Filed: Oct. 15, 2021
Latest Update: Oct. 16, 2021
USCA11 Case: 21-11529 Date Filed: 10/15/2021 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11529
Non-Argument Calendar
____________________
JORG BOBER,
Dr.,
FIRST COAST PODIATRIC SURGERY
AND WOUND CARE, LLC,
Plaintiffs-Appellants,
versus
SAFE GUARD SERVICES, LLC,
Defendant-Appellee.
USCA11 Case: 21-11529 Date Filed: 10/15/2021 Page: 2 of 4
2 Opinion of the Court 21-11529
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:19-cv-01093-BJD-PDB
____________________
Before BRANCH, LUCK, and BRASHER, Circuit Judges.
PER CURIAM:
The question in this appeal is whether a medical practice’s
lawsuit against a federal contractor arises under the Medicare Act.
See 42 U.S.C. § 405(h). The Centers for Medicare and Medicaid
(CMS), the federal agency that runs Medicare, contracted Safe
Guard Services, LLC, to audit Dr. Jorg Bober’s podiatry practice for
potential fraud. Bober and his practice sued Safe Guard for its con-
duct during that audit, including its decision to suspend Medicare
reimbursements and its treatment of Bober’s appeal of that deci-
sion. Specifically, Bober brought five causes of action: (i) tortious
interference with business relationships; (ii) defamation; (iii) negli-
gence; (iv) negligent hiring, retention, training, and supervision;
and (v) violations of Florida’s Deceptive and Unfair Trade Practices
Act.
Under 42 U.S.C. § 405(h), the courts are stripped of subject
matter jurisdiction over claims “arising under” the Medicare Act.
Dial v. Healthspring of Ala., Inc., 541 F.3d 1044 (11th Cir. 2008).
Instead, claimants must exhaust administrative remedies before
USCA11 Case: 21-11529 Date Filed: 10/15/2021 Page: 3 of 4
21-11529 Opinion of the Court 3
seeking judicial review.
Id. (citing Heckler v. Ringer,
466 U.S. 602,
614 (1984)). The district court dismissed Bober’s claims without
prejudice under the Medicare Act because Bober did not exhaust
available administrative remedies before seeking relief in federal
court. 42 U.S.C. § 405(g).
We agree that Bober’s claims arise under the Medicare Act
and, because he did not exhaust administrative remedies, we affirm
the district court. We review a district court’s dismissal for lack of
jurisdiction de novo. Miccosukee Tribe of Indians v. U.S., EPA, 105
F.3d 599, 602 (11th Cir. 1997). We must construe the “arising un-
der” language broadly. Heckler,
466 U.S. at 615. A claim arises un-
der the Medicare Act when it is “inextricably intertwined” with the
Medicare Act or where “both the standing and the substantive basis
for presentation” is the Medicare Act.
Id. at 615, 624. Accordingly,
“[a] claim may arise under the Medicare Act even though, as
pleaded, it also arises under some other law.” Midland Psychiatric
Assocs., Inc. v. United States,
145 F.3d 1000, 1004 (8th Cir. 1998)
(citing Weinberger v. Salfi,
422 U.S. 749, 760-61 (1975)).
Bober argues that his claims “are wholly independent of ei-
ther reimbursements or eligibility,” and thus do not arise under the
Act. We disagree. As the district court explained, Bober’s claims
arise under the Medicare Act because “[b]ut for the Medicare Act,
[Safe Guard] would not have performed the investigatory functions
complained of.” Bober’s claims are based entirely on the work that
Safe Guard performed on behalf of CMS—auditing past Medicare
payments, suspending future payments, addressing Bober’s appeal
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4 Opinion of the Court 21-11529
of the suspension, and the like. Accordingly, we agree with the dis-
trict court that Bober’s claims arise under the Medicare Act and
that he was required to administratively exhaust his claims before
seeking judicial relief. Heckler, 466 U.S. at 615. Because he did not
administratively exhaust his claims, the district court correctly dis-
missed his complaint for lack of subject matter jurisdiction.
AFFIRMED.
