1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RODOLFO VELASQUEZ, Case No. 24-cv-00489-AMO

8 Plaintiff,

ORDER GRANTING MOTION TO

9 v. DISMISS

10 MARTIN O’MALLEY, Re: Dkt. No. 6 Defendant. 11

12 13 Plaintiff Rodolfo Velasquez brings this lawsuit seeking review of a decision under the 14 Social Security Act. Before the Court is a motion to dismiss from Defendant Commissioner of 15 Social Security (“SSA”). Having read the papers filed by the parties and carefully considered their 16 arguments, as well as the relevant legal authority, the Court hereby GRANTS Defendant’s 17 motion, for the following reasons. 18 Plaintiff brings this action under Title 42 U.S.C. § 405(g) to address two purported issues: 19 (1) that SSA imposed a monthly payment for his Medicare Part B benefits of $330.30 rather than 20 the $173.00 Velasquez anticipated to be charged (First Amended Complaint (“FAC,” ECF 5) ¶ 5), 21 and (2) that SSA continues to excessively delay its determination on his appeal of his Medicare 22 Part B benefits (FAC ¶ 9).1 Plaintiff’s administrative appeal still has not been resolved. FAC 23 ¶¶ 11-13. 24 Claims “arising under” the Medicare Act (“the Act”) are subject to judicial review only if a 25 plaintiff first exhausts his administrative remedies. 42 U.S.C. §§ 405(g)-(h). “Section 405(g) 26

27 1 The Court accepts Plaintiffs’ allegations in the complaint as true and construes the pleadings in 1 provides ‘the only avenue for judicial review’ of a claim for benefits under the Medicare Act, and 2 failure to exhaust one’s administrative remedies deprives federal courts of subject matter 3 jurisdiction over claims arising under the Act.” Global Rescue Jets, LLC v. Kaiser Found. Health 4 Plan, Inc., 30 F.4th 905, 913 (9th Cir. 2022) (quoting Heckler v. Ringer, 466 U.S. 602, 617 5 (1984)). A court must dismiss a complaint when a claimant has not exhausted administrative 6 appeals as required to obtain a final decision. See Heckler, 466 U.S. at 618-19; Bass v. Soc. Sec. 7 Admin., 872 F.2d 832, 833 (9th Cir. 1989) (“A claimant’s failure to exhaust the procedures set 8 forth in the Social Security Act deprives the district court of jurisdiction.”). 9 Here, Velasquez claims he was improperly charged a penalty under his Medicare Part B 10 Plan. Velasquez acknowledges that he has not exhausted his administrative remedies, stating 11 several times in his complaint that SSA still has not resolved his appeal. See, e.g., FAC ¶¶ 11-13. 12 Although he appears to argue that he should not be required to follow the required administrative 13 appeal process because SSA has delayed in bringing his appeal to a resolution, it is clear that he 14 must do so. 42 U.S.C. § 405(g). Because Velasquez has not exhausted administrative remedies, 15 the Court lacks jurisdiction. 16 Velasquez’s reliance on McCarthy v. Madigan, 503 U.S. 140 (1992), to support a waiver 17 of the exhaustion requirement is unavailing. In that case, the Supreme Court held that courts 18 cannot waive a plaintiff’s failure to exhaust administrative remedies where Congress “specifically 19 mandate[d]” exhaustion as a prerequisite to judicial review. Id. at 144 (citations omitted). In 20 contrast to McCarthy, Congress here specifically required administrative exhaustion of Medicare 21 appeals before beneficiaries could seek judicial review. See 42 U.S.C. § 405(g). Thus, prior to 22 seeking a remedy in this Court, Velasquez must follow the administrative review process as 23 outlined in the Medicare Act. 24 Moreover, Plaintiff Velasquez has not alleged sufficient facts to show that he should be 25 exempt from the exhaustion requirement. Though “the exhaustion requirement may be excused if 26 three conditions are satisfied: (1) the plaintiff’s claim is wholly collateral to a claim for Medicare 27 benefits; (2) the plaintiff has made a colorable showing of irreparable harm; and (3) exhaustion 1 (9th Cir. 1992)), Velasquez’s complaint fails to allege that his claim is collateral to a claim for 2 || Medicare benefits, as he is expressly seeking to secure such benefits. See FAC §f| 19-21; Johnson, 3 2 F.3d at 921. Thus, Velasquez cannot be excused from the exhaustion requirement before 4 || proceeding with the instant suit. 5 Because Plaintiff must exhaust administrative remedies before this Court possesses 6 || jurisdiction over a case arising under the Medicare Act, Plaintiff’s complaint is dismissed for lack 7 of subject matter jurisdiction. The Court does not reach Plaintiffs claims for damages based on 8 || the Administration’s delays in processing his appeal. 9 IT IS SO ORDERED. 10 Dated: June 18, 2024 11 □□ □ 2 coh

ARACELI MARTINEZ-OLGUIN

13 United States District Judge

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