Dr. Ruben Thorbus sought injunctive relief against the Secretary of the United States Department of Health and Human Services (HHS) to bar his exclusion as a participating physician in the Medicare program. He asserts jurisdiction in the district court based on 42 U.S.C. Sec. 405(g) (1982) and 28 U.S.C. Secs. 1331, 1361 (1982). The district court1 dismissed the complaint on the ground that the court lacked jurisdiction because Dr. Thorbus failed to exhaust his administrative remedies as required by 42 U.S.C. Sec. 405(g). This court granted Dr. Thorbus's motion for a stay from exclusion pending appeal.

Dr. Thorbus is a physician in rural northwestern Minnesota. Sixty percent of his clinic patients are Medicare or Medicaid recipients and fifteen percent are covered by Blue Cross and Blue Shield (BCBS).

BCBS has been appointed by HHS to administer the Medicare/Medicaid program in Minnesota. Acting in its capacity as a Medicare administrator, BCBS requested reviews in 1983 of some of Dr. Thorbus's cases by a Peer Review Organization (PRO) and a medical consultant. Both reviews concluded, inter alia, that in certain cases in 1983 and 1984, Dr. Thorbus had overused particular diagnostic endoscopic procedures.2

BCBS referred the matter to the Office of Inspector General (OIG) of HHS. In December of 1983 HHS placed all of Dr. Thorbus's claims for Medicare reimbursement on a program of review prior to payment. In October of 1986 OIG notified him that: (1) it was proposing to exclude him from reimbursement under the Medicare program for ten years; and (2) he had a right either to submit documentary evidence and written argument to OIG or to request an opportunity to present oral argument and evidence to an OIG official.

Dr. Thorbus chose the latter alternative and, with his attorney, made an oral presentation and submitted written documentation to an OIG official in January of 1987. By letter dated October 30, 1987, OIG notified Dr. Thorbus that it was excluding him from Medicare reimbursement for five years, and that it would be publishing notice of his exclusion.3 He was notified that if he was dissatisfied with the decision he could request a hearing before an Administrative Law Judge (ALJ) of the Social Security Administration. He has requested such a hearing.4 Thereafter, Dr. Thorbus filed suit seeking equitable relief in federal district court; the district court dismissed the suit for lack of jurisdiction on the grounds that Dr. Thorbus had not exhausted his administrative remedies and had not presented a colorable constitutional claim or shown irreparable harm. This court stayed Dr. Thorbus's exclusion and publication of the notice pending appeal.

The initial question we must ask is whether the federal courts have subject matter jurisdiction to grant an injunction during the pendency of the administrative procedures within HHS. In Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975), the Supreme Court discussed the prerequisites for judicial review under section 405(g). There the Court found that a final decision by the Secretary made after a hearing was "central to the requisite grant of subject-matter jurisdiction * * *." Id. at 764, 95 S.Ct. at 2466. The Court then noted:

Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.

Id. at 765, 95 S.Ct. at 2467. In Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), however, the Supreme Court recognized an exception to the statutory requirement of exhaustion of administrative remedies.

To assert the exception under Mathews, a claimant must: (1) raise a colorable constitutional claim collateral to his substantive claim of entitlement; (2) show that he would be irreparably harmed by enforcement of the exhaustion requirement; and (3) show that the purposes of the exhaustion requirement would not be served by requiring further administrative procedures. Id. at 329-31, 96 S.Ct. at 900; see also Bowen v. City of New York, 476 U.S. 467, 484, 106 S. Ct. 2022, 2032, 90 L. Ed. 2d 462 (1986).

This court has held that a constitutional claim is colorable if it contains "some merit." Jensen v. Schweiker, 709 F.2d 1227, 1230 (8th Cir.1983). In Jensen, we acknowledged the difference between the finding of a colorable claim and a decision on the merits. Id. at 1230 n. 2; see also Koerpel v. Heckler, 797 F.2d 858, 863 (10th Cir.1986) (court analyzed underlying issue of property and liberty interests; held no property interest but a colorable liberty interest sufficient for jurisdiction); Boettcher v. Secretary of HHS, 759 F.2d 719, 722 (9th Cir.1985) (colorable claim if not "wholly insubstantial, immaterial or frivolous"); cf. Varandani v. Bowen, 824 F.2d 307, 310 (4th Cir.1987) (court doubtful of whether colorable due process violation existed in doctor's suspension from Medicare reimbursement, but actually rejected on merits), cert. dismissed under Supreme Court Rule 53, --- U.S. ----, 108 S. Ct. 1000, 98 L. Ed. 2d 968 (1988) (on motion to dismiss made by petitioner or both parties).

Although we deem the facts marginal to support a colorable claim,5 for purposes of our discussion, we assume without deciding that Dr. Thorbus has stated a constitutional claim sufficiently colorable for the purposes of jurisdiction in federal court. We do so simply because we find that Dr. Thorbus has failed to sustain proof of a constitutional violation and further has failed to establish irreparable harm sufficient to establish that the district court abused its discretion in denying injunctive relief.

Although this is a case of first impression in this circuit, four of our sister circuits have reviewed due process challenges to exclusion of physicians from Medicare reimbursement. Cassim v. Bowen, 824 F.2d 791 (9th Cir.1987); Varandani v. Bowen, 824 F.2d 307 (4th Cir.1987), cert. dismissed, --- U.S. ----, 108 S. Ct. 1000, 98 L. Ed. 2d 968 (1988); Koerpel v. Heckler, 797 F.2d 858 (10th Cir.1986); Ritter v. Cohen, 797 F.2d 119 (3d Cir.1986). These decisions are unanimous in holding that the procedures established for exclusion are constitutionally sufficient.6 They are well-reasoned and need no further elaboration. Suffice it to say that the statutory review process provided in the administrative procedure Congress established is constitutionally sufficient.

Furthermore we find that Dr. Thorbus has not shown irreparable harm sufficient for the issuance of injunctive relief. The relevant factors in determining the propriety of the issuance of a preliminary injunction are clearly delineated in Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir.1981) (en banc). Ultimate success on the merits is not a "wooden" criterion to be examined on a prayer for injunctive relief. "The likelihood that plaintiff ultimately will prevail is meaningless in isolation. In every case, it must be examined in the context of the relative injuries to the parties and the public." Dataphase, 640 F.2d at 113. Here, it is argued that publication of Dr. Thorbus's exclusion would cause him both loss of income and harm to his reputation.7 Assuming this to be true, however, when that is balanced against the potential for unnecessary harm to his patients, the alleged irreparable injury to Dr. Thorbus loses its significance.8 We conclude that the district court did not err in refusing to issue an injunction in this case.

Judgment affirmed.