Johnson v. US Dept Hlth & Human

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
July 26, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-61020
Summary Calendar
COLEMAN E. JOHNSON,
Plaintiff-Appellant,
versus
UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
Defendant-Appellee.
Appeal from the United States District Court for
the Southern District of Mississippi
(USDC No. 3:03-CV-354-WSU)
_________________________________________________________
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:

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1. 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 (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 (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 under 28 U.S.C. §
1331 or § 1346. 42 U.S.C. § 405(h); Ill. Council, 529 U.S. at 15.
That Johnson does not directly seek Medicare benefits does not bar
application of § 405. Id. at 14-15.
2. 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

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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 (“[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.”).
3. 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

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settlements was insufficient to show that presentation of plaintiffs’
claims that DHHS was not so entitled to the agency would be futile).
Affirmed.

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