Coleman E. JOHNSON, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
No. 04-61020
United States Court of Appeals, Fifth Circuit
Decided July 26, 2005.
Summary Calendar.
Hite Colby Lane, U.S. Attorney‘s Office, Southern District of Mississippi, Jackson, MS, Gary Kurz, U.S. Department of Health & Human Services, Atlanta, GA, for Defendant-Appellee.
Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Reviewing the record de novo, we affirm the district court‘s dismissal of Johnson‘s suit for lack of subject matter jurisdiction for the following reasons:
- Because Johnson‘s claim that the Department of Health and Human Services (DHHS) is not entitled to reimbursement from his settlement proceeds requires interpretation of the Medicare Secondary Payer statute,
42 U.S.C. § 1395y(b)(2) , the claim arises under the Medicare Act. See Heckler v. Ringer, 466 U.S. 602, 614-15, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984). He is therefore required to channel the claim through the agency process and obtain a final decision from the Secretary of DHHS before he may obtain judicial review.42 U.S.C. §§ 405(g) &(h) ; Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 10-15, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000).Section 405(g) ‘s requirement that Johnson present his claim to DHHS before raising it in court is nonwaivable and nonexcusable, and his failure to so present the claim precludes federal jurisdiction under28 U.S.C. § 1331 or§ 1346 .42 U.S.C. § 405(h) ; Ill. Council, 529 U.S. at 15, 120 S.Ct. 1084. That Johnson does not directly seek Medicare benefits does not bar application of§ 405 . Id. at 14-15, 120 S.Ct. 1084. - The Administrative Procedure Act‘s judicial review provisions do not provide a basis for jurisdiction because
§ 405(h) precludes review of Johnson‘s claim until it has gone through the agency process.5 U.S.C. § 701(a) (providing that the APA‘s judicial review provisions do not apply where another statute precludes judicial review of agency action);5 U.S.C. § 704 (providing that final agency actions are subject to judicial review); Ringer, 466 U.S. at 606, 104 S.Ct. 2013 (“[A] ‘final decision’ is rendered on a Medicare claim only after the individual claimant has pressed his claim through all designated levels of administrative review.“). - DHHS‘s past adherence to the position that the Secondary Payer statute entitled it to reimbursement for Medicare benefits paid on behalf of claimants who later obtained tort settlements does not alone persuade us that it will not apply current controlling legal principles, including Thompson v. Goetzmann, 337 F.3d 489 (5th Cir.2003), to Johnson‘s
claim. Without more, Johnson has failed to show that presentment of his claim to DHHS would be futile. See McGowin v. ManPower Int‘l, Inc., 363 F.3d 556, 559 (5th Cir.2004) (“A failure to show hostility or bias on the part of the [body responsible for] administrative review is fatal to a claim of futility.“); Nygren v. United States, 268 F.Supp.2d 1275, 1280-81 (W.D.Wash.2003) (finding that DHHS‘s past position that it was entitled to reimbursement of Medicare benefits paid on behalf of claimants who later obtained tort settlements was insufficient to show that presentation of plaintiffs’ claims that DHHS was not so entitled to the agency would be futile).
Affirmed.
Carol D. CAIN, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.
No. 04-51048
United States Court of Appeals, Fifth Circuit
Decided July 28, 2005.
Summary Calendar.
Kesha Germell Simmons, Social Security Administration Office of General Counsel, Dallas, TX, for Defendant-Appellee.
Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
The judgment of the district court is affirmed. The medical reports prior to 2002 are consistent with the finding that claimant can perform sedentary work. Her contention is based solely on answers of Doctor Bartlett on a form dated July 8, 2002. He had first examined her on May 16. His entries about her inability to sit or stand etc. are inconsistent with her own testimony, her statements at the emergency center five months earlier, and her lab reports. Those conclusions of Dr. Bartlett after apparently two contacts, based solely on what the patient told him, were rejected by the administrative judge. We find no error.
AFFIRMED.