Bruce v. Azar

389 F. Supp. 3d 716
CourtDistrict Court, N.D. California
DecidedJune 18, 2019
DocketCase No. 18-cv-05022-HSG
StatusPublished
Cited by6 cases

This text of 389 F. Supp. 3d 716 (Bruce v. Azar) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bruce v. Azar, 389 F. Supp. 3d 716 (N.D. Cal. 2019).

Opinion

HAYWOOD S. GILLIAM, JR., United States District Judge

Pending before the Court are three motions to dismiss, filed separately by Defendant California Physicians' Service d/b/a Blue Shield of California ("Blue Shield"), Dkt. No. 36; Defendant Envision Insurance Company ("Envision"), Dkt. No. 40; and Defendant Alex M. Azar II, Secretary of the United States Department of Health and Human Services ("DHHS"), Dkt. No. 39. DHHS also filed a motion to file the administrative record under seal, Dkt. No. 64, and Plaintiff Steven Bruce filed two motions to supplement the administrative record, Dkt. Nos. 24, 70. For the reasons articulated below, the Court GRANTS the motions to dismiss without leave to amend. The Court also GRANTS DHHS's motion to file the administrative record under seal, and DENIES Plaintiff's motions to supplement the administrative record.

I. BACKGROUND

Plaintiff brought this action against Defendants on August 16, 2018, seeking judicial review of the final decision by the Medicare Appeals Council ("MAC") denying Plaintiff coverage for the drug Serostim. Dkt. No. 1. Plaintiff is a Medicare beneficiary enrolled in the Part D prescription drug plan, administered by Envision in 2016 and Blue Shield in 2017. Dkt. No. 19 ("FAC") ¶¶ 1, 11, 23. In early 2016, Plaintiff was diagnosed with lipodystrophy, an auto-immune disease, and wasting syndrome. Id. ¶ 12. To treat his conditions, his primary care physician prescribed the drug Serostim. Id. ¶ 13. Both Envision and Blue Shield denied coverage for Serostim in 2016 and 2017, respectively, because Serostim was not prescribed to Plaintiff for a use approved by the Food and Drug Administration ("FDA") or supported by a Medicare-approved drug compendium. Id. ¶¶ 14, 24.

Plaintiff appealed both Envision and Blue Shield's denials of coverage. Id. ¶¶ 15-21, 25-30. The appeals went through timely reconsideration requests with the Independent Review Entity and hearings in front of Administrative Law Judges ("ALJs") Myles and Gulin. Id. Both ALJs denied coverage, and Plaintiff appealed those decisions to the MAC. Id. ¶¶ 17-21, 27-30. The MAC related and consolidated both appeals and issued a final decision on July 12, 2018, denying coverage of Serostim. Id. ¶ 30.

Plaintiff now brings this action against his insurers, Blue Shield and Envision, and DHHS, to "appeal a final decision of the DHHS that denied coverage for Serostim." Id. ¶ 8. In the FAC, Plaintiff alleges the following four claims against Defendants:

*720(1) "Defendants' decisions denying Plaintiff's claim for Medicare coverage of Serostim is [sic] not supported by substantial evidence and is [sic] incorrect as a matter of law," id. ¶ 35; (2) Defendants violated Plaintiff's due process rights "by refusing to provide coverage," id. ¶¶ 36-41; (3) Defendants, "[b]y providing coverage for Serostim only to individuals who have HIV," denied Plaintiff benefits in violation of Section 504 of the Rehabilitation Act of 1973, id. ¶¶ 42-51; and (4) Defendants Envision and Blue Shield, in refusing to provide coverage, discriminated against Plaintiff due to "his HIV-negative status," in violation of Title III of the Americans with Disabilities Act, id. ¶¶ 52-55.1 Plaintiff requests that the Court reverse the decision of the agency and award Plaintiff benefits, along with any out-of-pocket costs and attorneys' fees and expenses. Id. , Prayer for Relief.

II. MOTIONS TO DISMISS

Defendants Envision and Blue Shield move to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Dkt. Nos. 36, 40. Specifically, Envision and Blue Shield assert that they are not the proper defendants in this action, and even if they are, Plaintiff has not alleged sufficient facts to state a claim upon which relief can be granted. Id. DHHS moves to dismiss Plaintiff's second and third causes of action for lack of subject matter jurisdiction under Rule 12(b)(1), and, alternatively, for failure to state a claim under Rule 12(b)(6). Dkt. No. 39.

A. Legal Standards

i. Rule 12(b)(1)

A defendant may move for dismissal on grounds that the court lacks subject matter jurisdiction over the action. Fed. R. Civ. P. 12(b)(1). Federal district courts are courts of limited jurisdiction, and "[n]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (quotations omitted). It is the plaintiff's burden to establish subject matter jurisdiction. See Ass'n of Am. Med. Colls. v. U.S. , 217 F.3d 770, 778-79 (9th Cir. 2000) ; Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 376-78, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). "A Rule 12(b)(1) jurisdictional attack may be facial or factual." Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. Lee , 227 F.3d 1214, 1242 (9th Cir. 2000) ). A facial attack "asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Id. A factual attack "disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id.

ii. Rule 12(b)(6)

Federal Rule of Civil Procedure

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Bluebook (online)
389 F. Supp. 3d 716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bruce-v-azar-cand-2019.