remained within the discretion of the HHS Secretary. In 1987, Congress amended the law to implement a mandatory Medicare exclusion period of at least five years. Ma-nocchio’s exclusion period began in January 1990. Manocchio brought suit against Richard P. Kusserow, Inspector General of HHS and Dr. Louis W. Sullivan, Secretary of HHS (hereinafter referred to collectively as HHS) alleging that section 1320a-7, as applied to him, was unconstitutional because it was punitive in nature, violating both the Double Jeopardy and Ex Post Facto Clauses of the United States Constitution. HHS moved to dismiss the lawsuit on the grounds that Manocchio’s action failed to state a claim upon which relief could be granted. The district court granted HHS’s motion to 1367, 1374, 4 L.Ed.2d 1435 (1960) (<HOLDING>). We begin by noting that we exercise de novo
holding that every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed is an ex post facto law within the words and the intent of the prohibition holding that state work release regulation was not an ex post facto law holding that the supreme courts ex post facto precedents do not clearly establish that amended section 29336 violates the ex post facto clause holding that one way in which the ex post facto provision of the constitution can be violated is by applying a law that makes more burdensome the punishment of a crime after its commission holding that an ex post facto claim can only be successful if the law can be characterized as punishment in the constitutional sense