Hazelwood Chronic & Convalescent Hospital v. Weinberger

543 F.2d 703 HAZELWOOD CHRONIC & CONVALESCENT HOSPITAL, INC., dba Kearney Street Convalescent Center, Plaintiff-Appellee, v. Caspar WEINBERGER, Secretary of Health, Education, and Welfare, et al., Defendants-Appellants. No. 74-2210. United States Court of Appeals, Ninth Circuit. Sept. 23, 1976. David M. Cohen, Atty. (argued), Dept. of Justice, Washington, D.C., for defendants-appellants. Michael J. Gentry (argued), Portland, Or., for plaintiff-appellee. Before WALLACE and KENNEDY, Circuit Judges, and FERGUSON, * District Judge. ANTHONY M. KENNEDY, Circuit Judge: 1 In this case we consider the effect of 42 U.S.C. § 405 (h) in precluding district court jurisdiction to review a decision of the Secretary of Health, Education, and Welfare regarding payments to a hospital under the Health Insurance for the Aged (Medicare) Act. The district court held that the Secretary's regulation for recapture of accelerated depreciation charges, 20 C.F.R. § 405.415 (a)(3) (1975), was unconstitutional as applied retroactively to the plaintiff. We hold that the district court had jurisdiction to review the Secretary's action, but reverse on the merits. I. FACTS 2 Under the Medicare Act,…