, regulation, or stat-
ute that might later bar recovery or authorize imposition of a penalty
is also an action “to recover on any claim arising under” those Acts.
P. 10.
(b) Were the Court not to take account of Michigan Academy, § 405(h),
as interpreted in Salfi and Ringer, would clearly bar this § 1331 lawsuit.
The Court found in the latter cases that § 405(h) applies where “both
the standing and the substantive basis for the presentation” of a claim
is the Social Security Act, Salfi, supra, at 760–761, or the Medicare Act,
Ringer, 466 U. S., at 615. All aspects of a present or future benefits
claim must be channeled through the administrative process. Id., at
621–622. As so interpreted, § 405(h)’s bar reaches beyond ordinary
administrative law principles of “ripeness” and “exhaustion of admin-
istrative remedies”—doctrines that normally require channeling a legal
challenge through the agency—by preventing the application of excep-
tions to those doctrines. This nearly absolute channeling requirement
assures the agency greater opportunity to apply, interpret, or revise
policies, regulations, or statutes without possibly premature inter-
ference by individual courts applying “ripeness” and “exhaustion” ex-
ceptions case by case. The assurance comes at the price of occasional
individual, delay-related hardship, but paying such a price in the con-
text of a massive, complex health and safety program such as Medi-
care was justified in the judgment of Congress as understood in Salfi
and Ringer. Salfi and Ringer cannot be distinguished from the instant

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3 Cite as: 529 U. S. 1 (2000)
Syllabus
case. They themselves foreclose distinctions based upon the “poten-
tial future” versus “actual present” nature of the claim, the “general
legal” versus the “fact-specific” nature of the challenge, the “collateral”
versus the “noncollateral” nature of the issues, or the “declaratory”
versus “injunctive” nature of the relief sought. Nor can the Court
accept a distinction that limits § 405(h)’s scope to claims for monetary
benefits or that involve “amounts,” as neither the language nor the pur-
poses of § 405 support such a distinction. Neither McNary v. Haitian
Refugee Center, Inc., 498 U. S. 479, nor Mathews v. Eldridge, 424 U. S.
319, supports the Council’s effort to distinguish Salfi and Ringer. The
Court’s approval of a § 1331 suit against the Immigration and Natu-
ralization Service in McNary rested on the different language of the
immigration statute. And Eldridge was a case in which the respondent
had complied with, not disregarded, the Social Security Act’s special
review procedures—specifically the nonwaivable and nonexcusable re-
quirement that an individual present a claim to the agency before rais-
ing it in court. The upshot is that the Council’s argument must rest
primarily upon Michigan Academy. Pp. 11–15.
(c) Michigan Academy did not, contrary to the Court of Appeals’
holding, modify the Court’s earlier holdings by limiting § 405(h)’s scope,
as incorporated by § 1395ii, to “amount determinations.” That case in-
volved the lawfulness of HHS regulations governing procedures used
to calculate Medicare Part B benefits; and the Medicare statute, as
it then existed, did not provide for § 405(g) review of such decisions.
The Court ruled that this silence did not itself foreclose § 1331 review.
In response to the argument that § 405(h) barred § 1331 review, the
Court declined to pass in the abstract on the meaning of § 405(h) be-
cause that section was made applicable to the Medicare Act “to the
same extent as” it is applicable to the Social Security Act by virtue
of 42 U. S. C. § 1395ii. The Court interpreted that phrase to foreclose
application of § 405(h) where its application would preclude judicial
review rather than channel it through the agency. As limited by the
Court of Appeals, Michigan Academy would have overturned or dra-
matically limited earlier precedents such as Salfi and Ringer, and would
have created a hardly justifiable distinction between “amount determi-
nations” and many similar HHS determinations. This Court does
not normally overturn, or so dramatically limit, earlier authority sub
silentio, and it did not do so here. Pp. 15–20.
(d) The Council’s argument that it falls within the Michigan Acad-
emy exception because it can obtain no review at all unless it can obtain
§ 1331 review is unconvincing. It argues that review is available only
after the Secretary terminates a home’s provider agreement. But in

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4 SHALALA v. ILLINOIS COUNCIL ON LONG
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Syllabus
her brief and regulations, the Secretary offers a legally permissible in-
terpretation of the statute: that it permits a dissatisfied nursing home
to have an administrative hearing on a determination that it has failed
to comply substantially with the statute, agreements, or regulations,
whether termination or some other remedy is imposed. See, e. g., Chev-
ron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S.
837, 843. The Secretary also denies that she engages in any practice
that forces a home to submit a corrective plan and sacrifice appeal rights
in order to avoid termination, or that penalizes more severely a home
that chooses to appeal. Because the Council offers no convincing rea-
son to doubt her description of the agency’s practice, the Court need
not decide whether a practice that forced homes to abandon legitimate
challenges could amount to the practical equivalent of a total denial of
judicial review. If, as the Council argues, the regulations unlawfully
limit the extent to which the agency will provide the administrative
review channel leading to judicial review, its members remain free, after
following the special review route, to contest in court the lawfulness of
the relevant regulation or statute. That is true even if the agency does
not or cannot resolve the particular contention, because it is the “action”
arising under the Medicare Act that must be channeled through the
agency. The Council finally argues that, as an association speaking on
behalf of its injured members, it has no standing to take advantage of
the special review channel. However, it is the members’ rights to re-
view that are at stake, and the statutes creating the special review
channel adequately protect those rights. Pp. 20–24.
143 F. 3d 1072, reversed.
Breyer, J., delivered the opinion of the Court, in which Rehn-
quist, C. J., and O’Connor, Souter, and Ginsburg, JJ., joined. Ste-
vens, J., post, p. 30, and Scalia, J., post, p. 31, filed dissenting opinions.
Thomas, J., filed a dissenting opinion, in which Stevens and Kennedy,
JJ., joined, and in which Scalia, J., joined except as to Part III, post,
p. 32.
Jeffrey A. Lamken argued the cause for petitioners.
With him on the briefs were Solicitor General Waxman,
Acting Assistant Attorney General Ogden, Deputy Solicitor
General Kneedler, Barbara C. Biddle, Jeffrey Clair, Harriet
S. Rabb, and Jeffrey Golland.

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5 Cite as: 529 U. S. 1 (2000)
Opinion of the Court
Kimball R. Anderson argued the cause for respondent.
With him on the brief were Charles P. Sheets, Bruce R.
Braun, and Brian E. Neuffer.*
Justice Breyer delivered the opinion of the Court.
The question before us is one of jurisdiction. An associa-
tion of nursing homes sued, inter alios, the Secretary of
Health and Human Services (HHS) and another federal
party (hereinafter Secretary) in Federal District Court
claiming that certain Medicare-related regulations violated
various statutes and the Constitution. The association in-
voked the court’s federal-question jurisdiction, 28 U. S. C.
§ 1331. The District Court dismissed the suit on the ground
that it lacked jurisdiction. It believed that a set of special
statutory provisions creates a separate, virtually exclusive,
system of administrative and judicial review for denials of
Medicare claims; and it held that one of those provisions ex-
plicitly barred a § 1331 suit. See 42 U. S. C. § 1395ii (incor-
porating into the Medicare Act 42 U. S. C. § 405(h), which
provides that “[n]o action . . . to recover on any claim” arising
under the Medicare laws shall be “brought under section
1331 . . . of title 28”). The Court of Appeals, however,
reversed.
We conclude that the statutory provision at issue, § 405(h),
as incorporated by § 1395ii, bars federal-question jurisdiction
here. The association or its members must proceed instead
through the special review channel that the Medicare stat-
utes create. See 42 U. S. C. §§ 1395cc(h), (b)(2)(A), 1395ii;
§§ 405(b), (g), (h).
*Briefs of amici curiae urging affirmance were filed for the American
Association of Homes and Services for the Aging by Mark H. Gallant; for
the American Health Care Association et al. by Thomas C. Fox and Har-
vey M. Tettlebaum; for the American Hospital Association by Charles G.
Curtis, Jr., and Edward J. Green; and for the American Medical Associa-
tion et al. by Paul M. Smith, Robert M. Portman, Michael L. Ile, Leonard
A. Nelson, Richard N. Peterson, Ann E. Allen, Stuart M. Gerson, Saul J.
Morse, and Robert J. Kane.

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6 SHALALA v. ILLINOIS COUNCIL ON LONG
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Opinion of the Court
I
A
We begin by describing the regulations that the associa-
tion’s lawsuit attacks. Medicare Act Part A provides pay-
ment to nursing homes which provide care to Medicare
beneficiaries after a stay in a hospital. To receive payment,
a home must enter into a provider agreement with the Sec-
retary of HHS, and it must comply with numerous statutory
and regulatory requirements. State and federal agencies
enforce those requirements through inspections. Inspectors
report violations, called “deficiencies.” And “deficiencies”
lead to the imposition of sanctions or “remedies.” See gen-
erally §§ 1395i–3, 1395cc.
The regulations at issue focus on the imposition of sanc-
tions or remedies. They were promulgated in 1994, 59 Fed.
Reg. 56116, pursuant to a 1987 law that tightened the sub-
stantive standards that Medicare (and Medicaid) imposed
upon nursing homes and that significantly broadened the
Secretary’s authority to impose remedies upon violators.
Omnibus Budget Reconciliation Act of 1987, §§ 4201–4218,
101 Stat. 1330–160 to 1330–221 (codified as amended at 42
U. S. C. § 1395i–3 (1994 ed. and Supp. III)).
The remedial regulations (and a related manual) in effect
tell Medicare-administering agencies how to impose reme-
dies after inspectors find that a nursing home has violated
substantive standards. They divide a nursing home’s defi-
ciencies into three categories of seriousness depending
upon a deficiency’s severity, its prevalence at the home, its
relation with other deficiencies, and the home’s compliance
history. Within each category they list a set of remedies
that the agency may, or must, impose. Where, for example,
deficiencies “immediately jeopardize the health or safety
of . . . residents,” the Secretary must terminate the home’s
provider agreement or appoint new, temporary manage-
ment. Where deficiencies are less serious, the Secretary

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Opinion of the Court
may impose lesser remedies, such as civil penalties, transfer
of residents, denial of some or all payment, state monitoring,
and the like. Where a nursing home, though deficient in
some respects, is in “[s]ubstantial compliance,” i. e., where its
deficiencies do no more than create a “potential for [causing]
minimal harm,” the Secretary will impose no sanction or
remedy at all. See generally 42 U. S. C. § 1395i–3(h); 42
CFR § 488.301 (1998); § 488.400 et seq.; App. 54, 66 (Manual).
The statute and regulations also create various review pro-
cedures. 42 U. S. C. §§ 1395cc(b)(2)(A), (h); 42 CFR § 431.151
et seq. (1998); § 488.408(g); 42 CFR pt. 498 (1998).
The association’s complaint filed in Federal District Court
attacked the regulations as unlawful in four basic ways. In
its view: (1) certain terms, e. g., “substantial compliance”
and “minimal harm,” are unconstitutionally vague; (2) the
regulations and manual, particularly as implemented, vio-
late statutory requirements seeking enforcement consist-
ency, 42 U. S. C. § 1395i–3(g)(2)(D), and exceed the legislative
mandate of the Medicare Act; (3) the regulations create ad-
ministrative procedures inconsistent with the Federal Con-
stitution’s Due Process Clause; and (4) the manual and other
agency publications create legislative rules that were not
promulgated consistent with the Administrative Procedure
Act’s demands for “notice and comment” and a statement of
“basis and purpose,” 5 U. S. C. § 553. See App. 18–19, 27–38,
43–49 (Amended Complaint).
B
We next describe the two competing jurisdictional routes
through which the association arguably might seek to mount
its legal attack. The route it has followed, federal-question
jurisdiction, is set forth in 28 U. S. C. § 1331, which simply
states that “district courts shall have original jurisdiction of
all civil actions arising under the Constitution, laws, or treat-
ies of the United States.” The route that it did not follow,
the special Medicare review route, is set forth in a complex

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8 SHALALA v. ILLINOIS COUNCIL ON LONG
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Opinion of the Court
set of statutory provisions, which must be read together.
See Appendix, infra. The Medicare Act says that a home
“dissatisfied . . . with a determination described in sub-
section (b)(2) . . . shall be entitled to a hearing . . . to
the same extent as is provided in [the Social Security
Act, 42 U. S. C. § ]405(b) . . . and to judicial review of the
Secretary’s final decision after such hearing as is pro-
vided in section 405(g) . . . .” 42 U. S. C. § 1395cc(h)(1)
(emphasis added).
The cross-referenced subsection (b)(2) gives the Secretary
power to terminate an agreement where, for example, the
Secretary
“has determined that the provider fails to comply sub-
stantially with the provisions [of the Medicare Act] and
regulations thereunder . . . .” § 1395cc(b)(2)(A) (empha-
sis added).
The cross-referenced § 405(b) describes the nature of the
administrative hearing to which the Medicare Act entitles a
home that is “dissatisfied” with the Secretary’s “determina-
tion.” The cross-referenced § 405(g) provides that a “dissat-
isfied” home may obtain judicial review in federal district
court of “any final decision of the [Secretary] made after a
hearing . . . .” Separate statutes provide for administrative
and judicial review of civil monetary penalty assessments.
§ 1395i–3(h)(2)(B)(ii); §§ 1320a–7a(c)(2), (e).
A related Social Security Act provision, § 405(h), channels
most, if not all, Medicare claims through this special review
system. It says:
“(h) Finality of [Secretary’s] decision.
“The findings and decision of the [Secretary] after a
hearing shall be binding upon all individuals who were
parties to such hearing. No findings of fact or deci-
sion of the [Secretary] shall be reviewed by any person,
tribunal, or governmental agency except as herein pro-

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Opinion of the Court
vided. No action against the United States, the [Sec-
retary], or any officer or employee thereof shall be
brought under section 1331 or 1346 [federal defendant
jurisdiction] of title 28 to recover on any claim arising
under this subchapter.” (Emphasis added.)
Section 1395ii makes § 405(h) applicable to the Medicare Act
“to the same extent as” it applies to the Social Security Act.
C
The case before us began when the Illinois Council on
Long Term Care, Inc. (Council), an association of about 200
Illinois nursing homes participating in the Medicare (or
Medicaid) program, filed the complaint we have described,
supra, at 7, in Federal District Court. (Medicaid is not at
issue in this Court.) The District Court, as we have said,
dismissed the complaint for lack of federal-question juris-
diction. No. 96 C 2953 (ND Ill., Mar. 31, 1997), App. to Pet.
for Cert. 13a, 15a. In doing so, the court relied upon § 405(h)
as interpreted by this Court in Weinberger v. Salfi, 422 U. S.
749 (1975), and Heckler v. Ringer, 466 U. S. 602 (1984). App.
to Pet. for Cert. 15a–19a.
The Court of Appeals reversed the dismissal. 143 F. 3d
1072 (CA7 1998). In its view, a later case, Bowen v. Michi-
gan Academy of Family Physicians, 476 U. S. 667 (1986),
had significantly modified this Court’s earlier case law.
Other Circuits have understood Michigan Academy differ-
ently. See Michigan Assn. of Homes and Servs. for the
Aging v. Shalala, 127 F. 3d 496, 500–501 (CA6 1997); Ameri-
can Academy of Dermatology v. HHS, 118 F. 3d 1495, 1499–
1501 (CA11 1997); St. Francis Medical Center v. Shalala,
32 F. 3d 805, 812–813 (CA3 1994), cert. denied, 514 U. S.
1016 (1995); Farkas v. Blue Cross & Blue Shield, 24 F. 3d
853, 855–860 (CA6 1994); Abbey v. Sullivan, 978 F. 2d 37,
41–44 (CA2 1992); National Kidney Patients Assn. v. Sulli-
van, 958 F. 2d 1127, 1130–1134 (CADC 1992), cert. denied,

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10 SHALALA v. ILLINOIS COUNCIL ON LONG
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Opinion of the Court
506 U. S. 1049 (1993). We granted certiorari to resolve
those differences.
II
Section 405(h) purports to make exclusive the judicial
review method set forth in § 405(g). Its second sentence
says that “[n]o findings of fact or decision of the [Secretary]
shall be reviewed by any person, tribunal, or governmental
agency except as herein provided.” § 405(h). Its third sen-
tence, directly at issue here, says that “[n]o action against
the United States, the [Secretary], or any officer or employee
thereof shall be brought under section 1331 or 1346 of title
28 to recover on any claim arising under this subchapter.”
(Emphasis added.)
The scope of the italicized language “to recover on any
claim arising under” the Social Security (or, as incorporated
through § 1395ii, the Medicare) Act is, if read alone, uncer-
tain. Those words clearly apply in a typical Social Security
or Medicare benefits case, where an individual seeks a mone-
tary benefit from the agency (say, a disability payment, or
payment for some medical procedure), the agency denies the
benefit, and the individual challenges the lawfulness of that
denial. The statute plainly bars § 1331 review in such a
case, irrespective of whether the individual challenges the
agency’s denial on evidentiary, rule-related, statutory, consti-
tutional, or other legal grounds. But does the statute’s bar
apply when one who might later seek money or some other
benefit from (or contest the imposition of a penalty by) the
agency challenges in advance (in a § 1331 action) the lawful-
ness of a policy, regulation, or statute that might later bar
recovery of that benefit (or authorize the imposition of the
penalty)? Suppose, as here, a group of such individuals,
needing advance knowledge for planning purposes, together
bring a § 1331 action challenging such a rule or regulation
on general legal grounds. Is such an action one “to recover
on any claim arising under” the Social Security or Medicare
Acts? That, in effect, is the question before us.

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Opinion of the Court
III
In answering the question, we temporarily put the case
on which the Court of Appeals relied, Michigan Academy,
supra, to the side. Were we not to take account of that case,
§ 405(h) as interpreted by the Court’s earlier cases of Wein-
berger v. Salfi, supra, and Heckler v. Ringer, supra, would
clearly bar this § 1331 lawsuit.
In Salfi, a mother and a daughter, filing on behalf of
themselves and a class of individuals, brought a § 1331 ac-
tion challenging the constitutionality of a statutory provi-
sion that, if valid, would deny them Social Security benefits.
See 42 U. S. C. §§ 416(c)(5), (e)(2) (imposing a duration-of-
relationship Social Security eligibility requirement for sur-
viving wives and stepchildren of deceased wage earners).
The mother and daughter had appeared before the agency
but had not completed its processes. The class presumably
included some who had, and some who had not, appeared
before the agency; the complaint did not say. This Court
held that § 405(h) barred § 1331 jurisdiction for all members
of the class because “it is the Social Security Act which
provides both the standing and the substantive basis for
the presentation of th[e] constitutional contentions.” Salfi,
supra, at 760–761. The Court added that the bar applies
“irrespective of whether resort to judicial processes is ne-
cessitated by discretionary decisions of the Secretary or by
his nondiscretionary application of allegedly unconstitutional
statutory restrictions.” 422 U. S., at 762. It also pointed
out that the bar did not “preclude constitutional challenges,”
but simply “require[d] that they be brought” under the same
“jurisdictional grants” and “in conformity with the same
standards” applicable “to nonconstitutional claims arising
under the Act.” Ibid.
We concede that the Court also pointed to certain special
features of the case not present here. The plaintiff class had
asked for relief that included a direction to the Secretary to
pay Social Security benefits to those entitled to them but for

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Opinion of the Court
the challenged provision. See id., at 761. And the Court
thought this fact helped make clear that the action arose
“under the Act whose benefits [were] sought.” Ibid. But
in a later case, Ringer, the Court reached a similar result
despite the absence of any request for such relief. See 466
U. S., at 616, 623.
In Ringer, four individuals brought a § 1331 action chal-
lenging the lawfulness (under statutes and the Constitution)
of the agency’s determination not to provide Medicare
Part A reimbursement to those who had undergone a partic-
ular medical operation. The Court held that § 405(h) barred
§ 1331 jurisdiction over the action, even though the challenge
was in part to the agency’s procedures, the relief requested
amounted simply to a declaration of invalidity (not an order
requiring payment), and one plaintiff had as yet no valid
claim for reimbursement because he had not even undergone
the operation and would likely never do so unless a court set
aside as unlawful the challenged agency “no reimbursement”
determination. See id., at 614–616, 621–623. The Court
reiterated that § 405(h) applies where “both the standing and
the substantive basis for the presentation” of a claim is the
Medicare Act, id., at 615 (quoting Salfi, 422 U. S., at 760–761)
(internal quotation marks omitted), adding that a “claim for
future benefits” is a § 405(h) “claim,” 466 U. S., at 621–622,
and that “all aspects” of any such present or future claim
must be “channeled” through the administrative process, id.,
at 614. See also Your Home Visiting Nurse Services, Inc.
v. Shalala, 525 U. S. 449, 456 (1999); Califano v. Sanders, 430
U. S. 99, 103–104, n. 3 (1977).
As so interpreted, the bar of § 405(h) reaches beyond ordi-
nary administrative law principles of “ripeness” and “ex-
haustion of administrative remedies,” see Salfi, supra, at
757—doctrines that in any event normally require channel-
ing a legal challenge through the agency. See Abbott Labo-
ratories v. Gardner, 387 U. S. 136, 148–149 (1967) (ripeness);
McKart v. United States, 395 U. S. 185, 193–196 (1969) (ex-

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Opinion of the Court
haustion). Indeed, in this very case, the Seventh Circuit
held that several of respondent’s claims were not ripe and
remanded for ripeness review of the remainder. 143 F. 3d,
at 1077–1078. Doctrines of “ripeness” and “exhaustion” con-
tain exceptions, however, which exceptions permit early re-
view when, for example, the legal question is “fit” for resolu-
tion and delay means hardship, see Abbott Laboratories,
supra, at 148–149, or when exhaustion would prove “futile,”
see McCarthy v. Madigan, 503 U. S. 140, 147–148 (1992);
McKart, supra, at 197–201. (And sometimes Congress ex-
pressly authorizes preenforcement review, though not here.
See, e. g., 15 U. S. C. § 2618(a)(1)(A) (Toxic Substances Con-
trol Act).)
Insofar as § 405(h) prevents application of the “ripeness”
and “exhaustion” exceptions, i. e., insofar as it demands the
“channeling” of virtually all legal attacks through the
agency, it assures the agency greater opportunity to apply,
interpret, or revise policies, regulations, or statutes with-
out possibly premature interference by different individual
courts applying “ripeness” and “exhaustion” exceptions case
by case. But this assurance comes at a price, namely, oc-
casional individual, delay-related hardship. In the context
of a massive, complex health and safety program such as
Medicare, embodied in hundreds of pages of statutes and
thousands of pages of often interrelated regulations, any of
which may become the subject of a legal challenge in any
of several different courts, paying this price may seem justi-
fied. In any event, such was the judgment of Congress as
understood in Salfi and Ringer. See Ringer, supra, at 627;
Salfi, supra, at 762.
Despite the urging of the Council and supporting amici,
we cannot distinguish Salfi and Ringer from the case before
us. Those cases themselves foreclose distinctions based
upon the “potential future” versus the “actual present” na-
ture of the claim, the “general legal” versus the “fact-
specific” nature of the challenge, the “collateral” versus

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Opinion of the Court
“noncollateral” nature of the issues, or the “declaratory” ver-
sus “injunctive” nature of the relief sought. Nor can we ac-
cept a distinction that limits the scope of § 405(h) to claims
for monetary benefits. Claims for money, claims for other
benefits, claims of program eligibility, and claims that contest
a sanction or remedy may all similarly rest upon individual
fact-related circumstances, may all similarly dispute agency
policy determinations, or may all similarly involve the appli-
cation, interpretation, or constitutionality of interrelated
regulations or statutory provisions. There is no reason to
distinguish among them in terms of the language or in terms
of the purposes of § 405(h). Section 1395ii’s blanket incorpo-
ration of that provision into the Medicare Act as a whole
certainly contains no such distinction. Nor for similar rea-
sons can we here limit those provisions to claims that in-
volve “amounts.”
The Council cites two other cases in support of its efforts
to distinguish Salfi and Ringer: McNary v. Haitian Refu-
gee Center, Inc., 498 U. S. 479 (1991), and Mathews v. El-
dridge, 424 U. S. 319 (1976). In Haitian Refugee Center,
the Court held permissible a § 1331 challenge to “a group
of decisions or a practice or procedure employed in making
decisions” despite an immigration statute that barred § 1331
challenges to any Immigration and Naturalization Service
“ ‘determination respecting an application for adjustment of
status’ ” under the Special Agricultural Workers’ program.
498 U. S., at 491–498. Haitian Refugee Center’s outcome,
however, turned on the different language of that different
statute. Indeed, the Court suggested that statutory lan-
guage similar to the language at issue here—any claim “aris-
ing under” the Medicare or Social Security Acts, § 405(h)—
would have led it to a different legal conclusion. See id., at
494 (using as an example a statute precluding review of “ ‘all
causes . . . arising under any of ’ ” the immigration statutes).
In Eldridge, the Court held permissible a District Court
lawsuit challenging the constitutionality of agency proce-

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dures authorizing termination of Social Security disability
payments without a pretermination hearing. See 424 U. S.,
at 326–332. Eldridge, however, is a case in which the Court
found that the respondent had followed the special review
procedures set forth in § 405(g), thereby complying with,
rather than disregarding, the strictures of § 405(h). See
id., at 326–327 (holding jurisdiction available only under
§ 405(g)). The Court characterized the constitutional issue
the respondent raised as “collateral” to his claim for bene-
fits, but it did so as a basis for requiring the agency to ex-
cuse, where the agency would not do so on its own, see Salfi,
422 U. S., at 766–767, some (but not all) of the procedural
steps set forth in § 405(g). 424 U. S., at 329–332 (identifying
collateral nature of the claim and irreparable injury as rea-
sons to excuse § 405(g)’s exhaustion requirements); see also
Bowen v. City of New York, 476 U. S. 467, 483–485 (1986)
(noting that Eldridge factors are not to be mechanically ap-
plied). The Court nonetheless held that § 405(g) contains
the nonwaivable and nonexcusable requirement that an in-
dividual present a claim to the agency before raising it in
court. See Ringer, supra, at 622; Eldridge, supra, at 329;
Salfi, supra, at 763–764. The Council has not done so here,
and thus cannot establish jurisdiction under § 405(g).
The upshot is that without Michigan Academy the Council
cannot win. Its precedent-based argument must rest pri-
marily upon that case.
IV
The Court of Appeals held that Michigan Academy modi-
fied the Court’s earlier holdings by limiting the scope of
“[§]1395ii and therefore § 405(h)” to “amount determina-
tions.” 143 F. 3d, at 1075–1076. But we do not agree.
Michigan Academy involved a § 1331 suit challenging the
lawfulness of HHS regulations that governed procedures
used to calculate benefits under Medicare Part B—which
Part provides voluntary supplementary medical insurance,
e. g., for doctors’ fees. See 476 U. S., at 674–675; United

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States v. Erika, Inc., 456 U. S. 201, 202–203 (1982). The
Medicare statute, as it then existed, provided for only lim-
ited review of Part B decisions. It allowed the equivalent
of § 405(g) review for “eligibility” determinations. See 42
U. S. C. § 1395ff(b)(1)(B) (1982 ed.). It required private in-
surance carriers (administering the Part B program) to pro-
vide a “fair hearing” for disputes about Part B “amount de-
terminations.” § 1395u(b)(3)(C). But that was all.
Michigan Academy first discussed the statute’s total si-
lence about review of “challenges mounted against the
method by which . . . amounts are to be determined.”
476 U. S., at 675. It held that this silence meant that, al-
though review was not available under § 405(g), the silence
did not itself foreclose other forms of review, say, review in
a court action brought under § 1331. See id., at 674–678.
Cf. Erika, supra, at 208 (holding that the Medicare Part B
statute’s explicit reference to carrier hearings for amount
disputes does foreclose all further agency or court review
of “amount determinations”).
The Court then asked whether § 405(h) barred 28 U. S. C.
§ 1331 review of challenges to methodology. Noting the Sec-
retary’s Salfi/Ringer-based argument that § 405(h) barred
§ 1331 review of all challenges arising under the Medicare
Act and the respondents’ counterargument that § 405(h)
barred challenges to “methods” only where § 405(g) review
was available, see Michigan Academy, 476 U. S., at 679, the
Court wrote:
“Whichever may be the better reading of Salfi and
Ringer, we need not pass on the meaning of § 405(h) in
the abstract to resolve this case. Section 405(h) does
not apply on its own terms to Part B of the Medicare
program, but is instead incorporated mutatis mutandis
by § 1395ii. The legislative history of both the statute
establishing the Medicare program and the 1972 amend-
ments thereto provides specific evidence of Congress’
intent to foreclose review only of ‘amount determina-

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tions’—i. e., those [matters] . . . remitted finally and ex-
clusively to adjudication by private insurance carriers
in a ‘fair hearing.’ By the same token, matters which
Congress did not delegate to private carriers, such as
challenges to the validity of the Secretary’s instruc-
tions and regulations, are cognizable in courts of law.”
Id., at 680 (footnote omitted).
The Court’s words do not limit the scope of § 405(h) itself
to instances where a plaintiff, invoking § 1331, seeks review
of an “amount determination.” Rather, the Court said that
it would “not pass on the meaning of § 405(h) in the abstract.”
Ibid. (emphasis added). Instead it focused upon the Medi-
care Act’s cross-referencing provision, § 1395ii, which makes
§ 405(h) applicable “to the same extent as” it is “applicable” to
the Social Security Act. (Emphasis added.) It interpreted
that phrase as applying § 405(h) “mutatis mutandis,” i. e.,
“[a]ll necessary changes having been made.” Black’s Law
Dictionary 1039 (7th ed. 1999). And it applied § 1395ii with
one important change of detail—a change produced by not
applying § 405(h) where its application to a particular cate-
gory of cases, such as Medicare Part B “methodology” chal-
lenges, would not lead to a channeling of review through the
agency, but would mean no review at all. The Court added
that a “ ‘serious constitutional question’ . . . would arise if we
construed § 1395ii to deny a judicial forum for constitutional
claims arising under Part B.” 476 U. S., at 681, n. 12 (quot-
ing Salfi, 422 U. S., at 762 (citing Johnson v. Robison, 415
U. S. 361, 366–367 (1974))).
More than that: Were the Court of Appeals correct in be-
lieving that Michigan Academy limited the scope of § 405(h)
itself to “amount determinations,” that case would have sig-
nificantly affected not only Medicare Part B cases but cases
arising under the Social Security Act and Medicare Part A
as well. It accordingly would have overturned or dramati-
cally limited this Court’s earlier precedents, such as Salfi
and Ringer, which involved, respectively, those programs.

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It would, moreover, have created a hardly justifiable dis-
tinction between “amount determinations” and many other
similar HHS determinations, see supra, at 14. And we do
not understand why Congress, as Justice Stevens be-
lieves, post, at 30–31 (dissenting opinion), would have wanted
to compel Medicare patients, but not Medicare providers, to
channel their claims through the agency. Cf. Brief for Re-
spondent 7–8, 18–21, 30–31 (apparently conceding the point).
This Court does not normally overturn, or so dramatically
limit, earlier authority sub silentio. And we agree with
those Circuits that have held the Court did not do so in this
instance. See Michigan Assn. of Homes and Servs., 127
F. 3d, at 500–501; American Academy of Dermatology, 118
F. 3d, at 1499–1501; St. Francis Medical Center, 32 F. 3d, at
812; Farkas, 24 F. 3d, at 855–861; Abbey, 978 F. 2d, at 41–44;
National Kidney Patients Assn., 958 F. 2d, at 1130–1134.
Justice Thomas maintains that Michigan Academy
“must have established,” by way of a new interpretation
of § 1395ii, the critical distinction between a dispute about
an agency determination in a particular case and a more
general dispute about, for example, the agency’s authority to
promulgate a set of regulations, i. e., the very distinction that
this Court’s earlier cases deny. Post, at 38 (dissenting opin-
ion). He says that, in this respect, we have mistaken Michi-
gan Academy’s “reasoning” (the presumption against pre-
clusion of judicial review) for its “holding.” Post, at 39–40.
And, he finds the holding consistent with earlier cases such
as Ringer because, he says, in Ringer everyone simply as-
sumed without argument that § 1395ii’s channeling provision
fully incorporated the whole of § 405(h). Post, at 40–42.
For one thing, the language to which Justice Thomas
points simply says that “Congres[s] inten[ded] to foreclose
review only of ‘amount determinations’ ” and not “matters
which Congress did not delegate to private carriers, such as
challenges to the validity of the Secretary’s instructions and
regulations,” Michigan Academy, supra, at 680 (emphasis

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added). That language refers to particular features of the
Medicare Part B program—“private carriers” and “amount
determinations”—which are not here before us. And its ref-
erence to “foreclosure” of review quite obviously cannot be
taken to refer to § 1395ii because, as we have explained,
§ 1395ii is a channeling requirement, not a foreclosure pro-
vision—of “amount determinations” or anything else. In
short, it is difficult to reconcile Justice Thomas’ character-
ization of Michigan Academy as a holding that § 1395ii is
“trigger[ed]” only by “challenges to . . . particular determi-
nations,” post, at 40, with the Michigan Academy language
to which he points.
Regardless, it is more plausible to read Michigan Acad-
emy as holding that § 1395ii does not apply § 405(h) where
application of § 405(h) would not simply channel review
through the agency, but would mean no review at all. And
contrary to Justice Scalia’s suggestion, post, at 31–32 (dis-
senting opinion), that single rule applies to Medicare Part A
as much as to Medicare Part B. This latter holding, as we
have said, has the virtues of consistency with Michigan
Academy’s actual language; consistency with the holdings
of earlier cases such as Ringer; and consistency with the dis-
tinction that this Court has often drawn between a total
preclusion of review and postponement of review. See, e. g.,
Salfi, supra, at 762 (distinguishing § 405(h)’s channeling re-
quirement from the complete preclusion of judicial review
at issue in Robison, supra, at 373); Thunder Basin Coal Co.
v. Reich, 510 U. S. 200, 207, n. 8 (1994) (strong presumption
against preclusion of review is not implicated by provision
postponing review); Haitian Refugee Center, 498 U. S., at
496–499 (distinguishing between Ringer and Michigan Acad-
emy and finding the case governed by the latter because the
statute precluded all meaningful judicial review). Justice
Thomas refers to an “antichanneling” presumption (a “pre-
sumption in favor of preenforcement review,” post, at 46–47).
But any such presumption must be far weaker than a pre-

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Opinion of the Court
sumption against preclusion of all review in light of the tra-
ditional ripeness doctrine, which often requires initial pres-
entation of a claim to an agency. As we have said, supra,
at 13, Congress may well have concluded that a universal
obligation to present a legal claim first to HHS, though post-
poning review in some cases, would produce speedier, as well
as better, review overall. And this Court crossed the rele-
vant bridge long ago when it held that Congress, in both
the Social Security Act and the Medicare Act, insisted upon
an initial presentation of the matter to the agency. Ringer,
466 U. S., at 627; Salfi, 422 U. S., at 762. Michigan Acad-
emy does not require that we reconsider that longstanding
interpretation.
V
The Council argues that in any event it falls within the
exception that Michigan Academy creates, for here as there,
it can obtain no review at all unless it can obtain judicial
review in a § 1331 action. In other words, the Council con-
tends that application of § 1395ii’s channeling provision to
the portion of the Medicare statute and the Medicare regu-
lations at issue in this case will amount to the “practical
equivalent of a total denial of judicial review.” Haitian Ref-
ugee Center, supra, at 497. The Council, however, has not
convinced us that is so.
The Council says that the special review channel that the
Medicare statutes create applies only where the Secretary
terminates a home’s provider agreement; it is not avail-
able in the more usual case involving imposition of a lesser
remedy, say, the transfer of patients, the withholding of pay-
ments, or the imposition of a civil monetary penalty.
We have set forth the relevant provisions, supra, at 8–9;
Appendix, infra. The specific judicial review provision,
§ 405(g), authorizes judicial review of “any final decision of
the [Secretary] made after a [§ 405(b)] hearing.” A further
relevant provision, § 1395cc(h)(1), authorizes a § 405(b) hear-
ing whenever a home is “dissatisfied . . . with a determi-

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nation described in subsection (b)(2).” (Emphasis added.)
And subsection (b)(2) authorizes the Secretary to terminate
an agreement, whenever she “has determined that the pro-
vider fails to comply substantially with” statutes, agree-
ments, or “regulations.” § 1395cc(b)(2)(A) (emphasis added).
The Secretary states in her brief that the relevant “de-
termination” that entitles a “dissatisfied” home to review
is any determination that a provider has failed to comply
substantially with the statute, agreements, or regulations,
whether termination or “some other remedy is imposed.”
Reply Brief for Petitioners 14 (emphasis added). The Secre-
tary’s regulations make clear that she so interprets the stat-
ute. See 42 CFR §§ 498.3(b)(12), 498.1(a)–(b) (1998). The
statute’s language, though not free of ambiguity, bears that
interpretation. And we are aware of no convincing counter-
vailing argument. We conclude that the Secretary’s inter-
pretation is legally permissible. See Chevron U. S. A. Inc.
v. Natural Resources Defense Council, Inc., 467 U. S. 837,
843 (1984); Your Home Visiting Nurse Services, 525 U. S.,
at 453; see also 42 U. S. C. § 1395i–3(h)(2)(B)(ii) (providing a
different channel for administrative and judicial review of
decisions imposing civil monetary penalties.)
The Council next argues that the regulations, as imple-
mented by the enforcement agencies, deny review in practice
by (1) insisting that a nursing home with deficiencies present
a corrective plan, (2) imposing no further sanction or remedy
if it does so, but (3) threatening termination if it does not.
See 42 CFR §§ 488.402(d), 488.456(b)(ii) (1998). Because a
home cannot risk termination, the Council adds, it must al-
ways submit a plan, thereby avoiding imposition of a rem-
edy, but simultaneously losing its opportunity to contest the
lawfulness of any remedy-related rules or regulations. See
§ 498.3(b)(12). And, the Council’s amici assert, compliance
actually harms the home by subjecting it to increased sanc-
tions later on by virtue of the unreviewed deficiency findings,

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and because the agency makes deficiency findings public on
the Internet, § 488.325.
The short, conclusive answer to these contentions is that
the Secretary denies any such practice. She states in her
brief that a nursing home with deficiencies can test the law-
fulness of her regulations simply by refusing to submit a plan
and incurring a minor penalty. Minor penalties, she says,
are the norm, for “terminations from the program are rare
and generally reserved for the most egregious recidivist in-
stitutions.” Reply Brief for Petitioners 18; ibid. (HHS re-
ports that only 25 out of more than 13,000 nursing homes
were terminated in 1995–1996). She adds that the “remedy
imposed on a facility that fails to submit a plan of correction
or to correct a deficiency—and appeals the deficiency—is no
different than the remedy the Secretary ordinarily would im-
pose in the first instance.” Ibid. Nor do the regulations
“cause providers to suffer more severe penalties in later en-
forcement actions based on findings that are unreviewable.”
Ibid. The Secretary concedes that a home’s deficiencies are
posted on the Internet, but she notes that a home can post
a reply. See id., at 20, n. 20.
The Council gives us no convincing reason to doubt the
Secretary’s description of the agency’s general practice. We
therefore need not decide whether a general agency prac-
tice that forced nursing homes to abandon legitimate chal-
lenges to agency regulations could amount to the “practi-
cal equivalent of a total denial of judicial review,” Haitian
Refugee Center, 498 U. S., at 497. Contrary to what Jus-
tice Thomas says, post, at 42–43, 51–52, we do not hold that
an individual party could circumvent § 1395ii’s channeling re-
quirement simply because that party shows that postpone-
ment would mean added inconvenience or cost in an isolated,
particular case. Rather, the question is whether, as applied
generally to those covered by a particular statutory pro-
vision, hardship likely found in many cases turns what ap-

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pears to be simply a channeling requirement into complete
preclusion of judicial review. See Haitian Refugee Center,
supra, at 496–497. Of course, individual hardship may be
mitigated in a different way, namely, through excusing a
number of the steps in the agency process, though not the
step of presentment of the matter to the agency. See supra,
at 14–15; infra, at 24. But again, the Council has not shown
anything other than potentially isolated instances of the in-
conveniences sometimes associated with the postponement
of judicial review.
The Council complains that a host of procedural regula-
tions unlawfully limit the extent to which the agency itself
will provide the administrative review channel leading to
judicial review, for example, regulations insulating from
review decisions about a home’s level of noncompliance or
a determination to impose one, rather than another, pen-
alty. See 42 CFR §§ 431.153(b), 488.408(g)(2), 498.3(d)(10)(ii)
(1998). The Council’s members remain free, however, after
following the special review route that the statutes pre-
scribe, to contest in court the lawfulness of any regulation
or statute upon which an agency determination depends.
The fact that the agency might not provide a hearing for that
particular contention, or may lack the power to provide one,
see Sanders, 430 U. S., at 109 (“Constitutional questions ob-
viously are unsuited to resolution in administrative hearing
procedures . . .”); Salfi, 422 U. S., at 764; Brief for Petitioners
45, is beside the point because it is the “action” arising under
the Medicare Act that must be channeled through the agency.
See Salfi, supra, at 762. After the action has been so chan-
neled, the court will consider the contention when it later
reviews the action. And a court reviewing an agency deter-
mination under § 405(g) has adequate authority to resolve
any statutory or constitutional contention that the agency
does not, or cannot, decide, see Thunder Basin Coal, 510

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U. S., at 215, and n. 20; Haitian Refugee Center, supra, at
494; Ringer, 466 U. S., at 617; Salfi, supra, at 762, including,
where necessary, the authority to develop an evidentiary
record.
Proceeding through the agency in this way provides the
agency the opportunity to reconsider its policies, interpreta-
tions, and regulations in light of those challenges. Nor need
it waste time, for the agency can waive many of the proce-
dural steps set forth in § 405(g), see Salfi, supra, at 767, and
a court can deem them waived in certain circumstances, see
Eldridge, 424 U. S., at 330–331, even though the agency tech-
nically holds no “hearing” on the claim. See Salfi, supra,
at 763–767 (holding that Secretary’s decision not to chal-
lenge the sufficiency of the appellees’ exhaustion was in ef-
fect a determination that the agency had rendered a “final
decision” within the meaning of § 405(g)); Eldridge, supra,
at 331–332, and n. 11 (invoking practical conception of fi-
nality to conclude that collateral nature of claim and poten-
tial irreparable injury from delayed review satisfy the “final
decision” requirement of § 405(g)). At a minimum, however,
the matter must be presented to the agency prior to review
in a federal court. This the Council has not done.
Finally, the Council argues that, because it is an associa-
tion, not an individual, it cannot take advantage of the special
review channel, for the statute authorizes review through
that channel only at the request of a “dissatisfied” “insti-
tution or agency.” 42 U. S. C. § 1395cc(h)(1). The Council
speaks only on behalf of its member institutions, and thus has
standing only because of the injury those members allegedly
suffer. See Arizonans for Official English v. Arizona, 520
U. S. 43, 65–66 (1997); Hunt v. Washington State Apple Ad-
vertising Comm’n, 432 U. S. 333, 343 (1977). It is essentially
their rights to review that are at stake. And the statutes
that create the special review channel adequately protect
those rights.

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Appendix to opinion of the Court
VI
For these reasons, this case cannot fit within Michigan
Academy’s exception. The bar of § 405(h) applies. The
judgment of the Court of Appeals is
Reversed.
APPENDIX TO OPINION OF THE COURT
42 U. S. C. § 1395cc(h)(1) provides:
“(h) Dissatisfaction with determination of Secretary;
appeal by institutions or agencies; single notice and
hearing
“(1) Except as provided in paragraph (2), an institu-
tion or agency dissatisfied with a determination by the
Secretary that it is not a provider of services or with a
determination described in subsection (b)(2) of this sec-
tion shall be entitled to a hearing thereon by the Secre-
tary (after reasonable notice) to the same extent as is
provided in section 405(b) of this title, and to judicial
review of the Secretary’s final decision after such hear-
ing as is provided in section 405(g) of this title, except
that, in so applying such sections and in applying section
405(l) of this title thereto, any reference therein to the
Commissioner of Social Security or the Social Security
Administration shall be considered a reference to the
Secretary or the Department of Health and Human
Services, respectively.”
42 U. S. C. § 1395cc(b) provides, in relevant part:
“(b) Termination or nonrenewal of agreements
. . . . .
“(2) The Secretary may refuse to enter into an agree-
ment under this section or, upon such reasonable notice
to the provider and the public as may be specified in
regulations, may refuse to renew or may terminate such
an agreement after the Secretary—

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Appendix to opinion of the Court
“(A) has determined that the provider fails to comply
substantially with the provisions of the agreement, with
the provisions of this subchapter and regulations there-
under, or with a corrective action required under section
1395ww(f)(2)(B) of this title.”
42 U. S. C. § 405(b) provides, in relevant part:
“(b) Administrative determination of entitlement to
benefits; findings of fact; hearings; investigations; evi-
dentiary hearings in reconsiderations of disability bene-
fit terminations; subsequent applications
“(1) The Commissioner of Social Security is directed
to make findings of fact, and decisions as to the rights
of any individual applying for a payment under this
subchapter. Any such decision by the Commissioner of
Social Security which involves a determination of dis-
ability and which is in whole or in part unfavorable to
such individual shall contain a statement of the case,
in understandable language, setting forth a discussion
of the evidence, and stating the Commissioner’s de-
termination and the reason or reasons upon which it
is based. Upon request by any such individual or
upon request by a wife, divorced wife, widow, surviv-
ing divorced wife, surviving divorced mother, surviving
divorced father, husband, divorced husband, widower,
surviving divorced husband, child, or parent who makes
a showing in writing that his or her rights may be preju-
diced by any decision the Commissioner of Social Se-
curity has rendered, the Commissioner shall give such
applicant and such other individual reasonable notice
and opportunity for a hearing with respect to such
decision, and, if a hearing is held, shall, on the basis
of evidence adduced at the hearing, affirm, modify, or
reverse the Commissioner’s findings of fact and such
decision. Any such request with respect to such a de-
cision must be filed within sixty days after notice of

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Appendix to opinion of the Court
such decision is received by the individual making such
request. The Commissioner of Social Security is fur-
ther authorized, on the Commissioner’s own motion, to
hold such hearings and to conduct such investigations
and other proceedings as the Commissioner may deem
necessary or proper for the administration of this sub-
chapter. In the course of any hearing, investigation,
or other proceeding, the Commissioner may administer
oaths and affirmations, examine witnesses, and receive
evidence. Evidence may be received at any hearing be-
fore the Commissioner of Social Security even though
inadmissible under rules of evidence applicable to court
procedure.
. . . . .
“(3)(A) A failure to timely request review of an initial
adverse determination with respect to an application for
any benefit under this subchapter or an adverse deter-
mination on reconsideration of such an initial determina-
tion shall not serve as a basis for denial of a subsequent
application for any benefit under this subchapter if the
applicant demonstrates that the applicant, or any other
individual referred to in paragraph (1), failed to so re-
quest such a review acting in good faith reliance upon
incorrect, incomplete, or misleading information, relat-
ing to the consequences of reapplying for benefits in lieu
of seeking review of an adverse determination, provided
by any officer or employee of the Social Security Admin-
istration or any State agency acting under section 421
of this title.
“(B) In any notice of an adverse determination with
respect to which a review may be requested under para-
graph (1), the Commissioner of Social Security shall de-
scribe in clear and specific language the effect on pos-
sible entitlement to benefits under this subchapter of
choosing to reapply in lieu of requesting review of the
determination.”

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28 SHALALA v. ILLINOIS COUNCIL ON LONG
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Appendix to opinion of the Court
42 U. S. C. § 405(g) provides:
“(g) Judicial review
“Any individual, after any final decision of the Com-
missioner of Social Security made after a hearing to
which he was a party, irrespective of the amount in
controversy, may obtain a review of such decision by a
civil action commenced within sixty days after the mail-
ing to him of notice of such decision or within such fur-
ther time as the Commissioner of Social Security may
allow. Such action shall be brought in the district court
of the United States for the judicial district in which
the plaintiff resides, or has his principal place of busi-
ness, or, if he does not reside or have his principal
place of business within any such judicial district, in
the United States District Court for the District of
Columbia. As part of the Commissioner’s answer the
Commissioner of Social Security shall file a certified
copy of the transcript of the record including the evi-
dence upon which the findings and decision complained
of are based. The court shall have power to enter, upon
the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without re-
manding the cause for a rehearing. The findings of the
Commissioner of Social Security as to any fact, if sup-
ported by substantial evidence, shall be conclusive, and
where a claim has been denied by the Commissioner of
Social Security or a decision is rendered under subsec-
tion (b) of this section which is adverse to an individual
who was a party to the hearing before the Commissioner
of Social Security, because of failure of the claimant or
such individual to submit proof in conformity with any
regulation prescribed under subsection (a) of this sec-
tion, the court shall review only the question of conform-
ity with such regulations and the validity of such regula-
tions. The court may, on motion of the Commissioner

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29 Cite as: 529 U. S. 1 (2000)
Appendix to opinion of the Court
of Social Security made for good cause shown before the
Commissioner files the Commissioner’s answer, remand
the case to the Commissioner of Social Security for fur-
ther action by the Commissioner of Social Security, and
it may at any time order additional evidence to be taken
before the Commissioner of Social Security, but only
upon a showing that there is new evidence which is ma-
terial and that there is good cause for the failure to in-
corporate such evidence into the record in a prior pro-
ceeding; and the Commissioner of Social Security shall,
after the case is remanded, and after hearing such addi-
tional evidence if so ordered, modify or affirm the Com-
missioner’s findings of fact or the Commissioner’s de-
cision, or both, and shall file with the court any such
additional and modified findings of fact and decision, and
a transcript of the additional record and testimony upon
which the Commissioner’s action in modifying or affirm-
ing was based. Such additional or modified findings of
fact and decision shall be reviewable only to the extent
provided for review of the original findings of fact and
decision. The judgment of the court shall be final ex-
cept that it shall be subject to review in the same man-
ner as a judgment in other civil actions. Any action
instituted in accordance with this subsection shall sur-
vive notwithstanding any change in the person occupy-
ing the office of Commissioner of Social Security or any
vacancy in such office.”
42 U. S. C. § 405(h) provides:
“(h) Finality of Commissioner’s decision
“The findings and decision of the Commissioner of
Social Security after a hearing shall be binding upon
all individuals who were parties to such hearing. No
findings of fact or decision of the Commissioner of
Social Security shall be reviewed by any person, tribu-
nal, or governmental agency except as herein provided.

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30 SHALALA v. ILLINOIS COUNCIL ON LONG
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Stevens, J., dissenting
No action against the United States, the Commissioner
of Social Security, or any officer or employee thereof
shall be brought under section 1331 or 1346 of title 28 to
recover on any claim arising under this subchapter.”
42 U. S. C. § 1395ii provides:
“The provisions of sections 406 and 416( j) of this title,
and of subsections (a), (d), (e), (h), (i), ( j), (k), and (l)
of section 405 of this title, shall also apply with respect
to this subchapter to the same extent as they are ap-
plicable with respect to subchapter II of this chapter,
except that, in applying such provisions with respect
to this subchapter, any reference therein to the Commis-
sioner of Social Security or the Social Security Admin-
istration shall be considered a reference to the Secre-
tary or the Department of Health and Human Services,
respectively.”
28 U. S. C. § 1331 provides:
“Federal question. The district courts shall have orig-
inal jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”
Justice Stevens, dissenting.
While I join Justice Thomas’ lucid dissent without quali-
fication, I think it worthwhile to identify a significant dis-
tinction between cases like Weinberger v. Salfi, 422 U. S.
749 (1975), and Heckler v. Ringer, 466 U. S. 602 (1984), on
the one hand, and cases like Bowen v. Michigan Academy
of Family Physicians, 476 U. S. 667 (1986), and this case,
on the other hand. In the former group, the issue con-
cerned the plaintiffs’ entitlement to benefits; in the latter
two, the issue concerns providers’ eligibility for reimburse-
ment. The distinction between those two types of issues
mirrors a critical distinction between the Social Security
Act, 42 U. S. C. § 405, and the Medicare Act, 42 U. S. C.
§ 1395ii.

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31 Cite as: 529 U. S. 1 (2000)
Scalia, J., dissenting
Disputed claims for Social Security benefits always pre-
sent a simple two-party dispute in which the claimant is
seeking a monetary benefit from the Government. A pro-
ceeding under § 405 is correctly described as an action “to
recover on any claim arising under this subchapter. ”
§ 405(h). Disputed claims under the Medicare Act, how-
ever, typically involve three parties—the patient, the pro-
vider, and the Secretary. When the issue involves a dispute
over the patient’s entitlement to benefits, it is fairly charac-
terized as an action “to recover” on a claim that is parallel
to a claim for Social Security benefits. The language in
§ 1395ii that makes § 405(h) applicable to the Medicare Act
“to the same extent as” it applies to the Social Security Act
thus encompasses claims by patients, but does not neces-
sarily encompass providers’ challenges to the Secretary’s
regulations.
In Ringer, the Court, in effect (and, in my view, errone-
ously), treated the patients’ claim as a premature action
“to recover” benefits that was subject to the strictures in
§ 405(h). See 466 U. S., at 620. But in this case, as in Mich-
igan Academy, the plaintiffs are providers, not patients.
Their challenges to the Secretary’s regulations simply do not
fall within the “to recover” language of § 405(h) that was
obviously drafted to describe pecuniary claims. The incor-
poration of that language into the Medicare Act via § 1395ii
provides no textual support for the Court’s decision today.
Moreover, contrary to the Court’s “Pandora’s box” rhetoric,
ante, at 17–18, adherence to the plain meaning of “to re-
cover” would not make it necessary for the Court to revisit
any of its earlier cases. For this reason, as well as the rea-
sons set forth by Justice Thomas, I find nothing in the
relevant statutory text that should be construed to bar
this action.
Justice Scalia, dissenting.
I join the opinion of Justice Thomas except for Part III,
and think it necessary to add a few words in explanation

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32 SHALALA v. ILLINOIS COUNCIL ON LONG
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Thomas, J., dissenting
of that vote: I am doubtful whether Bowen v. Michigan
Academy of Family Physicians, 476 U. S. 667 (1986), was
correctly decided, but that case being on the books, and
involving as it does a question of statutory interpretation,
I believe it requires affirmance here. There is in my view
neither any basis for holding that 42 U. S. C. § 1395ii has a
different meaning with regard to Part A than with regard
to Part B, nor (since repeals by implication are disfavored)
any basis for holding that the subsequent addition of a
judicial-review provision distantly related to § 1395ii altered
the meaning we had authoritatively pronounced. See post,
at 38, n. 7 (Thomas, J., dissenting).
I do not join Part III of Justice Thomas’s opinion be-
cause its reliance upon what it calls the presumption of pre-
enforcement review suggests that Michigan Academy was
(a fortiori) correctly decided. I might have thought, as an
original matter, that the categorical language of §§ 1395ii and
405(h) overcame even what Justice Thomas acknowledges
is the stronger presumption of some judicial review. See
post, at 45. With regard to the timing of review, I would
not even use the word “presumption” (a term which Abbott
Laboratories v. Gardner, 387 U. S. 136 (1967), applies only to
the preference for judicial review at some point, see id., at
140), since that suggests that some unusually clear statement
is required by way of negation. In my view, preenforcement
review is better described as the background rule, which can
be displaced by any reasonable implication (“persuasive rea-
son to believe,” as Abbott Laboratories put it, ibid.) from
the statute.
Justice Thomas, with whom Justice Stevens and
Justice Kennedy join, and with whom Justice Scalia
joins except as to Part III, dissenting.
Unlike the majority, I take no position on how 42 U. S. C.
§ 405(h) applies to respondent’s suit. That section is beside
the point in this case because it does not apply of its own

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33 Cite as: 529 U. S. 1 (2000)
Thomas, J., dissenting
force to the Medicare Act, but only by virtue of 42 U. S. C.
§ 1395ii, the Medicare Act’s incorporating reference to
§ 405(h).1 I read Bowen v. Michigan Academy of Family
Physicians, 476 U. S. 667 (1986), to hold that this incorpo-
rating reference is triggered when a particular fact-bound
determination is in dispute, but not in the case, as here, of a
“challeng[e] to the validity of the Secretary’s instructions
and regulations.” Id., at 680. Though this (or any) inter-
pretation of § 1395ii is not entirely free from doubt in light
of the arguable tension between Michigan Academy and our
earlier decision in Heckler v. Ringer, 466 U. S. 602 (1984),
I would resolve such doubt by following our longstanding
presumption in favor of preenforcement judicial review. Ac-
cordingly, I would hold that § 405(h) does not apply to re-
spondent’s challenge, and therefore does not preclude re-
spondent from bringing suit under general federal-question
jurisdiction, 28 U. S. C. § 1331.
I
A
Michigan Academy was the first time we discussed the
meaning of § 1395ii. In earlier Medicare Act cases where
the plaintiffs had sought to proceed under general federal-
question jurisdiction, we either had no need to address
§ 1395ii, or assumed in passing (and without discussion) that
§ 1395ii always incorporates § 405(h).
Our decision in United States v. Erika, Inc., 456 U. S. 201
(1982), involved the former situation. We dealt there with
a Part B dispute over the appropriate amount of reimburse-
ment for certain medical supplies.2 The statute provided
1 Section 1395ii provides in relevant part that the provisions of § 405(h)
“shall also apply with respect to [the Medicare Act] to the same extent as
they are applicable with respect to [the Social Security Act].”
2 Part B of the Medicare Act provides voluntary supplemental insurance
coverage to eligible individuals for certain physician charges and medical
services that are not covered by Part A. Individuals’ Part B benefits

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34 SHALALA v. ILLINOIS COUNCIL ON LONG
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Thomas, J., dissenting
for the determination of benefit amounts to be made by a
private insurance carrier designated by the Secretary, and
authorized de novo review of the initial determination by
another officer designated by the carrier. Id., at 203 (citing
42 U. S. C. § 1395u (1982 ed.)). But the statutory scheme
did not mention the possibility of judicial review of Part B
benefit amount determinations, much less review by the
Secretary. By contrast, the statute did expressly provide
for administrative review by the Secretary and judicial re-
view in two instances: disputes concerning the claimant’s
eligibility for benefits under Part A or Part B, and disputes
over benefit amount determinations under Part A. 456
U. S., at 207 (citing 42 U. S. C. § 1395ff (1982 ed.)). We found
this contrast illuminating: “In the context of the statute’s
precisely drawn provisions, this omission provides per-
suasive evidence that Congress deliberately intended to
foreclose further review of [Part B benefit amount deter-
minations].” 456 U. S., at 208.3 The inference was strong
enough that we had no need to discuss the Government’s
alternative contention that § 405(h) expressly precluded a
claim under general jurisdictional provisions. See id., at
206, n. 6. We therefore had no occasion to decide whether
§ 1395ii even incorporates § 405(h) into the Medicare Act.
(So too in Weinberger v. Salfi, 422 U. S. 749 (1975), we did
not need to interpret § 1395ii, but for a different and more
obvious reason: Salfi was a Social Security case, not a Medi-
care case, so § 405(h) was directly applicable.)
claims are routinely assigned to providers of services, who then seek
reimbursement.
3 Our decision in Erika illustrates the longstanding principle that a
statute whose provisions are finely wrought may support the preclu-
sion of judicial review, even though that preclusion is only by negative
implication. See, e. g., United States v. Fausto, 484 U. S. 439, 452 (1988);
Block v. Community Nutrition Institute, 467 U. S. 340, 351 (1984);
Switchmen v. National Mediation Bd., 320 U. S. 297, 305–306 (1943).

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35 Cite as: 529 U. S. 1 (2000)
Thomas, J., dissenting
Our opinion in Ringer was equally silent on the meaning
of § 1395ii, this time assuming in passing that it operates
as a garden variety incorporating reference of § 405(h),4 an
assumption shared by the parties to the case, see Brief
for Petitioners 18, 22, and Brief for Respondents 26–29, in
Heckler v. Ringer, O. T. 1983, No. 82–1772. Ringer involved
a dispute over reimbursement for a surgical procedure under
Part A of the Act, see 466 U. S., at 608–609, n. 4, so, unlike
in Erika (which involved Part B), it was clear that the in-
dividual plaintiffs could seek judicial review under § 1395ff
(via § 405(g)) after they had presented a claim for benefits to
the Secretary and suffered an unfavorable final decision.
But the plaintiffs chose not to follow this route to review.
Instead, they attempted to challenge the Secretary’s policy
prohibiting reimbursement for the surgery as violating con-
stitutional due process and several statutory provisions, in-
voking general federal-question jurisdiction.5 As noted, we
assumed that § 1395ii incorporates § 405(h) in the situation
of a preenforcement challenge to the Secretary’s Medicare
Act regulations and policies, and held that § 405(h)’s third
sentence—“No action against the United States, the [Secre-
tary], or any officer or employee thereof shall be brought
under section 1331 or 1346 of title 28 to recover on any claim
arising under this subchapter”—expressly precluded Ring-
er’s suit. Ringer, 466 U. S., at 615–616.
4 See Heckler v. Ringer, 466 U. S. 602, 614–615 (1984) (“The third sen-
tence of 42 U. S. C. § 405(h), made applicable to the Medicare Act by 42
U. S. C. § 1395ii, provides that § 405(g), to the exclusion of 28 U. S. C.
§ 1331, is the sole avenue for judicial review for all ‘claim[s] arising under’
the Medicare Act” (alteration in original)).
5 The plaintiffs also asserted, to no avail, that the District Court had
jurisdiction under 28 U. S. C. § 1361 (mandamus) and 42 U. S. C. § 1395ff
(1982 ed. and Supp. II) ( judicial review of Part A benefit amount determi-
nations). See Ringer, supra, at 617–618.

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36 SHALALA v. ILLINOIS COUNCIL ON LONG
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Thomas, J., dissenting
B
We squarely addressed § 1395ii for the first time in our
1986 decision in Bowen v. Michigan Academy of Family
Physicians, 476 U. S. 667. The Secretary had adopted a
regulation that authorized the payment of Part B benefits in
different amounts for similar physicians’ services. An asso-
ciation of family physicians and several individual doctors
filed suit to challenge this regulation. Id., at 668. These
plaintiffs asserted no concrete claim to Part B benefits, for
judicial review of such a claim was clearly foreclosed by the
statute as interpreted in Erika; they instead invoked
federal-question jurisdiction. Our unanimous opinion 6 in
their favor began by rejecting the Secretary’s contention
that the provisions construed in Erika impliedly precluded
review not only of benefit amount determinations under
Part B, but also of challenges against the Secretary’s meth-
odologies for determining such amounts. 476 U. S., at 673.
The “precisely drawn” provisions on which we had focused
in Erika did not support the Secretary’s proposed inference,
as they “simply d[id] not speak to challenges mounted
against the method by which such amounts are to be deter-
mined.” 476 U. S., at 675.
We then turned to the Secretary’s argument that § 405(h),
incorporated by § 1395ii into the Medicare Act, expressly
precludes a claimant from resorting to general federal-
question jurisdiction under 28 U. S. C. § 1331. The Secre-
tary contended that under Salfi, supra, at 756–762, and
Ringer, supra, at 614–616, “the third sentence of § 405(h) by
its terms prevents any resort to the grant of general
federal-question jurisdiction contained in 28 U. S. C. § 1331.”
476 U. S., at 679. The plaintiffs responded that § 405(h)’s
third sentence precludes use of § 1331 only when Congress
has provided specific procedures for judicial review of final
6 Then-Justice Rehnquist did not participate.

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37 Cite as: 529 U. S. 1 (2000)
Thomas, J., dissenting
agency action. Ibid. We declined, however, to enter that
debate:
“Whichever may be the better reading of Salfi and
Ringer, we need not pass on the meaning of § 405(h) in
the abstract to resolve this case. Section 405(h) does
not apply on its own terms to Part B of the Medicare
program, but is instead incorporated mutatis mutandis
by § 1395ii. The legislative history of both the statute
establishing the Medicare program and the 1972 amend-
ments thereto provides specific evidence of Congress’ in-
tent to foreclose review only of ‘amount determina-
tions’—i. e., those ‘quite minor matters,’ 118 Cong. Rec.
33992 (1972) (remarks of Sen. Bennett), remitted finally
and exclusively to adjudication by private insurance
carriers in a ‘fair hearing.’ By the same token, matters
which Congress did not delegate to private carriers,
such as challenges to the validity of the Secretary’s
instructions and regulations, are cognizable in courts
of law. In the face of this persuasive evidence of leg-
islative intent, we will not indulge the Government’s
assumption that Congress contemplated review by carri-
ers of ‘trivial’ monetary claims, ibid., but intended no
review at all of substantial statutory and constitutional
challenges to the Secretary’s administration of Part B of
the Medicare program.” Id., at 680 (footnotes omitted).
We accordingly held that the physicians’ challenge to the
Secretary’s regulation could proceed under general federal-
question jurisdiction.
C
In light of the quoted passage, it is beyond dispute that
our holding in Michigan Academy rested squarely on the
meaning of § 1395ii. Accord, ante, at 17. Under Michi-
gan Academy, a case involving an “amount determinatio[n]”
would trigger § 1395ii’s incorporation of § 405(h), and thus
bar federal-question jurisdiction; a “challeng[e] to the valid-

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38 SHALALA v. ILLINOIS COUNCIL ON LONG
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Thomas, J., dissenting
ity of the Secretary’s instructions and regulations” would
not. 476 U. S., at 680.
This dichotomy does not translate exactly to the instant
case, the majority tells us, because the Secretary’s determi-
nation to terminate a nursing home’s provider agreement,
see 42 U. S. C. § 1395cc(b) (1994 ed. and Supp. III), in no
sense resembles the determination of an “amount” of an
individual’s benefits under Part A or B, see § 1395ff. There-
fore, the majority concludes, Michigan Academy’s interpre-
tation of § 1395ii simply does not bear on respondent’s chal-
lenge to the Secretary’s regulations here. See ante, at 20.
But § 1395ii applies to more than just § 1395ff, the pro-
vision concerning benefit amounts; it applies, rather, to
the entire Medicare Act, including § 1395cc, the provision
concerning provider agreements that is directly at issue
here. And we have “stron[g] cause to construe a single
formulation . . . the same way each time it is called into
play.” Ratzlaf v. United States, 510 U. S. 135, 143 (1994).
Accordingly, the interpretation of § 1395ii that we announced
in Michigan Academy must have a more general import
than a distinction between Part B benefits determinations,
on the one hand, and Part B methods guiding such determi-
nations, on the other. Michigan Academy must have es-
tablished a distinction between, on the one hand, a dispute
over any particularized determination and, on the other
hand, a “challeng[e] to the validity of the Secretary’s instruc-
tions and regulations,” 476 U. S., at 680.7 The former trig-
gers § 1395ii’s incorporation of § 405(h); the latter does not.
This case obviously falls into the latter category. Re-
spondent in no way disputes any particularized determina-
7 For this reason, it is beside the point that Congress amended § 1395ff
after Michigan Academy to make express provision for administrative
and judicial review of Part B benefits claims. See Pub. L. 99–509,
§ 9341(a)(1)(B), 100 Stat. 2037. Congress has not substantively amended
§ 1395ii since Michigan Academy, and so Michigan Academy’s gloss on
§ 1395ii deserves as much stare decisis respect today as it ever has.

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39 Cite as: 529 U. S. 1 (2000)
Thomas, J., dissenting
tions, but instead mounts a general challenge to the Secre-
tary’s regulations (and manual) prescribing inspection and
enforcement procedures for the teams that survey participat-
ing nursing homes, 59 Fed. Reg. 56116 (1994), claiming that
these were promulgated without notice and comment, are
unconstitutionally vague, contravene the Medicare Act’s re-
quirement of enforcement consistency, and violate due proc-
ess by affording insufficient administrative review. Like the
Michigan Academy plaintiffs, who challenged the Secre-
tary’s regulation concerning the payment of benefits for phy-
sicians’ services, 476 U. S., at 668, respondent may proceed
in District Court under general federal-question jurisdiction.
Perhaps recognizing that this result follows straight-
forwardly from what our Michigan Academy opinion actu-
ally says, the majority creatively recasts that decision as
having established an exception to § 1395ii’s incorporation of
§ 405(h): Section 1395ii will not apply “where its application
to a particular category of cases, such as Medicare Part B
‘methodology’ challenges, would not lead to a channeling of
review through the agency, but would mean no review at
all.” Ante, at 17. In doing so, the Court confuses the rea-
soning (more precisely, one half of the reasoning) of Michi-
gan Academy with the holding in that case. In Michigan
Academy, we undoubtedly relied on the reality that, if the
challenge to the Secretary’s regulations were not allowed
to proceed under general federal-question jurisdiction, the
Secretary’s administration of Part B benefit amount deter-
minations would be entirely insulated from judicial review, a
result in tension with the “ ‘strong presumption that Con-
gress did not mean to prohibit all judicial review’ of execu-
tive action.” 8 476 U. S., at 681 (quoting Dunlop v. Bachow-
8 The majority opinion may enjoy the “virtu[e] of consistency with Mich-
igan Academy’s actual language,” ante, at 19—but only some of the lan-
guage, and not the most important part. As I explain in the text, the
language that the majority opinion purports to track merely sets forth one
of the two rationales for the holding in Michigan Academy. My reading

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40 SHALALA v. ILLINOIS COUNCIL ON LONG
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Thomas, J., dissenting
ski, 421 U. S. 560, 567 (1975)). But we placed at least equal
reliance on the legislative history of the 1972 amendments
to the Medicare Act, see 476 U. S., at 680, and our holding
was that challenges to particular determinations would trig-
ger § 1395ii, whereas challenges to the Secretary’s instruc-
tions and regulations governing particular determinations
would not, ibid.; see supra, at 38. Indeed, in setting aside
the physicians’ argument that § 405(h) bars general federal-
question jurisdiction only when Congress has provided
“specific procedures . . . for judicial review of final action
by the Secretary,” Michigan Academy, supra, at 679–680,
we expressly declined to decide the case by announcing the
“exception” suggested by the majority. While we might
have done so, cf. Mathews v. Eldridge, 424 U. S. 319, 328–
330 (1976) (describing limited exception to § 405(g)’s require-
ment that Secretary’s decision be “final” before judicial re-
view may be sought), we simply did not phrase our holding
in those terms.
II
To be sure, the reading of Michigan Academy that I would
adopt (and that the Court of Appeals adopted below, 143
F. 3d 1072, 1075–1076 (CA7 1998)), dictates a different result
in the earlier Ringer case. In Ringer, recall, the respond-
ents were individual Medicare claimants who brought a chal-
lenge to the Secretary’s policy regarding payment of Medi-
care benefits for a specific surgical procedure. As noted, we
(and the parties) simply assumed that § 1395ii’s incorporating
reference to § 405(h) was triggered by such a challenge, and
proceeded directly to decide the case based on § 405(h). And
yet, under Michigan Academy’s gloss on § 1395ii, we would
never have reached § 405(h) because § 1395ii would not have
of Michigan Academy, not the majority’s, is consistent with the language
in Michigan Academy setting forth that case’s holding: § 1395ii “fore-
close[s] review only of ‘amount determinations,’ . . . [not] challenges to the
validity of the Secretary’s instructions and regulations.” 476 U. S., at 680.

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41 Cite as: 529 U. S. 1 (2000)
Thomas, J., dissenting
been activated by such a “challeng[e] to the validity of the
Secretary’s . . . regulatio[n].” 476 U. S., at 680.9
But it is one thing to conclude that the result in Ringer
would have been different had we applied Michigan Acade-
my’s § 1395ii analysis to that case; it is quite another to de-
clare that Michigan Academy effected a sub silentio over-
ruling of Ringer. Contrary to the majority’s representation,
ante, at 18, my approach entails only the former, and there-
fore does not offend stare decisis principles as a sub silentio
overruling would. As noted, supra, at 35, our opinion in
Ringer did not expressly decide the meaning of § 1395ii, as-
suming instead (as the parties had done) that § 1395ii func-
tions as a garden variety incorporating reference, i. e., that
§ 1395ii incorporates § 405(h) in every case involving the
Medicare Act. Accordingly, “[t]he most that can be said is
that the point was in the cas[e] if anyone had seen fit to
raise it. Questions which merely lurk in the record, neither
brought to the attention of the court nor ruled upon, are
not to be considered as having been so decided as to consti-
tute precedents.” Webster v. Fall, 266 U. S. 507, 511 (1925).
See also, e. g., Lopez v. Monterey County, 525 U. S. 266, 281
(1999) (“[T]his Court is not bound by its prior assumptions”);
United States v. L. A. Tucker Truck Lines, Inc., 344 U. S.
33, 38 (1952). In other words, Michigan Academy could
not have overruled Ringer (sub silentio or otherwise) on a
9 While I readily agree with the majority’s observation that my reading
of Michigan Academy implies a different result in Ringer, I fail to com-
prehend the majority’s assertion that my view of Michigan Academy
also implies a different result in Weinberger v. Salfi, 422 U. S. 749 (1975).
See ante, at 18–19. As noted, supra, at 34, Salfi was a Social Security
case, and so § 405(h) applied of its own force.
Our post-Michigan Academy cases are entirely consistent with my
reading of Michigan Academy. For example, in Your Home Visiting
Nurse Services, Inc. v. Shalala, 525 U. S. 449 (1999), the challenge was
directed to a particular determination of reimbursement benefits, and
we held that § 405(h), as incorporated into the Medicare Act by § 1395ii,
precluded resort to general federal-question jurisdiction.

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42 SHALALA v. ILLINOIS COUNCIL ON LONG
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Thomas, J., dissenting
point that Ringer did not decide. The majority opinion can
therefore claim no support from its asserted “consistency
with the holdings of earlier cases such as Ringer.” Ante,
at 19. Ringer simply does not constitute a holding on the
meaning of § 1395ii; or if it does, the majority has engaged
in the very practice it condemns—a sub silentio overruling
(of Webster v. Fall, supra).
Moreover, the majority’s criticism of my approach as de-
claring a sub silentio overruling is just as well directed at
itself, for Ringer is no less overruled by the majority’s view
of Michigan Academy than by my own. According to the
majority, the Michigan Academy “exception” to § 1395ii ap-
plies where the aggrieved party “can obtain no review at all
unless it can obtain judicial review in a § 1331 action.” Ante,
at 20. Consider how this test would apply to Freeman
Ringer, one of the four plaintiffs in Ringer. Ringer sought
to challenge the Secretary’s policy proscribing reimburse-
ment for a certain type of surgery (a Part A benefits issue),
invoking general federal-question jurisdiction. He had no
concrete reimbursement claim to present, for he did not
possess the financial means to pay for the surgery up front
and await reimbursement. Nor, apparently, could he obtain
private financing for the surgery. See Ringer, 466 U. S., at
620; id., at 637, n. 24 (Stevens, J., concurring in judgment
in part and dissenting in part) (“Ringer would like nothing
more than to give the Secretary [the] opportunity [to rule
on a concrete claim for reimbursement]”); Brief for Petition-
ers 42–43, n. 23. It seems to me that Ringer is the paradig-
matic example of a party who “can obtain no review at all
unless [he] can obtain judicial review in a § 1331 action,”
ante, at 20, such that he plainly would qualify for the Michi-
gan Academy exception to § 1395ii as described by the
majority.
The majority purports to reaffirm Ringer in toto, but it
does so only by revising that case to hold that Ringer, not-
withstanding his own inability to obtain judicial review with-

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43 Cite as: 529 U. S. 1 (2000)
Thomas, J., dissenting
out an anticipatory challenge, did not qualify for the Michi-
gan Academy exception to § 1395ii because others in his
class could afford to pursue review by undergoing the sur-
gery and presenting a concrete claim for reimbursement.
See ante, at 12. Setting aside the peculiarity of interpreting
a statute to deny judicial review to the poor with the promise
that the rich will obtain review in their stead,10 the ma-
jority’s gloss on Ringer ignores the Ringer Court’s own de-
scription of its holding. In rejecting plaintiff Ringer’s at-
tempt to use § 1331, the Ringer Court did not rely on some
notion that Ringer or those similarly situated to him could
as a practical matter seek judicial review through some
means other than § 1331; the Court instead reasoned that
Ringer’s claim was “essentially one requesting the payment
of benefits for [a particular] surgery, a claim cognizable only
under § 405(g).” 466 U. S., at 620.
III
It would overstate matters to say that the foregoing analy-
sis demonstrates beyond question that respondent may in-
voke general federal-question jurisdiction. Any remaining
doubt is resolved, however, by the longstanding canon that
“judicial review of executive action ‘will not be cut off unless
there is persuasive reason to believe that such was the pur-
pose of Congress.’ ” Gutierrez de Martinez v. Lamagno,
515 U. S. 417, 424 (1995) (quoting Abbott Laboratories v.
Gardner, 387 U. S. 136, 140 (1967)). See also, e. g., McNary
v. Haitian Refugee Center, Inc., 498 U. S. 479, 496 (1991);
10 The majority attempts to soften the blow by explaining that “indi-
vidual hardship may be mitigated in a different way, namely, through
excusing a number of the steps in the agency process, though not the step
of presentment of the matter to the agency.” Ante, at 23 (emphasis
added). But the italicized words show why the majority’s concession pro-
vides cold comfort to a plaintiff like Ringer—or, arguably, the nursing
homes represented by respondent here, see ante, at 21–22—who cannot
afford to present a concrete claim to the agency, and thus can obtain
neither administrative nor judicial review.

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44 SHALALA v. ILLINOIS COUNCIL ON LONG
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Thomas, J., dissenting
Traynor v. Turnage, 485 U. S. 535, 542 (1988); Michigan
Academy, 476 U. S., at 670; Johnson v. Robison, 415 U. S.
361, 373–374 (1974); Stark v. Wickard, 321 U. S. 288, 309–
310 (1944).
The rationale for this “presumption,” Abbott Laboratories,
supra, at 140, is straightforward enough: Our constitutional
structure contemplates judicial review as a check on adminis-
trative action that is in disregard of legislative mandates or
constitutional rights. As Chief Justice Marshall explained:
“ ‘It would excite some surprise if, in a government of
laws and of principle, furnished with a department
whose appropriate duty it is to decide questions of right,
not only between individuals, but between the govern-
ment and individuals; a ministerial officer might, at
his discretion, issue this powerful process . . . leaving to
[the claimant] no remedy, no appeal to the laws of his
country, if he should believe the claim to be unjust. But
this anomaly does not exist; this imputation cannot be
cast on the legislature of the United States.’ ” United
States v. Nourse, 9 Pet. 8, 28–29 (1835) (as quoted in
Gutierrez de Martinez, supra, at 424).
See also S. Breyer, R. Stewart, C. Sunstein, & M. Spitzer,
Administrative Law and Regulatory Policy 832 (4th ed. 1999)
(suggesting that “the presumption of review owes its source
to considerations of accountability and legislative supremacy,
ideas embodied in article I, and also to rule of law consid-
erations, embodied in the due process clause”); Michigan
Academy, supra, at 681–682, n. 12 (noting that interpreting
statute to allow judicial review would avoid the serious
constitutional issue that would arise if a judicial forum for
constitutional claims were denied).11
11 We have observed that Congress “reinforced” the presumption by
enacting the Administrative Procedure Act (APA), which “embodies the
basic presumption of judicial review to one ‘suffering legal wrong because
of agency action, or adversely affected or aggrieved by agency action

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45 Cite as: 529 U. S. 1 (2000)
Thomas, J., dissenting
Contrary to the Secretary’s representation, Brief for Pe-
titioners 31–32, the presumption favors not merely judicial
review “at some point,” but preenforcement judicial review.
While it is true that the presumption may not be quite as
strong when the question is now-or-later instead of now-or-
never, see Thunder Basin Coal Co. v. Reich, 510 U. S. 200,
207, n. 8, 215, n. 20 (1994), our cases clearly establish that the
presumption applies in the former context. Indeed, Abbott
Laboratories, the “important case . . . which marks the re-
cent era of increased access to judicial review,” Breyer,
supra, at 831, itself involved a preenforcement challenge to
a regulation. Although the Food, Drug, and Cosmetic Act
(FDCA) did not authorize a preenforcement challenge to
the type of regulation the Secretary had issued, and indeed
expressly enumerated certain other kinds of regulations for
which preenforcement review was available, we explained
that these indicia of congressional intent must be viewed
through the lens of the presumption:
“The first question we consider is whether Congress by
the [FDCA] intended to forbid pre-enforcement review
of this sort of regulation promulgated by the Com-
missioner. The question is phrased in terms of ‘pro-
hibition’ rather than ‘authorization’ because a survey of
our cases shows that judicial review of a final agency
action by an aggrieved person will not be cut off unless
there is persuasive reason to believe that such was the
purpose of Congress.” Abbott Laboratories, 387 U. S.,
at 139–140.
We thus held that the suit could proceed. Id., at 148.
More recently, in Haitian Refugee Center, we reaffirmed
the applicability of the presumption in the context of a pre-
enforcement challenge. At issue in that case was the consti-
tutionality of the Immigration and Naturalization Service’s
within the meaning of a relevant statute.’ ” Abbott Laboratories v. Gard-
ner, 387 U. S. 136, 140 (1967) (quoting 5 U. S. C. § 702 (1964 ed., Supp. III)).

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46 SHALALA v. ILLINOIS COUNCIL ON LONG
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(INS) procedures for administering an amnesty program
for illegal aliens. Despite the availability of judicial review
of these procedures in the context of statutorily authorized
review of orders of exclusion or deportation, and notwith-
standing the statute’s express prohibition of judicial re-
view of an INS “determination respecting an application
for adjustment of status [under the amnesty program],” 8
U. S. C. § 1160(e)(1), we held that these factors did not suf-
fice to trump the “strong presumption in favor of judicial
review of administrative action.” Haitian Refugee Center,
498 U. S., at 498.
The majority declines to employ the presumption in
favor of preenforcement review to resolve the ambiguity
in § 1395ii; instead, it concocts a presumption against pre-
enforcement review, stating that its holding is “consisten[t]
with the distinction that this Court has often drawn between
a total preclusion of review and postponement of review.”
Ante, at 19 (citing Salfi, 422 U. S., at 762; Thunder Basin
Coal, supra, at 207, n. 8; Haitian Refugee Center, supra, at
496–499). But Thunder Basin Coal, as noted, supra, at 45,
teaches only that the presumption is not as strong when the
problem is one of delayed judicial review rather than com-
plete denial of judicial review—it does not establish that the
presumption lacks any force in the former context. And
Haitian Refugee Center directly supports the applicability
of the presumption in favor of preenforcement review; we
there invoked the presumption even though the plaintiffs had
a postenforcement review option—voluntarily surrendering
themselves for deportation and availing themselves of the
statutorily authorized judicial review of an order of exclu-
sion or deportation. 498 U. S., at 496. Only Salfi provides
the majority with modest support insofar as it acknowledged
(and distinguished) just the presumption against the com-
plete denial of judicial review, 422 U. S., at 762, omitting men-
tion of the presumption against delayed judicial review. But
this omission is readily explained: Presentment of a Social

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47 Cite as: 529 U. S. 1 (2000)
Thomas, J., dissenting
Security benefits claim for purposes of 42 U. S. C. § 405(g) is
accomplished by the near-costless act of filing an application
for benefits, to be contrasted with the extremely burden-
some presentment requirement facing the aliens in Haitian
Refugee Center or the named plaintiff in Ringer. The only
significant hardship facing the claimants in Salfi arose from
the possibility that a lengthy administrative review proc-
ess would postpone a judicial decision ordering the Secre-
tary to pay the disputed benefits; but the Court took care
of that problem by leniently construing § 405(g)’s require-
ment of a “final” agency decision and by allowing the Sec-
retary to waive entirely § 405(g)’s requirement that decision
be made “after a hearing.” At bottom, then, the major-
ity cannot demonstrate why the presumption in favor of
preenforcement review, which dates at least from Abbott
Laboratories, should not be invoked to resolve the debate
between our conflicting readings of § 1395ii.
There is a practical reason why we employ the pre-
sumption not only to questions of whether judicial review
is available, but also to questions of when judicial re-
view is available. Delayed review—that is, a requirement
that a regulated entity disobey the regulation, suffer an
enforcement proceeding by the agency, and only then seek
judicial review—may mean no review at all. For when
the costs of “presenting” a claim via the delayed review
route exceed the costs of simply complying with the regu-
lation, the regulated entity will buckle under and comply,
even when the regulation is plainly invalid. See Seidenfeld,
Playing Games with the Timing of Judicial Review, 58 Ohio
St. L. J. 85, 104 (1997). And we can expect that this con-
sequence will often flow from an interpretation of an am-
biguous statute to bar preenforcement review. In Haitian
Refugee Center, for example, the aliens’ “postenforcement”
review option for asserting their challenge to the agency’s
procedures required the aliens to voluntarily surrender
themselves for deportation, suffer an order of deporta-

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48 SHALALA v. ILLINOIS COUNCIL ON LONG
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tion, and seek judicial review of that order in the court of
appeals. These costs of presentment, we explained, were
“[q]uite obviously . . . tantamount to a complete denial of
judicial review for most undocumented aliens.” 498 U. S.,
at 496–497.
A similar predicament faces the nursing homes repre-
sented by respondent in the instant case, who contend that
the Secretary’s regulations (and manual) governing en-
forcement of substantive standards are unlawful in various
respects. The nursing homes’ “postenforcement” review
route is delineated by 42 U. S. C. § 1395cc(h)(1), which pro-
vides that “an institution or agency dissatisfied . . . with
a determination described in subsection (b)(2) of this sec-
tion shall be entitled to a hearing thereon by the Secretary
(after reasonable notice) to the same extent as is provided
in section 405(b) of this title, and to judicial review of the
Secretary’s final decision after such hearing as is provided
in section 405(g) of this title.” While the meaning of “deter-
mination” in the referenced 42 U. S. C. § 1395cc(b)(2) (1994
ed., Supp. III) is not entirely free from doubt, the Secretary
has interpreted these provisions to mean that administrative
and judicial review is afforded for “any determination that a
provider has failed to comply substantially with the statute,
agreements, or regulations, whether termination or ‘some
other remedy is imposed.’ ” Ante, at 21 (quoting Reply Brief
for Petitioners 14 (emphasis in original)). Still, even under
the Secretary’s reading, an inspection team’s assessment of
a deficiency (for noncompliance) against the nursing home
does not suffice to trigger administrative and judicial review
under § 1395cc(h). Presentment of a claim via § 1395cc(h) re-
quires the nursing home not merely to expose itself to an
assessment of a deficiency by an inspection team, but also
to forbear correction of the deficiency until the Secretary
(or her state designees) impose a remedy.
Respondent and its amici advance several plausible rea-
sons why such forbearance will prove costly—indeed, costly

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49 Cite as: 529 U. S. 1 (2000)
Thomas, J., dissenting
enough that compliance with the challenged regulations
and manual is the more rational option. For one, nursing
homes face the prospect of termination—the most severe of
remedies—simply by virtue of failing to submit a voluntary
plan of correction and correct the deficiencies. See 42 CFR
§ 488.456(b)(1) (1998). The Secretary’s only response is that
terminations are rarely imposed in fact, and certainly are
not imposed where the provider has postponed correction
of its deficiencies in order to preserve its appeal rights. But
any such leniency is solely a matter of grace by the Secre-
tary, see Tr. of Oral Arg. 31, and provides little comfort to
a nursing facility pondering the § 1395cc(h) route to judicial
review. And exposure to the termination remedy is not the
only consequence faced by a nursing home that forestalls
correction of its deficiencies. The Secretary also may im-
pose civil monetary penalties, which accrue for each day
of noncompliance, 42 CFR §§ 488.430, 488.440(b) (1998), and
thus quite plainly stand as a calibrated deterrent to the for-
bearance strategy. Cf. Ex parte Young, 209 U. S. 123, 148
(1908) (“[T]o impose upon a party interested the burden of
obtaining a judicial decision . . . only upon the condition that
if unsuccessful he must suffer imprisonment and pay fines . . .
is, in effect, to close up all approaches to the courts”).12
Other costs of the forbearance strategy are less tangible,
but potentially as significant. For example, a finding of a
deficiency at a nursing facility—which may well rest on un-
balanced or inaccurate data—is posted in a place easily ac-
cessible to residents, 42 CFR § 483.10(g)(1) (1998), disclosed
12 In Thunder Basin Coal Co. v. Reich, 510 U. S. 200 (1994), the ag-
grieved mine operator was similarly subject to civil penalties ($5,000) for
each day of noncompliance with statutory provisions, which would become
final and payable after review by the agency and the appropriate court of
appeals. Id., at 204, n. 4, 218. But, unlike the nursing homes at issue
here, the aggrieved mine operator apparently had the option of complying
and then bringing a judicial challenge. See id., at 221 (Scalia, J., concur-
ring in part and concurring in judgment).

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to the public, 42 U. S. C. § 1395i–3(g)(5)(A), and posted on
the Health Care Finance Authority’s Internet website,
Reply Brief for Petitioners 20, n. 20.13 Such negative pub-
licity, which occurs before the nursing home may avail itself
of administrative or judicial review via § 1395cc(h), is likely
to result in substantial reputational harm. See Gardner v.
Toilet Goods Assn., Inc., 387 U. S. 167, 172 (1967) (“Respond-
ents note the importance of public good will in their indus-
try, and not without reason fear the disastrous impact of
an announcement that their cosmetics have been seized as
‘adulterated’ ”).
I recount these allegations of hardship to respondent’s
members not because they inform any case-by-case applica-
tion of the presumption in favor of preenforcement review,
but rather because such concerns motivate the presumption
in a general sense. A case-by-case inquiry into hardship is
accommodated instead by ripeness doctrine, which “evalu-
ate[s] both the fitness of the issues for judicial decision and
the hardship to the parties of withholding court consid-
eration.” Abbott Laboratories, 387 U. S., at 149 (emphasis
added). I read our cases to establish just this sort of analy-
sis: (1) in light of the presumption, construe an ambiguous
statute in favor of preenforcement review; (2) apply ripe-
ness doctrine to determine whether the suit should be
entertained. Thus, in Abbott Laboratories and its two
companion cases, we construed an ambiguous statute to
permit preenforcement review, see id., at 148; Gardner v.
Toilet Goods Assn., supra, at 168; Toilet Goods Assn., Inc.
v. Gardner, 387 U. S. 158, 160 (1967), but we then proceeded
to hold that only the suits in the first two of these cases were
13 While the Secretary represents, Reply Brief for Petitioners 20, n. 20,
and the Court accepts, ante, at 22, that a deficient nursing home may
post a response on the website, respondent’s amici American Health Care
Association et al. assert that the website does not accommodate provider
comments, but only lists the date a facility has corrected a deficiency, Brief
for American Health Care Association et al. as Amici Curiae 18.

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ripe, Abbott Laboratories, supra, at 156; Gardner v. Toilet
Goods Assn., supra, at 170; Toilet Goods Assn. v. Gardner,
supra, at 160–161. See also Reno v. Catholic Social Serv-
ices, Inc., 509 U. S. 43, 56–66 (1993) (similar). In line with
this mode of analysis, the court below, after concluding
that the Medicare Act does not preclude general federal-
question jurisdiction over a preenforcement challenge to
the Secretary’s regulations, held that respondent’s APA
notice-and-comment challenge was ripe but that its consti-
tutional vagueness claim was not. 143 F. 3d, at 1076–1077.
While I express no view on the proper application of ripe-
ness doctrine to respondent’s claims,14 I am confident that
this method of analysis enjoys substantially more support
in our cases than does the majority’s approach, which pre-
scribes a case-by-case hardship inquiry at the threshold
stage of determining whether preenforcement review has
been precluded by statute. See ante, at 20 (holding that
§ 1395ii does not incorporate § 405(h) where the aggrieved
party “can obtain no review at all unless it can obtain judicial
review in a § 1331 action”). While the majority’s variation
would be harmless if its hardship test were no more strin-
gent than the hardship prong of ordinary ripeness doctrine,
I presume its test is more exacting—otherwise the majority
opinion is no more than a well-disguised application of ripe-
ness doctrine to the facts of this case.15 At bottom, then,
the majority superimposes a more burdensome hardship test
on ordinary ripeness doctrine for aggrieved persons who
14 The Secretary did not seek review of the Court of Appeals’ hold-
ing that respondent’s APA notice-and-comment challenge is ripe, Pet. for
Cert. I, and this Court denied respondent’s cross-petition for certiorari
seeking review of the Court of Appeals’ holding that respondent’s vague-
ness challenge is not ripe, 526 U. S. 1067 (1999).
15 The majority acknowledges that its hardship test is more burden-
some than the hardship prong of ripeness doctrine in at least one respect.
We are told that the relevant hardship is not that endured by the “individ-
ual plaintiff,” but rather that confronted by the “class” of persons similarly
situated to the individual plaintiff. Ante, at 22–23; see supra, at 42–43.

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seek to bring a preenforcement challenge to the Secretary’s
regulations under the Medicare Act.16
* * *
Instead, I would hold that § 1395ii, as interpreted by Mich-
igan Academy, does not in this case incorporate § 405(h)’s
preclusion of federal-question jurisdiction, especially in
light of the presumption in favor of preenforcement review.
I respectfully dissent.
16 The majority betrays its misunderstanding of the relationship be-
tween the presumption in favor of preenforcement review and ripe-
ness doctrine when it says that “any . . . presumption [in favor of pre-
enforcement review] must be far weaker than a presumption against
preclusion of all review in light of the traditional ripeness doctrine, which
often requires initial presentation of a claim to an agency.” Ante, at 19–
20. I do not dispute that respondent must demonstrate that its claims
are ripe before the District Court may entertain respondent’s preenforce-
ment challenge. My point is only that respondent should be permitted
to make its ripeness argument and to have that argument assessed ac-
cording to traditional ripeness doctrine, rather than facing statutory pre-
clusion of review by (inevitably) failing the majority’s “super-hardship”
test. As I explained, supra, at 50, our cases establish a two-step analysis:
(1) in light of the presumption in favor of preenforcement review, construe
an ambiguous statute to allow preenforcement review; (2) apply ripeness
doctrine to determine whether the suit should be entertained.