Albert White, Jr., et al v. Blue Cross Blue Shield of Alabama, et al

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 8, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-14083
________________________
D.C. Docket No. 2:10-cv-00166-KOB
ALBERT T. WHITE, JR., Dr.,
MEDICAL ASSOCIATES OF WEST ALABAMA, PC,
NGAWA ANNA WHITE,
Plaintiffs – Appellants
versus
BLUE CROSS AND BLUE SHIELD OF ALABAMA,
CAHABA GOVERNMENT BENEFITS ADMINISTRATORS, LLC,
CAHABA SAFEGUARD ADMINISTRATORS, LLC,
BLUE CROSS BLUE SHIELD ASSOCIATION,
Defendants – Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(December 8, 2011)

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Before BARKETT and PRYOR, Circuit Judges, and BUCKLEW, District Judge.*
PER CURIAM:
Dr. Albert White, Medical Associates of West Alabama, P.C., and Ngawa
Anna White (collectively, “White”) appeal the district court’s dismissal of their
nine-count complaint against Blue Cross and Blue Shield of Alabama, and others
(“the Carriers”), for lack of subject matter jurisdiction. After careful review and
with the benefit of oral argument, we affirm.
In December of 1999, Ngawa Anna White sent a letter to the Alabama State
Legislature, complaining that the Carriers had acted arbitrarily and capriciously in
refusing to reimburse White and other medical providers for legitimate medical
services. Within six months of that letter, the Carriers initiated an audit of White’s
practice and determined that White had received an actual overpayment of
$89,650, with a projected overpayment of $57,975.20, for services White billed to
Medicare from January 1, 1999 through June 30, 1999. In 2004, White paid the
projected overpayment amount under protest and appealed the disputed
overpayments.
White successfully pursued his appeal through hearings before a Fair
Honorable Susan C. Bucklew, United States District Judge for the Middle District of*
Florida, sitting by designation.
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Hearing Officer in June of 2004, an Administrative Law Judge in July of 2005,
and the Medicare Appeals Council in September of 2005. Two years later, in
September of 2007, White submitted a Motion to Reopen the Hearing Decision to
the Medicare Appeals Council. In his Motion to Reopen, White alleged breach of
contract, fraud, tort of outrage, loss of consortium, violation of the constitutional
rights to equal protection and due process, and violation of civil rights. He
submitted an Amended Motion to Reopen in January of 2008, adding a claim for
RICO violations. On May 19, 2008, the Medicare Appeals Council vacated the
Administrative Law Judge’s decision regarding White’s appeal for overpayment,
but it ruled against White on his subsequently added claims for breach of contract,
fraud, tort of outrage, loss of consortium, violation of the constitutional rights to
equal protection and due process, violation of civil rights, and RICO, finding those
claims were “appropriately addressed in the Medicare appeals process.” The
Medicare Appeals Council denied White’s later request for review of those
subsequently added claims.
Instead of seeking judicial review of that decision by filing an action in
district court against the Secretary of the Department of Health and Human
Services (“HHS”), as required by 42 U.S.C. §§ 405(g) and 1395ff(b)(1)(A), White
filed this action against the Carriers. The counts in his complaint coincide with
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those raised in his Motion to Reopen before the Medicare Appeals Council, and all
counts are based on the Carriers’ 2000 audit of White’s claims for services billed
to Medicare. The Carriers moved to dismiss the complaint on the grounds that the
district court lacked subject matter jurisdiction because the claims arose under the
Medicare Act and because they were entitled to sovereign immunity. The district
court concluded that White’s claims arose under the Medicare Act, and, at the very
least, involved claims that were inextricably intertwined with claims under the
Medicare Act. In light of that conclusion, the district court determined that it
lacked subject matter jurisdiction and granted the Carriers’ motion to dismiss.
Pursuant to 42 U.S.C. § 405(h), federal courts are stripped “‘of primary
federal-question subject matter jurisdiction’ over claims that arise under that Act”;
instead, “the Act provides for an administrative hearing before the Secretary of
[HHS] . . . [and] ‘judicial review of the Secretary’s final decision’ in the form of a
civil action in federal district court against the Secretary.” Dial v. Healthspring of
Ala., Inc., 541 F.3d 1044, 1047–48 (11th Cir. 2008) (internal citations omitted)
(citing 42 U.S.C. §§ 405(g), 1395w-22(g)(5); Cochran v. U.S. Health Care Fin.
Admin., 291 F.3d 775, 779 (11th Cir. 2002)). Consequently, federal courts have
jurisdiction over only those cases that are properly appealed from a final
administrative decision, and that are filed against the Secretary of HHS. See id.
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White’s complaint alleged claims that were based on the Carriers’ 2000
audit of White’s claims for services billed to Medicare; therefore, the district court
correctly concluded that White’s claims arose under the Medicare Act. Moreover,
White did not appeal the Medicare Appeals Council’s decision, nor did he file suit
against the Secretary of HHS. Accordingly, the district court correctly determined
that it did not have subject matter jurisdiction over White’s complaint and granted
the Carriers’ motion to dismiss. The court’s dismissal of that complaint is
AFFIRMED.
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