
    No. 498-80C.
    July 2, 1982
    Morton Sanet, M.D., and Morton Sanet, M.D., P.A., a Florida Corporation v. The United States
    
      Michael A. Lipsky, attorney of record, for plaintiff. Mandina & Lipsky, P.A., of counsel.
    
      Mary Mitchelson, with whom was Assistant Attorney General J. Paul McGrath, for defendant.
    Before Nichols, Kashiwa, and Bennett, Judges.
    
   Plaintiff, Dr. Sanet, and the related plaintiff corporation, are providers of health care services under 42 U.S.C. §1395-1395 ff. They have rendered medical services to Medicare beneficiaries, whose claims have been assigned to plaintiffs. We presume they have operated under the segment of the program called Medicare B. They allege a suit against them for overpayments is pending in the United States District Court, Southern District of Florida, and say the government claim is based on an unconstitutional sampling technique. They say the district judge has ruled he is without jurisdicton to review the administrative determination, which we suppose to mean he has no option but to award judgment for whatever overpayment the government chooses to claim. Plaintiff claims for $8,546.48 of medicare moneys withheld, plus declaratory relief against the ascertainment of balances by sampling technique.

Defendant moves to dismiss. If plaintiff has access to any forum where his entitlement to Medicare B payments can be adjudicated, it is not this court. Defendant cites United States v. Erika, Inc., 456 U.S. 201 (1982), which is squarely on point. The allegations of a constitutional violation are not adequate to establish an exception. Plaintiff may have a remedy in some other tribunal or the matter may be one which the Congress has reserved for direct handling by itself. Plaintiff has no remedy here. Plaintiffs petition is hereby dismissed.  