Alberto Poggio v. United States Office of Personnel Management

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 16, 2024
• Docket: 23-55685
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 16 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALBERTO VINCENT POGGIO, No. 23-55685

Plaintiff-Appellant, D.C. No. 8:20-cv-02115-CJC-ADS v.

UNITED STATES OFFICE OF MEMORANDUM* PERSONNEL MANAGEMENT,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Submitted October 11, 2024** Pasadena, California

Before: PAEZ, NGUYEN, and HURWITZ, Circuit Judges.

Alberto Poggio appeals the district court’s denial of his motion to enforce

the court’s order and final judgment against the United States Office of Personnel

Management (“OPM”) in a suit brought under the Administrative Procedure Act

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). (“APA”), 5 U.S.C. § 701 et. seq. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

Poggio—an enrollee in the Blue Cross Blue Shield Service Benefit Plan

under the Federal Employees Health Benefits Act—contracted with Jet Rescue for

emergency air transportation to the United States while abroad. Poggio paid a

$90,000 retainer, which Jet Rescue agreed to accept as full payment if the full

billed charges could not be recovered from Poggio’s insurer. After Blue Cross

denied Poggio’s reimbursement claim in full, the district court held that he was

entitled to reimbursement and entered a judgment ordering OPM to determine the

appropriate amount. Pursuant to that order, OPM directed Blue Cross to reprocess

Poggio’s claim, and the carrier determined he was entitled to a $89,850

reimbursement.1

Poggio then filed the motion to enforce the prior judgment. The district

court denied the motion, finding that Poggio had failed to exhaust administrative

remedies. A plaintiff must “exhaust available administrative remedies before

bringing their grievances to federal court” under the APA. Idaho Sporting Cong.,

Inc. v. Rittenhouse, 305 F.3d 957, 965 (9th Cir. 2002) (citing 5 U.S.C. § 704).

That ruling was correct. OPM regulations require individuals to “exhaust both the

1 The $89,850 amount was calculated from the $90,000 retainer minus Poggio’s $150 copayment.

2 carrier and OPM review processes . . . before seeking judicial review of the denied

claim.” 5 C.F.R. § 890.105(a)(1) (emphasis added); see also Botsford v. Blue

Cross & Blue Shield of Mont., Inc., 314 F.3d 390, 397 (9th Cir. 2002).

Poggio argues that he was not required to exhaust administrative remedies

because he simply “sought relief . . . for the noncompliance with the order and

final judgment.” Poggio’s argument is misplaced. The district court never ordered

OPM to approve a claim for a certain sum. Instead, it ordered OPM to determine

“the amount that [Poggio] should be reimbursed for his claim in a manner

consistent with the Plan and all applicable statutes and regulations.” Therefore, to

the extent Poggio disagreed with the reimbursement amount offered by Blue Cross,

he should have appealed through the proper administrative channels, which he

failed to do.

Because Poggio has failed to administratively exhaust his claims, we need

not reach any other arguments.

AFFIRMED.