
    No. 501-80C.
    July 23, 1982
    Denio Fonseca, M.D. and Denio Fonseca, M.D., P.A., a Florida Corporation v. The United States
    
      Michael A. Lipsky, attorney of record, for plaintiffs. Mandina & Lipsky, P.A., of counsel.
    
      Alexander Younger, with whom was Assistant Attorney General J. Paul McGrath, for defendant.
    Before Davis, Nichols, and Smith, Judges.
    
   per curiam:

In this Medicare B, 42 U.S.C. § 1395, case, plaintiffs petition the court for a declaratory judgment arising under the due process clause of the fifth amendment, a monetary judgment, and a temporary restraining order. Specifically, plaintiffs claim that the private insurance carrier which administers the Medicare program in plaintiffs’ area improperly charged plaintiffs with receiving overpayments of benefits without providing plaintiffs with the opportunity to contest the charges. Defendant’s motion to dismiss claims that, in accordance with the Supreme Court’s holding in United States v. Erika, Inc., 456 U.S. 201 (1982), we must dismiss the petition on the ground that we do not have jurisdiction over plaintiffs’ claims. We agree with defendant and dismiss the petition.

In Erika, the Court held that "the statute [42 U.S.C. § 1395ff] fails to authorize further review [of insurance carriers’ determinations] of the amount of Part B awards.” Id. at 208. And we have recently held that "allegations of a constitutional violation are not adequate to establish an exception [to the limitation on judicial review].” Fox v. United States, ante at 770. Plaintiffs are seeking such a judicial review and we must, therefore, dismiss the petition for lack of jurisdiction over the subject matter.

it is therefore ordered, without hearing oral argument, that defendant’s motion to dismiss is granted and the petition is dismissed.  