Appealed from: U.S. Office of Personnel Management.
Before Plager, Lourie, and Schall, Circuit Judges.
Lynn S. Chertkov seeks review of the June 30, 1993 decision of the Office of Personnel Management (OPM), which debarred her from participating as a provider in the Federal Employees' Health Benefits Program (FEHBP). Because OPM's decision was not a "determination" within the meaning of 5 U.S.C. § 8902a(g)(1) (1988), the right to appeal to this court set forth in 5 U.S.C. § 8902a(g)(2) does not apply. Therefore, we dismiss the appeal for lack of jurisdiction.
OPM debarred Chertkov after the Department of Health and Human Services (HHS) excluded her from participating in certain programs under the Social Security Act (e.g., Medicare and Medicaid).*fn1 The HHS exclusion followed the State of Maryland's prosecution of Chertkov for health-care fraud crimes. The authority under which OPM acted was its regulation which reads in part: "Debarment or suspension of a participant in a program by one agency shall have governmentwide effect." 5 C.F.R. § 970.100(a) (1992). Pursuant to 5 U.S.C. § 8902a(g)(2), Chertkov seeks to have us review OPM's decision. OPM contends that its decision here does not come within § 8902a(g)(2) and that we thus are without jurisdiction to hear the appeal. Before delving into the particulars of the undisputed facts of the case, we first will set forth the statutory and regulatory environment relating to OPM debarment decisions.
A. Statutory and Regulatory Background
1. The Common Rule on Debarments
As part of his initiative to curb fraud, waste and abuse in federal programs, President Reagan, on February 18, 1986, ordered that to the extent permitted by law "executive departments and agencies . . . participate in a system for debarment and suspension from programs and activities involving Federal financial and nonfinancial assistance and benefits." Exec. Order 12549, § 1(a), 51 Fed. Reg. 6370, 6370. In particular, the President ordered that "debarment or suspension of a participant in a program by one agency shall have government-wide effect." Id. To ensure this was possible, the President ordered that a current list of debarred individuals and organizations be maintained and that the list be made available to all departments and agencies. Id. § 5, 51 Fed. Reg. at 6371. The idea behind the President's order was to ensure that persons found to be unfit to deal with one government agency could not simply begin dealing with a different government agency, and to avoid the need for duplicative debarment proceedings in more than one federal executive department or agency.
Executive Order 12549 chartered the Office of Management and Budget (OMB) with issuing guidelines to executive departments and agencies regarding the implementation of the President's debarment initiative. Id. § 6, 51 Fed. Reg. at 6371. The guidelines thereafter issued by OMB were prepared in regulation format as a minimum model rule to facilitate their use by the executive departments and agencies in preparing their own regulations, tailored to their respective needs. 52 Fed. Reg. 20360, 20363-69 (May 29, 1987). This minimum model rule is referred to as the "common rule" on debarments. The common rule covers both original and collateral debarments. First, it sets forth procedures for debarment actions where the person has not yet been debarred by any department or agency (i.e., original debarments). Subpart C, § ___.300-.330, 52 Fed. Reg. at 20366-67. Second, it provides that a person debarred by any department or agency pursuant to minimum due process procedures is debarred from participating in any covered transaction in any department or agency for the period set by the agency that first debarred the person. Subpart B, § ___.200, 52 Fed. Reg. at 20365. This is the collateral debarment rule.
Various executive departments and agencies incorporated the common rule into their respective regulations, most with amendments intended to tailor the common rule to meet their particular needs. The first such adoption occurred on May 26, 1988, when twenty-seven agencies adopted their version of the common rule. 53 Fed. Reg. 19160, 19161. One agency adopting the common rule at this time was HHS. Id. at 19200 (codified at 45 C.F.R. Part 76 (1993)). On January 30, 1989, six more agencies adopted their version of the common rule. 54 Fed. Reg. 4722, 4722. OPM was not involved in either of these two rule-making exercises. However, as will be discussed below, OPM did eventually adopt the common rule in 1993.
2. Federal Employees Health Benefits Amendments Act of 1988
Before OPM had taken any action to implement the common rule, Congress, on November 14, 1988, enacted the Federal Employees Health Benefits Amendments Act of 1988, Pub. L. No. 100-654, 102 Stat. 3837 (FEHBA) (title I of which is codified at 5 U.S.C. § 8902a). One of the purposes of the FEHBA was "to protect FEHBP participants from unfit health care providers, providers who have had their licenses suspended, and providers who have committed fraud or other types of financial misconduct." H.R. Rep. No. 917, 100th Cong., 2d Sess. 2 (1988), reprinted in 1988 U.S.C.C.A.N. 5385, 5385. In furtherance of this purpose, the FEHBA established a list of grounds upon which a health care provider may be debarred from participating in the FEHBP. 5 U.S.C. §§ 8902a(b) and (c).*fn2 The grounds listed in §§ 8902a(b) and (c) notably do not include a debarment by another executive department or agency. The FEHBA also sets forth procedural protections in debarment actions. For example, OPM may not make a decision debarring a person without ...