Kaiser v. Blue Cross of California (2003)

In Kaiser, we held that even a state law claim may “arise under” the Medicare Act. 347 F.3d at 1113-15.

Simply put, the type of remedy sought is not strongly probative of whether a claim falls under § 405(h).” 347 F.3d at 1112.

Do Song Uhm, 620 F.3d at 1141 (alteration in original) (quoting Kaiser, 347 F.3d at 1112).

Kaiser, 347 F.3d at 1115.

The relief PPN seeks is “compensation th[at] [it] should have received for the services it provided to Medicare beneficiaries.” Kaiser, 347 F.3d at 1114.

A later Ninth Circuit case, Kaiser v. Blue Cross of California, 347 F.3d 1107, 1114 (9th Cir. 2003), cites favorably to both Bodimetric and Midland Psychiatric for what those cases say about a claim that “arises under Medicare.” It appears that the court in Kaiser assumed that the plaintiffs were proceeding under federal-question jurisdiction (which is indisputably precluded by § 405(h)), and thus the only relevant question was whether their claims “arose” under Medicare.

Id. at 1114-15 (“Hearing most of the Kaisers’ claims would necessarily mean redeciding Blue Cross’s CHH-related Medicare decisions.”).

“The first test examines whether the claims are inextricably intertwined with a 14 [Social Security] benefits determination.” Id. (quoting Kaiser, 347 F.3d at 1112) (internal 15 quotation marks omitted) (alteration in original).

“The first test examines whether the claims are inextricably intertwined with a 8 [Social Security] benefits determination.” Id. (quoting Kaiser, 347 F.3d at 1112) (internal 9 quotation marks omitted) (alteration in original).

“The first test examines whether the claims are inextricably intertwined with a 20 [Social Security] benefits determination.” Id. (quoting Kaiser, 347 F.3d at 1112) (internal 21 quotation marks omitted) (alteration in original).

First, in Kaiser v. Blue Cross of California, owners of a Medicare provider brought statutory, constitutional, and common law claims against the federal government and fiscal intermediary Blue Cross. 347 F.3d 1107, 1110 (2003).

Kaiser, 347 F.3d at 1115.

See also 7 Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1 , 8 10 (2000) (“Section 405(h) purports to make exclusive the 9 judicial review method set forth in § 405(g)”); Do Sung Uhm v. 10 Humana, Inc., 620 F.3d 1134, 1140 (9th Cir. 2010) (§ 405(g) is 11 “the sole avenue for judicial review for claims arising under the 12 Medicare Act”) (citations omitted); Kaiser v. Blue Cross of 13 California, 347 F.3d 1107, 1111 (9th Cir. 2003) (“Jurisdiction 14 over cases…

“One category of claims that [the Ninth Circuit] and other courts 3 have found to ‘arise under’ the Act are those cases that are ‘[c]leverly concealed 4 claims for benefits.’” Do Sung Uhm., 620 F.3d at 1141 (quoting Kaiser v. Blue Cross 5 of California, 347 F.3d 1107, 1112 (9th Cir. 2003)).

Kaiser, 347 F.3d at 1112.

Ardary, 98 F.3d at 500 ; see e.g., Kaiser, 347 F.3d at 1115 (“Hearing most of the 21 [plaintiff]s’ claims would necessarily mean redeciding [defendant’s related] Medicare 22 decisions.”); Shakespeare v. SCAN Health Plan, Inc., No. 3: 17-CV-568-BTM-MDD, 2018 23 WL 340422 , at *4 (S.D.

(Dismissal Order at 12.) Further, the Court rejected Plaintiffs’ argument that their claims do not seek to recover benefits, (see Dismissal Order at 12-13 (citing Kaiser v. Blue Cross of California, 347 F.3d 1107, 1115 (9th Cir. 2003)) (“In Kaiser , the Ninth Circuit concluded that Medicare reimbursements to providers should also be considered, broadly speaking, a ‘claim for benefits,’ as the Heckler Court used that phrase.”).) And ultimately, the Court found that Plaintiffs…

See, e.g., Kaiser, 347 F.3d at 1112 (“The fact that [plaintiffs] seek damages beyond the reimbursement payments available under Medicare does not exclude the possibility that their case arises under Medicare.”).

Rescue Jets, 30 F.4th at 918–19; Kaiser v. Blue Cross 18 of Cal., 347 F.3d 1107 , 1113–15 (9th Cir. 2003). “[C]ourts have considered numerous 19 cases that do not, on their face, appear to claim specific Medicare benefits or 20 reimbursements yet have been found to arise under Medicare.” Kaiser, 347 F.3d at 1112. 21 Claims “arise under” the Medicare Act in two circumstances: “(1) where the ‘standing and 22 the substantive basis for the presentation of the claims’ is the Medi…

F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); Kaiser v. Blue Cross of California, 347 F.3d 1107, 1117 (9th Cir. 2003).

F.D.I.C. v. Meyer, 510 U.S. 471 , 475 19 (1994); Kaiser v. Blue Cross of California, 347 F.3d 1107, 1117 (9th Cir. 2003); Hodge v. Dalton, 20 107 F.3d 705, 707 (9th Cir. 1997).

See Kaiser v. 8 Blue Cross of Cal., 347 F.3d 1107 , 1111 (9th Cir. 2003) (“A motion to dismiss should not be 9 granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his 10 claim that would entitle him to relief.”). 11 The Court also concludes Plaintiff adequately alleged breach.

See 28 U.S.C. § 2680 (h); see Kaiser v. Blue Cross of 14 California, 347 F.3d 1107, 1117 (9th Cir. 2003) (“the Federal Tort Claims Act, 28 U.S.C. 15 § 2680(h), does not permit suits against the United States for defamation.”). 16 But even if Plaintiff could properly sue the Department of the Treasury, he has not shown 17 that the Department published the statements about which Plaintiff complains.

But it is 11 well-established the FTCA “does not permit suits against the United States for 12 defamation.” Kaiser v. Blue Cross of California, 347 F.3d 1107, 1117 (9th Cir. 2003).

Kaiser v. Blue Cross of Cal., 347 F.3d 1107 , 1117 (9th Cir. 2003) (“The [FTCA] does not permit suits against the United States for defamation”) (internal citations omitted); McLachlan v. Bell, 261 F.3d 908, 912 (9th Cir. 2001) (explaining that claims for defamation fall within the 28 U.S.C. § 2680 (h) exclusion).?

See 7 Kaiser v. Blue Cross of Cal., 347 F.3d 1107 , 1117 (9th Cir. 2003) (“The United States, including 8 its agencies and its employees, can be sued only to the extent that it has expressly waived its 9 sovereign immunity.”); Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 1997) (“The doctrine of 10 sovereign immunity applies to federal agencies and federal employees acting within their official 11 capacities.”); Wheeler v. Social Sec.

See generally Kaiser v. Blue Cross of California, 347 F.3d 1107, 1111 (9th Cir. 2003) (“A motion to dismiss should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.”) (quotation omitted); see also Starr v. Baca, 652 F.3d 1202, 1216-17 (9th Cir. 2011) (“The standard at this stage of the litigation is not that plaintiff's explanation must be true or even probable.

See id. § 2680(h); Kaiser v. Blue Cross of Cal., 347 F.3d 1107 , 1117 (9th Cir. 2003) (“The [FTCA] does not permit suits against the United States for defamation”) (internal citations omitted); McLachlan v. Bell, 261 F.3d 908, 912 (9th Cir. 2001) (claims for defamation claim fall within the 28 U.S.C. § 2680 (h) exclusion).

Judicial Waiver of Exhaustion 10 To have the administrative exhaustion requirement judicially waived, Plaintiffs must 11 show that their claim is (1) “collateral to a substantive claim of entitlement (collaterality)”; 12 (2) “colorable in its showing that denial of relief will cause irreparable harm 13 (irreparability)”; and (3) “one whose resolution would not serve the purposes of exhaustion 14 (futility).” Kaiser v. Blue Cross of California, 347 F.3d 1107, 1115 (9th Cir. 2…

Kaiser v. Blue Cross, 347 F.3d 1107 , 1117 (9th Cir. 2003) (“The [FTCA] does not permit suits against the United States for defamation”) (internal citations omitted); see also McLachlan v. Bell, 261 F.3d 908, 912 (9th Cir. 2001) (claims for defamation claim fall within the 28 U.S.C. § 2680 (h) exclusion).

F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); Kaiser v. Blue 18 Cross of California, 347 F.3d 1107, 1117 (9th Cir. 2003); Hodge v. Dalton, 107 F.3d 705 , 707 19 (9th Cir. 1997).

F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); 5 Kaiser v. Blue Cross of California, 347 F.3d 1107, 1117 (9th Cir. 2003); Hodge v. Dalton, 107 6 F.3d 705 , 707 (9th Cir. 1997).

F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); 8 Kaiser v. Blue Cross of California, 347 F.3d 1107, 1117 (9th Cir. 2003); Hodge v. Dalton, 107 9 F.3d 705, 707 (9th Cir. 1997).

F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); 23 Kaiser v. Blue Cross of California, 347 F.3d 1107, 1117 (9th Cir. 2003); Hodge v. Dalton, 107 24 F.3d 705, 707 (9th Cir. 1997).

F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); 9 Kaiser v. Blue Cross of California, 347 F.3d 1107, 1117 (9th Cir. 2003); Hodge v. Dalton, 107 10 F.3d 705, 707 (9th Cir. 1997).

F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); 5 Kaiser v. Blue Cross of California, 347 F.3d 1107, 1117 (9th Cir. 2003); Hodge v. Dalton, 107 6 F.3d 705 , 707 (9th Cir. 1997).

See, e.g., Kaiser v. Blue Cross of California, 347 F.3d 1107, 1117 (9th Cir. 2003) (“The United States, including its agencies and its employees, can be sued only to the extent that it has expressly waived its sovereign immunity.”).

Notably, “The United States, including its agencies and its employees, can be sued only to the extent that it has expressly waived its sovereign immunity … Absent a waiver of sovereign immunity, courts have no subject matter jurisdiction over cases against the government.” Kaiser v, Blue Cross of California, 347 F.3d 1107, 1117 (9th Cir.2003) (citations omitted).

See, e.g., Kaiser v. Blue Cross of California, 347 F.3d 1107, 1116 (9th Cir. 9 2003) (“Because the plaintiffs have not exhausted available administrative review, the 10 district court lacked jurisdiction to consider those of their claims that arise under Medicare, 11 and dismissal on those claims is affirmed.”). 12 Moses cites the “Patient Rights Act” as allowing him to commence an action 13 without exhausting administrative remedies.

Instead, the Court explained that “whether or not plaintiffs seek reimbursement of benefits is not ‘strongly probative’ of whether a claim ‘arises under’ the Medicare Act.” Id. (quoting Kaiser, 347 F.3d at 1112); see also Roberts v. United Healthcare Services, Inc., 2 Cal. App. 5th 132, 150 (2016) (“In assessing whether a claim is subject to exhaustion, courts look not only to how the plaintiff has styled his claim, but also to its substance.”).

F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); Kaiser v. Blue Cross 6 of California, 347 F.3d 1107, 1117 (9th Cir. 2003); Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 7 1997).

F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); 25 Kaiser v. Blue Cross of California, 347 F.3d 1107, 1117 (9th Cir. 2003); Hodge v. Dalton, 107 26 F.3d 705, 707 (9th Cir. 1997).

F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); 10 Kaiser v. Blue Cross of California, 347 F.3d 1107, 1117 (9th Cir. 2003); Hodge v. Dalton, 107 11 F.3d 705, 707 (9th Cir. 1997).

F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); 19 Kaiser v. Blue Cross of California, 347 F.3d 1107, 1117 (9th Cir. 2003); Hodge v. Dalton, 107 20 F.3d 705, 707 (9th Cir. 1997).

See 42 U.S.C. § 14 1395w–22(g)(5) (the Medicare C enrollee may seek judicial review pursuant to 42 U.S.C. § 15 405(g) of the Social Security Act when the amount in controversy meets a certain minimum); Do 16 Sung Uhm v. Humana, Inc., 620 F.3d 1134, 1140-41 (9th Cir. 2010); Kaiser v. Blue Cross of 17 California, 347 F.3d 1107, 1111 (9th Cir. 2003) (“[j]urisdiction over cases “arising under” 18 Medicare exists only under 42 U.S.C. § 405 (g)”).

Kaiser v. Blue Cross of California, 347 F.3d 1107, 1117 (9th Cir. 2003).

Kaiser v. Blue Cross of California, 347 F.3d 1107, 1117 (9th Cir.2003).

See Kaiser v. Blue Cross, 6 347 F.3d 1107 , 1117 (9th Cir. 2003); Smith v. Comm’r of Soc.

See Kaiser v. Blue Cross, 347 F.3d 1107 , 1117 (9th Cir. 2003) (noting that there has been 2 no waiver of sovereign immunity under Bivens); Holloman v. Watt, 708 F.2d 1399, 1401-02 (9th 3 Cir. 1983) (per curiam) (holding that a Bivens claim may be maintained only against federal 4 employees in their individual rather than official capacities).

See Kaiser 26 v. Blue Cross of Cal., 347 F.3d 1107 , 1114 (9th Cir. 2003) (finding that claims dealing with 27 the “appropriateness of [a defendant’s] decisions with respect to the compensation [a 28 1 provider] should have received for the services it provided to Medicare beneficiaries” are 2 “inextricably intertwined” with claims for Medicare benefits). 3 Furthermore, Section 405(g) “permits an individual to file suit in federal court ‘after 4 any final decision of the Sec…