Mitchell v. Occidental Ins., Medicare, 78-2602

• Decision Date: 05 May 1980
• Docket Number: No. 78-2602,78-2602
• Parties: Clinton H. MITCHELL and Agnes W. Mitchell, Plaintiffs-Appellants, v. OCCIDENTAL INSURANCE, MEDICARE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 28

619 F.2d 28

Clinton H. MITCHELL and Agnes W. Mitchell, Plaintiffs-Appellants, v. OCCIDENTAL INSURANCE, MEDICARE, Defendant-Appellee.

No. 78-2602.

United States Court of Appeals, Ninth Circuit.

May 5, 1980.

Rehearing Denied June 4, 1980.

Clinton H. Mitchell, Hemet, Cal., on briefs, for plaintiffs-appellants.

Stephen E. O'Neil, Los Angeles, Cal., on briefs, for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before CHOY and ALARCON, Circuit Judges, and SOLOMON, ^* District Judge.

PER CURIAM:

Clinton and Agnes Mitchell (Appellants) seek to review benefits paid under Supplemental Medical Insurance Benefits for the Aged Program (Supplemental Benefits). 42 U.S.C. §§ 1395 et seq. The district court dismissed their action for lack of subject matter jurisdiction. They appeal. We affirm.

The Mitchells filed this action in Small Claims Court, Mt. San Jacinto Judicial District, County of Riverside, California, to recover $40.00, the amount disallowed by Occidental Life Insurance Company (Occidental) acting in its capacity as a carrier for the Medicare Program. Occidental contracted with the Government to administer benefits and claims for Supplemental Benefits under the Medicare Program. Occidental determined that of $240.75 in claims submitted by the appellants only $188.75 was reasonable and allowable. The program reimburses 80 per cent of reasonable charges; the $40.00 in issue is the difference between the claims submitted and the amounts allowed.

In Kuenstler v. Occidental Life Insurance Company, 292 F.Supp. 532 (C.D.Cal.1968), a case involving the same issues, the district court in a well considered opinion held that the action was properly removed from the small claims court, that there was no statutory right to judicial review, that the United States had not waived its sovereign immunity for this kind of claim, and that the court lacked jurisdiction because it was an unconsented action against an agent of the Government.

The United States is the real party in interest because any recovery would come from the federal treasury and because Occidental acted on behalf of the Secretary of the Health, Education and Welfare. 42 C.F.R. § 405.670. Appellants have no constitutional right to sue the United States without its consent. Pine View Gardens, Inc. v. Mutual of Omaha Insurance Co., 485 F.2d 1073 (D.C.Cir.1973). They have no statutory right to judicial review unless the amount in controversy is more than one thousand dollars. 42 U.S.C. § 1395ff.

For disputed claims exceeding one hundred dollars, a claimant under Supplemental Benefits is entitled to a hearing before the carrier, 42 U.S.C. § 1395u(b)(3)(C...