Shalala

Underlying this appeal is a challenge by Cedars-Sinai Medical Center and twenty-four other hospitals to a policy announced by the Department of Health and Human Services (“HHS”) in an amendment to its Medicare Manual. The new policy removed Medicare coverage of investigational medical devices and procedures that had not been approved for marketing by the Food and Drug Administration. The Hospitals claim the policy, now superceded by regulation, .was not originally issued in accordance with the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq. Because the policy was promulgated in 1986 and this case was not filed until 1995, the issue before us is whether it is barred by the six-year statute of limitations for suits against the United States. See 28 U.S.C. § 2401 (a). '

We have seen this case before. The government originally appealed from the district court’s decision on the merits that the policy was not validly promulgated. We remanded for the district court to consider whether the government had waived the statute of limitations defense, and if not, to consider in the first instance whether the statute was violated. See Cedars-Sinai Med. Ctr. v. Shalala, 125 F.3d…