Yale New Haven Hosp., Plaintiff-Appellee-Cross-Appellant v. Becerra, Defendant-Appellant-Cross-Appellee* Before: Wesley, Sullivan, C.JJ., Koeltl, D.J.† Appeal from the United States District Court for the District of Connecticut No. 18-cv-1230, Janet C. Hall, Judge. Yale New Haven Hospital (“YNHH”) receives federal funds under the Medicare Act, 42 U.S.C. §1395 et seq. As part of the statutory formula for determining appropriate funding, the Medicare Act directs the Secretary of Health and Human Services (the “Secretary”) to “estimate[]” the “ amount of uncompensated care” that each hospital will provide to indigent patients in a given federal fiscal year (“FFY”). Id. §1395ww(r)(2)(C)(i). Here, YNHH contends that the Secretary failed to conduct adequate notice-and-comment rulemaking before choosing to use only YNHH’s historical data — and not that of a hospital that had recently merged into YNHH — to estimate YNHH’s amount of uncompensated care for FFY 2014. The Secretary moved to dismiss for lack of subject-matter jurisdiction under 42 U.S.C §1395ww(r)(3), which prohibits “judicial review” of “[a]ny estimate of the Secretary.” The district court (Hall, J.) denied the Secretary’s motion, reasoning that section 1395ww(r)(3) applies only to substantive challenges to estimates, but not to procedural challenges like YNHH’s. The district court subsequently granted summary judgment in favor of YNHH. The Secretary now appeals, disputing (1) the district court’s ruling that it had jurisdiction to consider YNHH’s procedural challenge, and alternatively (2) the district court’s merits ruling that the Secretary’s estimate was procedurally unlawful. YNHH defends the district court’s rulings on both counts, also contending that, even if its challenge were barred by section 1395ww(r)(3), we (and the district court) would have inherent jurisdiction to consider it on a theory of ultra vires agency action. Additionally, YNHH cross-appeals, disputing the district court’s chosen remedy. We conclude that the plain meaning of section 1395ww(r)(3) expressly bars any challenge to an “estimate of the Secretary” — whether cast in substantive or procedural terms — and we reject YNHH’s argument that the canons of statutory construction justify a contrary result. We also hold that the ultra-vires exception, which is available only where a statutory preclusion of review is implied rather than express, is inapplicable here. As a result, we REVERSE the district court’s denial of the Secretary’s motion to dismiss YNHH’s procedural challenge for lack of subject-matter jurisdiction; VACATE, for lack of subject-matter jurisdiction, the district court’s grant of summary judgment for YNHH on its procedural challenge; REMAND the case to the district court with instructions to dismiss the remainder of YNHH’s action for lack of subject-matter jurisdiction; and DISMISS AS MOOT YNHH’s cross-appeal disputing the district court’s chosen remedy. REVERSED IN PART, VACATED IN PART, AND REMANDED; CROSS-APPEAL DISMISSED AS MOOT. RICHARD SULLIVAN, C.J. Yale New Haven Hospital (“YNHH,” or the “Hospital”) receives federal funds under the Medicare Act, 42 U.S.C. §1395 et seq., for serving uninsured patients who cannot pay for the healthcare they receive. As part of the statutory formula for determining the appropriate funding for such care, the Medicare Act directs the Secretary of Health and Human Services (“HHS”) (the “Secretary”) to make certain “estimates.” As relevant here, the Secretary must “estimate[]” the “ amount of uncompensated care” that each hospital will provide in a given federal fiscal year (“FFY”), based on the “data” that “the Secretary determines” “appropriate” to “use” as the best “proxy for the costs of…hospitals for treating the uninsured.” Id. §1395ww(r)(2)(C)(i). The Medicare Act provides that there “shall be no…judicial review” of “[a]ny” such “estimate of the Secretary.” Id. §1395ww(r)(3)(A). Here, YNHH challenges the Secretary’s estimate of its amount of uncompensated care for FFY 2014, the first FFY following YNHH’s merger with the Hospital of Saint Raphael (“St. Raphael”), a nearby hospital that had historically treated a proportionally greater share of low-income patients than YNHH. YNHH contends that the Secretary failed to abide by adequate notice-and-comment rulemaking procedures before choosing to use only YNHH’s historical data — and not St. Raphael’s — to estimate YNHH’s amount of uncompensated care for FFY 2014. The Secretary moved to dismiss this claim for lack of subject-matter jurisdiction, arguing that it was barred by section 1395ww(r)(3)’s prohibition on judicial review of the “estimate[s] of the Secretary.” Id. The district court (Hall, J.) denied the Secretary’s motion, reasoning that section 1395ww(r)(3) applies only to substantive challenges to the Secretary’s estimates, whereas YNHH’s challenge was procedural. The district court subsequently granted summary judgment in favor of YNHH, finding that the Secretary had indeed failed to conduct adequate notice-and-comment rulemaking before choosing to exclude the St. Raphael data, and remanded to the Secretary without vacating his calculation of YNHH’s 2014 payment. The Secretary now appeals, disputing (1) the district court’s ruling that it had jurisdiction, notwithstanding section 1395ww(r)(3), to consider YNHH’s procedural challenge; and alternatively (2) the district court’s merits ruling that the Secretary’s exclusion of the St. Raphael data was procedurally unlawful. YNHH defends the district court’s rulings on both counts, also contending that, even if its challenge were barred by section 1395ww(r)(3), we (and the district court) would nevertheless have inherent subject-matter jurisdiction under Leedom v. Kyne, 358 U.S. 184 (1958), to consider it on a theory of ultra vires agency action. Additionally, YNHH cross-appeals, disputing the district court’s chosen remedy of remand without vacatur. We conclude that the plain and ordinary meaning of section 1395ww(r)(3)’s text bars any challenge to an “estimate of the Secretary” — whether cast in substantive or procedural terms — and we reject YNHH’s arguments that either the canon of meaningful variation or the substantive canon favoring judicial review of executive action justifies departing from the plain meaning of the text. We therefore hold that section 1395ww(r)(3) expressly deprives us — and the district court — of subject-matter jurisdiction to consider YNHH’s challenge. We also hold that Kyne’s ultra-vires exception, which is available only where the pertinent statutory preclusion of review is implied rather than express, is inapplicable here. As a result, we REVERSE the district court’s denial of the Secretary’s motion to dismiss YNHH’s procedural challenge for lack of subject-matter jurisdiction; VACATE, for lack of subject-matter jurisdiction, the district court’s grant of summary judgment for YNHH on its procedural challenge; REMAND the case to the district court with instructions to dismiss the remainder of YNHH’s action for lack of subject-matter jurisdiction; and DISMISS AS MOOT YNHH’s cross-appeal disputing the district court’s chosen remedy of remand without vacatur. I. Background Under the Medicare Act, 42 U.S.C. §1395 et seq. — enacted by Congress in 1965 as Title XVIII of the Social Security Act, and administered by the Secretary, see id. §1395kk(a) — the federal government pays for healthcare for elderly and disabled individuals. Under Medicare’s Inpatient Prospective Payment System, the Secretary reimburses participating hospitals for the operating costs of providing inpatient hospital services to Medicare beneficiaries. See id. §1395ww(d). Hospitals that serve “a significantly disproportionate number of low-income patients,” id. §1395ww(d)(5)(F)(i)(I), are deemed “disproportionate share hospital[s]” (“ DSHs”) and receive an increased payment, id. §1395ww(r), in recognition of the relatively higher costs associated with providing such care. Prior to FFY 2014, the Secretary had calculated hospitals’ DSH payments under a statutory formula (the “Traditional DSH Formula”), id. §1395ww(d)(5)(F)(vi)-(vii), “that consider[ed] their Medicare utilization due to beneficiaries who also receive[d] Supplemental Security Income benefits and their Medicaid utilization,” Medicare Program 2014 Final Rule, 78 Fed. Reg. 50,496, 50,505 (Aug. 19, 2013). The Traditional DSH Formula, however, did not account for the cost to hospitals of providing “uncompensated care,” i.e., care for patients who have no means to pay (whether through federally furnished insurance programs or otherwise). See id. at 50,622, 50,634-35. The Patient Protection and Affordable Care Act of 2010 (the “ACA”) implemented a new formula for calculating DSH payments from FFY 2014 onward (the “Adjusted DSH Formula”), 42 U.S.C. §1395ww(r), which places greater emphasis on the cost to hospitals of providing uncompensated care. Under the Adjusted DSH Formula, each hospital receives 25 percent of the amount it would have received under the Traditional DSH Formula, id. §1395ww(r)(1), as well as an “[a]dditional payment” (the “UC DSH Payment”) calculated by multiplying three statutorily defined “factors,” each based on various data points “as estimated by the Secretary,” id. §1395ww(r)(2). At issue in this case is “Factor [T]hree,” which measures an individual hospital’s share of all uncompensated care nationwide. Id. §1395ww(r)(2)(C). Factor Three is calculated by taking the quotient of the following ratio: (i) the amount of uncompensated care for such hospital for a period selected by the Secretary (as estimated by the Secretary, based on appropriate data (including, in the case where the Secretary determines that alternative data is available which is a better proxy for the costs of [DSHs] for treating the uninsured, the use of such alternative data))… (ii) the aggregate amount of uncompensated care for all [DSHs] that receive a payment under this subsection for such period (as so estimated, based on such data). Id. The ACA’s amendments to the Medicare Act provide that “[t]here shall be no administrative or judicial review under section 1395ff of this title, section 1395oo of this title, or otherwise of…[a]ny estimate of the Secretary for purposes of determining the [three] factors [that make up the UC DSH Payment formula].” Id. §1395ww(r)(3)(A). In September 2012, St. Raphael merged into YNHH and became a campus of YNHH. After the merger was complete, YNHH continued to operate the former St. Raphael facilities as a second inpatient acute care hospital campus with all services, including its provision of uncompensated care, being provided under YNHH’s name and certification number (as used in HHS databases for tracking services provided by Medicare — and Medicaid-participating hospitals). About nine months after that merger, HHS announced a proposed rule to implement the Adjusted DSH Formula, specifying the “data sources and methodologies [to be used] for computing” the three UC DSH Payment factors for FFY 2014. Medicare Program 2014 Proposed Rule, 78 Fed. Reg. 27,486, 27,582 (May 10, 2013). The 2014 Proposed Rule stated that Factor Three would be calculated as the ratio of the aggregate number of days of inpatient care provided to Medicaid and Medicare-SSI patients at each DSH, divided by the total number of such days for all DSHs nationally, using recent historical cost-report data from HHS’s own databases. See id. at 27,588-90. The 2014 Proposed Rule did not specify whether, for newly merged hospitals, HHS would calculate Medicare payments using combined data from both hospitals or only the data previously provided by the acquiring hospital. In its 2014 Final Rule, HHS finalized the methodology and data selection it had previously announced. See Medicare Program 2014 Final Rule, 78 Fed. Reg. at 50,634-43. The 2014 Final Rule also explained that “in the case of a merger between two hospitals, Factor [Three] will be calculated based on the [data] under the surviving [hospital's HHS certification number]” and exclude “ [d]ata associated with a[n HHS certification number] that is no longer in use” (i.e., data from the subsumed hospital). Id. at 50,642. Consistent with this explanation, Factor Three of YNHH’s 2014 UC DSH Payment calculation was estimated using YNHH’s historical share of uncompensated care, but not St. Raphael’s. YNHH filed an appeal with the Provider Reimbursement Review Board (the “PRRB”), which denied relief on the ground that section 1395ww(r)(3) barred administrative review. The Administrator of the Centers for Medicare & Medicaid Services then declined to review the PRRB’s decision, making it the Secretary’s “final” decision for purposes of “judicial review.” 42 U.S.C. §1395oo(f)(1). YNHH then filed this action in district court, arguing that the Secretary’s calculation of the Hospital’s 2014 UC DSH Payment should be set aside on both substantive and procedural grounds. Based on section 1395ww(r)(3), the district court dismissed all of YNHH’s claims except its procedural challenge, which asserted that its 2014 UC DSH Payment had been calculated using a “procedurally unlawful” policy — i.e., the choice to exclude the St. Raphael data, as announced in the preamble of the 2014 Final Rule — adopted in violation of the notice-and-comment rulemaking requirements of the Administrative Procedure Act (the “APA”), see 5 U.S.C. §553, and the Medicare Act, see 42 U.S.C. §1395hh. Specifically, the district court reasoned that section 1395ww(r)(3) barred review of the Secretary’s estimates of factors within his UC DSH Payment calculation but did not bar “review of the promulgation of the Secretary’s rules and policies, separate from the substance of any such rules or policies or the determination of its estimates based on the substance of those rules or policies.” J. App’x at 51 (emphasis in original). YNHH and the Secretary subsequently cross-moved for summary judgment on YNHH’s remaining procedural challenge. The district court ruled for YNHH on the merits, finding that the 2014 Proposed Rule’s “oblique reference to an ‘individual hospital’ and ‘its most recent data’” had not fairly apprised YNHH of the so-called “Merged Hospital Policy” (i.e., the choice to exclude the St. Raphael data), which “departed from [HHS's past] practice of using combined data from merged hospitals” when calculating wage and payment report data for newly merged hospital entities. Id. at 96-97 (alteration omitted); see also YNHH Br. at 8 (defining “Merged Hospital Policy”). The court also recognized, however, that the “Factor Three calculations” at issue in the 2014 Final Rule “were finalized more than six years ago, and [that] setting them aside would result in significant disruption.” J. App’x at 106. Thus, although YNHH had not requested such a remedy, the court sua sponte determined that “the appropriate remedy is to remand this case to the Secretary without vacatur,” so the Secretary could take “further action consistent with” the district court’s opinion. Id. at 107-08. The court further noted that its ruling would permit HHS to “use proper rulemaking process to readopt the same policy and arrive at the same Factor Three calculations.” Id. at 89 n.6. The parties now cross-appeal from the district court’s judgment. The Secretary disputes (1) the district court’s ruling that it had jurisdiction, notwithstanding section 1395ww(r)(3), to consider YNHH’s challenge; and alternatively (2) its merits ruling that the Secretary’s exclusion of the St. Raphael’s data was procedurally unlawful. For its part, YNHH (1) takes issue with the relief granted by the court and seeks vacatur of the so-called “2014 Merged Hospital Policy,” and (2) reasserts its claim that even if its procedural challenge were barred by section 1395ww(r)(3), inherent subject-matter jurisdiction would still lie on a theory of ultra vires agency action. II. Standard of Review We review a district court’s determination of subject-matter jurisdiction de novo. See Tilton v. SEC, 824 F.3d 276, 281 (2d Cir. 2016). “The plaintiff[] bear[s] the burden of establishing jurisdiction,” including in cases where — as here — we are called upon to “interpret[] a provision that precludes judicial review.” Knapp Med. Ctr. v. Hargan, 875 F.3d 1125, 1128 (D.C. Cir. 2017) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).1 In interpreting such a provision, “we ‘must determine whether the challenged agency action is of the sort shielded from review’ and ‘may not inquire whether a challenged agency decision is arbitrary, capricious, or procedurally defective’ unless we are certain of our subject[-]matter jurisdiction.” Id. (quoting Amgen, Inc. v. Smith, 357 F.3d 103, 113 (D.C. Cir. 2004)). While courts have “long recognized a strong presumption in favor of judicial review of final agency action,” Am. Hosp. Ass’n v. Becerra, 142 S. Ct. 1896, 1902 (2022) (internal quotation marks omitted), “[t]he presumption of judicial review…may be overcome by, inter alia, specific language or specific legislative history that is a reliable indicator of congressional intent, or a specific congressional intent to preclude judicial review that is fairly discernible in the detail of the legislative scheme,” Bowen v. Mich. Acad. of Fam. Physicians, 476 U.S. 667, 673 (1986) (internal quotation marks omitted). Thus, “[w]hether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984). III. Discussion A. Statutory Jurisdiction The Medicare Act strips federal courts of jurisdiction to perform “judicial review…of…[a]ny estimate of the Secretary for purposes of determining the [three] factors,” 42 U.S.C. §1395ww(r)(3)(A), that are multiplied together to calculate qualifying hospitals’ UC DSH Payments for each federal fiscal year, see id. §1395ww(r)(2). One such “estimate” is the “estimate[] by the Secretary” of “the amount of uncompensated care for [each qualifying] hospital for a period selected by the Secretary…, based on appropriate data (including, in the case where the Secretary determines that alternative data is available which is a better proxy for the costs of [qualifying] hospitals for treating the uninsured, the use of such alternative data).” Id. §1395ww(r)(2)(C)(i). Here, the ultimate object of YNHH’s challenge is — and has been since the beginning of this litigation — the Secretary’s “estimate[]” of YNHH’s “ amount of uncompensated care” for FFY 2014, id., insofar as that estimate “excluded…the data” on care provided to uninsured patients at St. Raphael, which “had merged into [YNHH]…before the beginning of FFY 2014,” J. App’x at 8. YNHH’s original complaint, which included six separate claims, alleged that “the exclusion of this data was…unlawful” for a variety of reasons that it variously characterized as “substantive[]” or “ procedural[].” Id. at 9. But in the sole remaining claim pressed on appeal, YNHH argued only that “the exclusion of [the St. Raphael] data was…procedurally unlawful” because the “policy undergirding the exclusion of [such] data” for newly merged hospitals (1) “departed from longstanding [HHS] policy” concerning such hospitals, and (2) did so without “provid[ing] notice about the possible imposition of this new policy or an opportunity to comment, as required by the APA and the Medicare Act.” Id. Therefore, we must decide whether our reaching the merits of YNHH’s challenge would constitute “judicial review” of an “estimate of the Secretary,” which is barred under 42 U.S.C. §1395ww(r)(3)(A). 1. Clarifying YNHH’s Challenge YNHH suggests — and the district court agreed — that the “review” it seeks is several analytical steps removed from the “estimate” that the statute explicitly shields from “judicial review.” 42 U.S.C. §1395ww(r)(3)(A). Quoting the district court’s decision, YNHH asserts that its only remaining claim “does not challenge the Secretary’s estimate of the Hospital’s DSH payment, any of the underlying data, or the Secretary’s choice of such data. Instead, it is a challenge to the [rulemaking] procedure by which the Secretary established the FFY 2014 Merged Hospital Policy.” YNHH Br. at 38 (quoting J. App’x at 49) (alterations omitted). But this mischaracterizes both the statute and the nature of YNHH’s own challenge. While YNHH implies that the review-preclusion provision applies only to the Secretary’s bottom-line estimates of each qualifying hospital’s “DSH [P]ayment,” id. — rather than the Secretary’s “estimate[]” of the “ amount of uncompensated care,” 42 U.S.C. §1395ww(r)(2)(C)(i), which the Hospital characterizes as mere “underlying data,” YNHH Br. at 38 (quoting J. App’x at 49) — the statute makes clear that the “estimate[s]” it immunizes are the Secretary’s “ estimate[s]…for purposes of determining the factors” that are multiplied together to compute the UC DSH Payment, 42 U.S.C. §1395ww(r)(3)(A) (emphasis added). Thus, the Secretary’s estimate of YNHH’s amount of uncompensated care for FFY 2014 is not just “ underlying data” for the relevant “estimate” — it is the “estimate.” Contra YNHH Br. at 38 (quoting J. App’x at 49). Relatedly, YNHH’s contention that “the Secretary’s choice of…data” is a distinct precursor to, rather than a part of, the “estimate” in question, id., overlooks the statutory definition of the “estimate” at issue here. According to that definition, “the amount of uncompensated care for [YNHH] for [FFY 2014] []as estimated by the Secretary” explicitly encompasses the Secretary’s selection of “appropriate data,” “the Secretary['s] determin[ation] that alternative data is available which is a better proxy for the costs of [qualifying] hospitals for treating the uninsured,” and the Secretary’s choice of whether or not to “use…such alternative data.” 42 U.S.C. §1395ww(r)(2)(C)(i). Thus, we join the D.C. Circuit in “reject[ing] the argument that ‘an “estimate” is not the same thing as the “data” on which it is based.’” DCH Reg’l Med. Ctr. v. Azar, 925 F.3d 503, 506-07 (D.C. Cir. 2019) (quoting Fla. Health Scis. Ctr., Inc. v. Sec’y of HHS, 830 F.3d 515, 519 (D.C. Cir. 2016)). We also adopt the D.C. Circuit’s holding that “[i]n this statutory scheme, a challenge to the [Secretary's choice of what data to include and exclude] for estimating uncompensated care is…a challenge to the estimates themselves. The statute draws no distinction between the two.” Id. at 506. Indeed, the statutory text of section 1395ww(r)(2)(C)(i) explicitly and affirmatively defines the statutory term “estimate[]” to encompass “ the Secretary['s] determin[ation]” of what data is the “ be[st] proxy for the costs of [qualifying] hospitals for treating the uninsured” and, ultimately, of what data to “use” or not “use.” 42 U.S.C. §1395ww(r)(2)(C)(i). Similarly confusing is YNHH’s repeated invocation of the so-called “2014 Merged Hospital Policy” throughout its brief. YNHH Br. at 38 (quoting J. App’x at 49). As it turns out, the “Merged Hospital Policy” is a term of YNHH’s own invention, which it has defined simply to mean “the Secretary['s]…exclu[sion] from the calculation of the UC DSH [P]ayment for 2014 for [YNHH] (and a handful of other hospitals) the uncompensated[-]care data from another…eligible hospital that had merged into [YNHH] before the beginning of 2014.” Id. at 8 (defining “Merged Hospital Policy”). In other words, the “Merged Hospital Policy” amounts to nothing more than the Secretary’s choice to “exclude[]” (i.e., to not use) “ the uncompensated[-]care data from [St. Raphael].” Id. And again, the statute defines the Secretary’s “determin[ation]” of the most “ appropriate data” to “use” (or not to “use”) as a “proxy for the costs of [qualifying] hospitals for treating the uninsured,” 42 U.S.C. §1395ww(r)(2)(C)(i), as a constitutive part of one of the “estimate[s] of the Secretary” that is explicitly shielded from “judicial review,” id. §1395ww(r)(3)(A). At bottom, then, what YNHH calls “the FFY 2014 Merged Hospital Policy,” YNHH Br. at 38 (quoting J. App’x at 49), is really just the estimate of the Secretary as contemplated by the statute. 2. Interpreting the Statute Having cleared up YNHH’s attempts to recast the nature of its challenge, we still are left with an honest (and evidently novel) question of statutory interpretation: where the Medicare Act precludes “judicial review” of “[a]ny estimate of the Secretary,” does its bar extend to a claim that such an “estimate” was the product of a defective notice-and-comment rulemaking process? 42 U.S.C. §1395ww(r)(3)(A). YNHH’s argument focuses on a nearly metaphysical “separat[ion]” between “ the ‘estimate’” and the “promulgation” of policies “that result[] in the ‘estimate.’” YNHH Br. at 42 (quoting J. App’x at 51). Based on that putative separation, the Hospital contends that if “Congress [had] intended to preclude…otherwise valid request[s] for…judicial review of the Secretary’s failure to use proper rulemaking procedures” when generating “estimates,” then section 1395ww(r)(3) would say so “explicitly.” Id. at 36, 44. YNHH therefore argues that we may review its claim without violating the command of section 1395ww(r)(3)(A), since it is “challeng[ing] the Secretary’s rulemaking failures, not the ‘estimates of the Secretary.’” Id. at 45 (quoting J. App’x at 28). The Secretary’s argument, by contrast, is more straightforward: the plain text of the statute “bars judicial review of the estimates made by the Secretary for purposes of determining uncompensated[-]care payments to hospitals,” without making distinctions or carveouts based on “whether the challenge to such an estimate is cast in substantive or procedural terms.” Secretary Br. at 17 (capitalization standardized). We agree with the Secretary. a. Plain Meaning “[T]o determine whether the language at issue has a plain and unambiguous meaning,” Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, 846 F.3d 492, 512 (2d Cir. 2017) (citation omitted), “[w]e begin, as we must, with the text of the statute,” Lawrence + Mem’l Hosp. v. Burwell, 812 F.3d 257, 259 (2d Cir. 2016). The text of section 1395ww(r)(3) provides that “[t]here shall be no…judicial review…of…[a]ny estimate of the Secretary.” 42 U.S.C. §1395ww(r)(3)(A). To conduct “judicial review” means to exercise our “power to review the actions of other branches of government,” and in particular, our “power to invalidate…executive actions.” Judicial Review, Black’s Law Dictionary 1013 (11th ed. 2019) (emphasis added); see Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Hum. Res., 532 U.S. 598, 603 (2001) (treating Black’s Law Dictionary as authoritative when giving effect to “legal term[s] of art”); see also Env’t Def. v. Duke Energy Corp., 549 U.S. 561, 566, 572-73, 581 (2007) (equating “judicial review of [agency] regulations” with court’s “determination” of whether “the regulation…is invalid” (emphasis added)); Yakus v. United States, 321 U.S. 414, 418 (1944) (equating “ judicial review of regulations” with “determining the[ir] validity” (emphasis added)); United States ex rel. Daniman v. Shaughnessy, 210 F.2d 564, 565 (2d Cir. 1954) (explaining that “ judicial review” of an agency order “is had” when judicial proceedings “[]question[] the validity of such an order” (emphasis added)). Here, then, what section 1395ww(r)(3) precludes is our passing on the validity of the Secretary’s estimate — i.e., our considering the merits of any argument that such an estimate is invalid. An alleged procedural problem with the estimate, just like an alleged substantive problem with the estimate, is simply a putative reason why the estimate might be invalid. Indeed, YNHH’s complaint seems to concede as much, as it invoked the estimate’s alleged “procedural[]” deficiency relative to the APA and Medicare Act’s notice-and-comment requirements right alongside its alleged “ substantive[]” deficiency relative to the “ purpose of the UC DSH [P]ayment.” J. App’x at 9
