c30:No. 16657

HASTIE, Circuit Judge
(dissenting).
As the majority opinion states, the Medical Care Recovery Act, 42 U.S.C. § 2651, was enacted to give the United States a statutory right to recover for certain medical services where the Supreme Court had held that such a right could not be created by judicial fiat. United States v. Standard Oil Co., 1947, 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067. However, as I read the legislative text, the Act is so phrased and arranged that, although the government is enabled to recover in specified circumstances, no remedy is provided for the situation presented by the present case. This may reflect poor draftsmanship or inadvertence. But, in my view, the courts have no more authority to supply a remedy in circumstances not specified in the Act than they had to give relief before the statute was enacted.
I agree with the majority that “subsection (b) prescribes the procedure for enforcement of the government’s right of recovery”. That subsection covers only two situations. First, it allows the United States to join in any action brought by or in the interest of the injured individual. Second, the United States is empowered to bring its own suit if a private “action or proceeding is not commenced within six months after” the United States first supplied medical care to the injured individual. This is all the procedural subsection provides. It simply does not afford a remedy in the present case where a private suit was filed within the six months period and the United States failed to intervene.
I think the majority agree with the reasoning and conclusion stated in the immediately preceding paragraph. But, while recognizing that subsection (a) of section 2651 declares and defines the right created by the statute and subsection (b), as its title indicates, states the authorized “enforcement procedure”, the majority conclude that subsection (a) somehow independently gives courts implied authority to permit other enforcement procedures. Moreover, in thus extending the reach of subsection (a), the majority are compelled to disregard the restrictive language of subsection (b) (2) which explicitly limits the government’s right to bring independent actions to situations in which the injured individual has failed to sue for a six month period. Indeed, under the present holding the entire subsection (b) (2) becomes pointless surplusage.
The majority believe it is fair and sensible to afford the government a remedy by way of a separate action in the present situation even though a private suit was filed promptly and the government failed to intervene. With this conclusion I have no quarrel. However, Congress specified the remedies it created in a way that excludes an independent action by the United States in this situation. Therefore, I think it is not within judicial competence to grant such a remedy, however desirable that course of action may seem.
In my judgment, the district court acted properly in denying the government a remedy. I would affirm that decision.
. The text of section 2651 is set out in the majority opinion.

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