Bumb v. Hospital Service of Southern California

Ninth Circuit

Bumb v. Hospital Service of Southern California

440 F.2d 1077

CourtCourt of Appeals for the Ninth Circuit

DecidedApril 5, 1971

DocketNo. 24606

StatusPublished

This text of 440 F.2d 1077 (Bumb v. Hospital Service of Southern California) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bumb v. Hospital Service of Southern California, 440 F.2d 1077 (9th Cir. 1971).

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Opinion

PER CURIAM:

The Debtor provided services under the national medicare program. It sought recovery of some $60,000 which it alleged to be a remaining obligation for those services. The Secretary and its local agent for the administering of the medicare program, the appellees, rejected the claim upon their determination that the Debtor had already been overpaid. The Debtor’s Receiver then sought recovery in the District Court.

The District Court entered judgment for the appellees, holding that judicial review of the administrative determination was precluded by 42 U.S.C. § 1395ff and 42 U.S.C. § 405(h). The correctness of this ruling, vel non, is not clear. See Aquavella v. Richardson, 437 F.2d 397 (2d Cir. 1971). Cf. Filice v. Celebrezze, 319 F.2d 443 (9th Cir. 1963).

In their original brief in this court, the appellees suggested, without discussion, that the Receiver had instituted suit in the District Court without having first exhausted available administrative remedies. We called for supplemental briefs, requesting the parties to submit their views relating to this suggestion. Such supplemental briefs have now been received, and the appellees positively represent that there were administrative remedies available to the appellant which were not pursued before the appellant instituted suit in the court below. At the same time, the appellees recite that the exhaustion issue was not explored by the parties in the District Court and not resolved therein. Regardless of the ultimate resolution of the question of whether or not any judicial review whatsoever is available to the appellant, we think it clear that the filing of the suit in the District Court was premature if, in fact, there were remaining available administrative avenues through which the appellant might have gained relief without resorting to the courts.

Accordingly, the cause is remanded to the District Court for reconsideration, determining, at the outset, if the suit should be dismissed for appellant’s failure to exhaust all available administrative remedies.

So ordered.

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PER CURIAM:

The Debtor provided services under the national medicare program. It sought recovery of some $60,000 which it alleged to be a remaining obligation for those services. The Secretary and its local agent for the administering of the medicare program, the appellees, rejected the claim upon their determination that the Debtor had already been overpaid. The Debtor’s Receiver then sought recovery in the District Court.

The District Court entered judgment for the appellees, holding that judicial review of the administrative determination was precluded by 42 U.S.C. § 1395ff and 42 U.S.C. § 405(h). The correctness of this ruling, vel non, is not clear. See Aquavella v. Richardson, 437 F.2d 397 (2d Cir. 1971). Cf. Filice v. Celebrezze, 319 F.2d 443 (9th Cir. 1963).

In their original brief in this court, the appellees suggested, without discussion, that the Receiver had instituted suit in the District Court without having first exhausted available administrative remedies. We called for supplemental briefs, requesting the parties to submit their views relating to this suggestion. Such supplemental briefs have now been received, and the appellees positively represent that there were administrative remedies available to the appellant which were not pursued before the appellant instituted suit in the court below. At the same time, the appellees recite that the exhaustion issue was not explored by the parties in the District Court and not resolved therein. Regardless of the ultimate resolution of the question of whether or not any judicial review whatsoever is available to the appellant, we think it clear that the filing of the suit in the District Court was premature if, in fact, there were remaining available administrative avenues through which the appellant might have gained relief without resorting to the courts.

Accordingly, the cause is remanded to the District Court for reconsideration, determining, at the outset, if the suit should be dismissed for appellant’s failure to exhaust all available administrative remedies.

So ordered.

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440 F.2d 1077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bumb-v-hospital-service-of-southern-california-ca9-1971.

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