Since the funds were no longer held by the Government, this removes this case from the parameters of Goldberg. In any event, Dr. Peterson's argument is laid to rest by our decision in Hilburn v. Butz, 5 Cir. 1972, 463 F.2d 1207. There, the Hilburn family were concededly owed money under various Department of Agriculture programs.
In addition to an evidentiary hearing plaintiff also seeks to enjoin defendants from withholding payment on any of the disputed claims or from withholding payment upon undisputed claims as a set off against the determined overpayments. There are no allegations set forth by plaintiff that would indicate that either this particular provider of services or that providers of services as a class under the Medicare Act will suffer the type of grievous loss envisioned by Goldberg v. Kelly, supra. As stated in Hilburn v. Butz, 463 F.2d 1207, 1209 (5th Cir. 1972): "The result in Goldberg v. Kelly was based on a judicial notice of the fact that welfare recipients as a class would be deprived of their very means of existence while awaiting the outcome of a post-termination hearing.
Id. at 598, 70 S.Ct. at 872. Cf. Hilburn v. Butz, 463 F.2d 1207, 1209 (5th Cir. 1972) (due process does not require the ASCS to give notice and hearing before withholding legitimately earned subsidies pending resolution of a disputed overpayment in a previous year).But see Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970) (pretermination hearing required where the termination of welfare "may deprive an eligible recipient of the very means by which to live while he waits.")
Further, it appears in any event that the notice of appeal was untimely and that there was likely no district court judgment whatever, partial or complete, in the case dismissed on appeal. A strikingly similar case to those presently before us is Hilburn v. Butz, 463 F.2d 1207 (5th Cir. 1972), cert. denied, 410 U.S. 942, 93 S.Ct. 1359, 35 L.Ed.2d 608 (1973). There the plaintiffs brought suit in the district court seeking a mandamus against the Secretary of Agriculture to require him to remit them sums due under Department of Agriculture programs for the years 1968 through 1970, payment of which the Secretary had withheld because of administrative determinations that plaintiffs had been overpaid by at least the same amount under these programs for the years 1964 through 1967.
United States v. Wurts, 303 U.S. 414, 415, 58 S.Ct. 637, 638, 82 L.Ed. 932, 934 (1938); United States v. Barlow, 132 U.S. 271, 279-280, 281, 282, 10 S.Ct. 77, 79-80, 33 L.Ed. 346, 351-352 (1889); Weiss v. United States, 296 F.2d 648 (CA 5, 1961). United States v. Munsey Trust Co., 332 U.S. 234, 67 S.Ct. 1599, 91 L.Ed. 2022 (1947); Hilburn v. Butz, 463 F.2d 1207 (CA 5, 1972); see also United States v. Bank of Metropolis, 40 U.S. (15 pet.) 377, 400-401, 10 L.Ed. 774, 783 (1841), in which defendant in an assumpsit action by the United States was denied a setoff where the claimed credit on which it was based was not authorized.
Id. at 598, 70 S.Ct. at 872. Cf. Hilburn v. Butz, 463 F.2d 1207, 1209 (5th Cir.1972) (due process does not require the ASCS to give notice and hearing before withholding legitimately earned subsidies pending resolution of a disputed overpayment in a previous year).Batson, 782 F.2d at 1315 (addressing administrative determinations ordering refund overpayments of cotton subsidies) (footnote omitted).
The government possesses the same self-help right of recovery through setoff as any other creditor. See United States v. Munsey Trust Co., 332 U.S. 234, 239, 108 Ct.Cl. 765, 67 S.Ct. 1599, 91 L.Ed. 2022 (1947); Hilburn v. Butz, 463 F.2d 1207 (5th Cir. 1972), cert. denied, 410 U.S. 942, 93 S.Ct. 1359, 35 L.Ed.2d 608 (1973); Burlington Northern Inc. v.United States, 199 Ct.Cl. 143, 462 F.2d 526 (Ct.Cl. 1972); Aetna Ins. Co. v. United States, 456 F.2d 773 (Ct.Cl. 1972); United States v. Cohen, 389 F.2d 689 (5th Cir. 1967). Thus, the United States can assert a right of setoff independent of a statutory grant of authority.
The Fifth Circuit has also denied the right to pre-deprivation hearings in cases involving withholding of payments for services under agricultural and Medicare programs. See Hilburn v. Butz, 463 F.2d 1207 (5th Cir. 1972); Peterson v. Weinberger, 508 F.2d 45 (5th Cir. 1975). If the need for a pre-action hearing turns upon the severity of the deprivation, a second line of decisions offers more solid support for the proposition that a hearing of some sort was required before the set-off was imposed in the present case.
Thus, while this Court concludes that due process does not require a hearing prior to the termination of payments, it is of the opinion that a post-termination review is most appropriate. Coral Gables Convalescent Home Inc. v. Richardson, 340 F. Supp. 646, 650 (S.D.Fla. 1972); Langhorne, supra, at 1219; Russi, supra, at 1353; Wilson Clinic Hospital, Inc. v. Blue Cross of South Carolina, 494 F.2d 50, 54 (4th Cir. 1974); Hilburn v. Butz, 463 F.2d 1207, 1209 (5th Cir. 1972). The procedure and requisites for the hearing process before the intermediary, subsequent to the audit determination, are set forth at 20 C.F.R. ยง 1801, et seq.