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Judi Donnelly v. Kathleen Sebelius

March 30, 2012

JUDI DONNELLY, PLAINTIFF,
v.
KATHLEEN SEBELIUS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

This matter is before the Court on the defendants' motions to dismiss. For the reasons stated below, the motions will be granted.

I. BACKGROUND

The pro se plaintiff, who describes herself as "a low income person," represents that she derives her only income "from Old Age Survivors and Retirement pension from the Trust Fund established by Franklin Roosevelt and the Congress of the United States." Complaint ("Compl.") at 12.*fn1 She also states that she receives Supplemental Security Income payments and "is entitled to food stamps and Section 8 housing assistance." Id. The plaintiff alleges that she "was automatically enrolled in Part A and Part B of the Medicare program for senior citizens when she reached eligibility age in Feb[ruary] 2002" and "the Medicaid program known as Hoosier Health Care or now SHIP, [State Health Insurance Plan] when the [P]art D drug coverage came into effect."*fn2 Id. at 2. It appears that the claim being raised by the plaintiff in this case arises from a gap she experienced in her Part D coverage.

The State of Indiana, where the plaintiff resides, through the Family & Social Services Administration, had been paying for the plaintiff's Part B coverage, but according to the plaintiff that coverage ended "in the early months of 2009 without any reason or notification to [the plaintiff]." Id. at 2-3. The plaintiff learned payment for this benefit had been discontinued "when Social Security removed $96.40 from [her] Old Age and Retir[e]ment Trust payment to cover the state[']s payment to MEDICARE for [P]art B coverage." Id. at 3. Rather than pay the Part B premium herself, the plaintiff contends that she "refused to allow this 'shake down operation'" and promptly "opted out of the [P]art B coverage[,] which as well included Part D drug coverage." Id. Apparently, Indiana resumed payment of the Part B premium on the plaintiff's behalf later in 2009, and the plaintiff received "a new card from Social Security medicare advising [her that she] held Part A and Part B plans and the state of Indiana Medicaid pr[o]gram had resumed payment of the [Part] B premium . . . to cover Part B and the attached Part D Drug Plan." Id.

The plaintiff "did not have occasion to use this coverage" until September 2010, when she "scheduled two doctors [sic] appointments." Id. In October 2010, the plaintiff was admitted "to the local Bloomington Hospital" and was issued four prescriptions prior to her release. Id. She took the prescriptions to a local pharmacy; the pharmacist filled three of the prescriptions, but they "had to be paid for out of pocket as the pha[r]macist indicated [that the plaintiff] had no Part D . . . coverage." Id. Although the plaintiff was able to pay $51.49 for the first three prescriptions, she could not afford to fill the fourth prescription because it was for a non-generic drug "costing $130.00 for a bottle of 30 capsules or $3.98 per pill." Id. The plaintiff sought assistance from the drug's manufacturer, but her request was refused because the company would "only pay for a drug if the applying party has no insurance whatso[ev]er." Id. at 4.

Upon review of the 2009 edition of the Medicare Handbook, the plaintiff found a provision "titled 'Extra help for Medic[a]re Prescriptions coverage,'" under which she believed she qualified. Id. The plaintiff "dialed the medicare 800 number to find out about this program and was refer[r]ed to an advanced resolutions officer" who informed the plaintiff that she "had opteded [sic] out of the Part D coverage on December[] 7[,] 2009," and further advised that the plaintiff "was automatically entitled to 'Extra help'" under a program established in January 2010 called LINET, or Limited Income Newly Eligible Transition Program. Id. The plaintiff believed that she "was entitled to app[l]y for restitution of [her] out of pocket expense for 30 days prior to the expense, which would be September 16, 2010." Id. She also was told that she "would be automatically re-enrol[l]ed by Medicare in a Part D plan if [she] did not choose one [herself]." Id.

The plaintiff contends that even after obtaining a letter from her congressman stating that she "was entitled to receive [sic] 'extra help' from whatever program was in place," the pharmacist, Mrs. Ricker, "refused to accept the proofs" and declined to fill the fourth prescription or reimburse her for the cost of the other three prescriptions. Id. The plaintiff states that she made "[a] second and 3rd call to Medicare 800 number," but was "unsuccessful in resolving the problems" with the agents with whom she spoke. Id. These agents allegedly "tried to discourage [her] from pursuing the 'extra help' programs [and] hung up on [her] when [she] asked them the name of the Director of Medicare." Id. She then represents that she dialed "the social security 800 number" and asked the customer service representative to send her an application for the "extra help" program, only to be informed that she already had Part D coverage through the Pennsylvania Life Insurance Company, "the program chosen for the entire State of Indiana low income seniors when the Bush Drug Plan was impl[e]mented." Id. at 5. Although the plaintiff did not receive the "application for the extra help . . . [,] Medicare did send [her] the 2011 medicare handbook." Id.

Despite the efforts the plaintiff had already taken, she states she still had not received "the application for the 'extra help' and reimbursement of out of pocket expenses from either the national social security trust fund offices, or the local field office, or . . . from [her] congressman's staff." Id. at 6. She represents that she then "called the Area 10 Agency on Aging and spoke with a 'Holly,'" who sent the plaintiff "a letter dated November 3, 2010[,] informing [the plaintiff] that [Holly had] enrolled [the plaintiff] in a Part D program with some company called Well Care Classics." Id. Holly allegedly took this action "without consulting [the plaintiff] or in any other way notifying [her] that she had taken this inniciative [sic] on [the plaintiff's] behalf." Id.

The plaintiff states that she should have been automatically reenrolled in the Part D program when Indiana resumed payment of the Part B premium as well as "the attached Part D Drug Plan," id. at 3, that is, "in March or April of 2009 not in November of 2010, 17 months later," id. at 7. She believes that she was "not well served by the Federal Welfare Program adminisntering [sic] both MEDICARE, MEDICAID, & SOCIAL SECURITY TRUST FUND [and] she files this COMPLAINT" in order that "the DEFENDANTS . . . answer these charges." Id. She alleges that "[t]he Agencys [sic] and their Directors and employees are negligent with intent to harm a third party and perhaps, if polit[i]cally motivate[ed], hundreds of seniors at their mercy." Id. at 8. She brings this action in order to recover "damages for her anxiety, stress, loss, pain, and sufferign [sic] in the amount of ten thousand dollars . . . plus court costs, fees and other expenses as well as restitution of her $51.49 out of pocket expense and future disruption of drugs needed to maintain her health and safety." Id. at 7.

II. DISCUSSION

A. Dismissal Under Rule 12(b)(1) for Lack of Subject Matter Jurisdiction

Among the defendants in this action are the current and former Secretaries of Health and Human Services and Administrators of the Centers for Medicare and Medicaid Services. These federal defendants characterize the plaintiff's lawsuit as raising a negligence claim, which must be dismissed for lack of subject matter jurisdiction. See Federal Defendants' Memorandum in Support of Motion to Dismiss ("Fed. Defs.' Mem.") [Dkt. #19] at 1.

"Federal district courts are courts of limited jurisdiction," and "it is to be presumed that a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). The plaintiff therefore bears the initial burden of establishing by a preponderance of the evidence that the Court has subject matter jurisdiction over her claim. Id.; see Citizens for Responsibility and Ethics in Wash. v. U.S. Dep't of Homeland Sec., 527 F. Supp. 2d 101, 104 (D.D.C. 2007). In deciding a motion brought under Rule 12(b)(1), the Court "may consider materials outside the pleadings" and it must "accept all of the factual allegations in the complaint as true." Jerome Stevens Pharms., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (internal quotation marks and citations omitted).

Under the doctrine of sovereign immunity, the United States is immune from suit unless Congress has expressly waived the defense of sovereign immunity by statute. See United States v. Mitchell, 463 U .S. 206, 212 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction."). Consent may not be implied; it must be "unequivocally expressed." United States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992). A waiver of immunity is strictly construed in favor of the government, Orff v. United States, 545 U.S. 596, 601-02 (2005), and the United States' consent to be sued establishes the scope of the Court's jurisdiction, see United States v. Sherwood, 312 U.S. 584, 586 (1941). "Absent a waiver, sovereign immunity shields the Federal Government . . . from suit." Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). "A plaintiff must overcome the defense of sovereign immunity in order to establish the jurisdiction necessary to survive a Rule 12(b)(1) motion to dismiss." Jackson v. Bush, 448 F. Supp. 2d 198, 200 (D.D.C. 2006) (citing Tri-State Hosp. Supply Corp. v. United States, 341 F.3d 571, 575 (D.C. Cir. 2003)).

The Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346 (2010), is an example of Congress' waiver of sovereign immunity. Under the FTCA, the United States consents to suit in federal district court for certain, but not all, tort claims. See, e.g., Richards v. United States, 369 U.S. 1, 6 (1962). In order to maintain a suit under the FTCA, a plaintiff shall have "presented [her] claim to the appropriate Federal agency and [her] claim shall have been finally denied by the agency in writing and sent by certified or registered mail." 28 U.S.C. ยง 2675(a) (2010). If the agency fails "to make [a] final disposition of a claim within six months after it is filed," it "shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim." Id. Absent such ...


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