no present controversy when plaintiff sought administrative appeals process that already existed
How later courts described this case
- no present controversy when plaintiff sought administrative appeals process that already existed
Written by the judges who cited it.
The opinion
Case 8:21-cv-00815-JLS-DFM Document 36 Filed 04/28/22 Page1of3 Page ID #:1002
JS-6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL
Case No.: 8:21-cv-00815-JLS-DFM Date: April 28, 2022
Title: Naiqing Nancy Song v. Department of Health and Human Services et al
Present: HONORABLE JOSEPHINE L. STATON, UNITED STATES DISTRICT JUDGE
D. Rojas N/A
Deputy Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT:
Not Present Not Present
PROCEEDINGS: (INCHAMBERS) ORDER DENYING AS MOOT
PLAINTIFF’S ACTION FOR ADMINISTRATIVE RECORD
REVIEW OF FINAL AGENCY DECISION (Doc. 31)
Before the Court is Plaintiffs action seeking administrative record review of a
final agency decision by the U.S. Secretary of Department of Health and Human Services
(“HHS”). Plaintiff filed an Opening Brief. (OB, Doc. 31.) Defendant opposed. (Opp.,
Doc. 32.) Plaintiff responded. (Response, Doc. 33.) And Defendant filed a Sur-Reply.
(Sur-Reply, Doc. 34.) The Court finds this matter appropriate for decision without oral
argument. See Fed. R. Civ. P. 78(b); C.D. Cal. R. 7-15. Accordingly, the hearing set for
April 29, 2022 at 10:30 a.m., is VACATED. Having considered the pleadings, the
parties’ briefs, and for the reasons stated below, the Court DISMISSES Plaintiff's action
as moot.
Plaintiff Naiqing Nancy Song (“Song”) filed this action to challenge HHS’s final
decision rendered through the Medicare Appeals Council denying her request for
preapproval of Medicare coverage for a device that provides neuromuscular electrical
stimulation. (See OB at 1-2; Opp. at 1.) During of the pendency of this action, however,
Song’s Medicare Advantage Plan, Scan Health Plan, provided her with the device she
sought through this litigation. (See Response at | (“Plan and IMR changed their position
and approved the Plaintiff's request to replace Bioness L300 by new version of Bioness
L300 GO... . [and] Plaintiff received the required the [sic] new version of Bioness L300
CIVIL MINUTES — GENERAL
Case 8:21-cv-00815-JLS-DFM Document 36 Filed 04/28/22 Page 2 of 3 Page ID #:1003
____________________________________________________________________________
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.: 8:21-cv-00815-JLS-DFM Date: April 28, 2022
Title: Naiqing Nancy Song v. Department of Health and Human Services et al
GO.”).) HHS states that it “does not seek to challenge the provision of that device
through its position in this litigation or to otherwise ‘claw back’ the device from
Plaintiff.” (Sur-Reply at 1.)
As “a prerequisite to our exercise of jurisdiction, we must satisfy ourselves that the
case is not moot.” Back v. Sebelius, 684 F.3d 929, 931 (9th Cir. 2012) (quoting Vegas
Diamond Props., LLC v. FDIC, 669 F.3d 933, 936 (9th Cir. 2012)). “To qualify as a case
fit for federal-court adjudication, an actual controversy must be extant at all stages of
review, not merely at the time the complaint is filed.” Id. (quoting Vegas Diamond
Props., 669 F.3d at 936). An action is moot if “no present controversy exists as to which
[a court] can grant effective relief.” Id. (quoting Vegas Diamond Props., 669 F.3d at
936).
If Song were to prevail in this suit, it appears that the only remedy to which she
would be entitled is Medicare coverage of the Bioness L300 Go Device. As Song
represents that she has already been provided with the device for which sues, no present
controversy exists because there is no additional relief for the court to grant. The Ninth
Circuit has previously held that when the Secretary has already provided the relief
sought, a live controversy does not exist. See Back, 684 F.3d at 932-33 (no present
controversy when plaintiff sought administrative appeals process that already existed).
Such is the case here.
Although Song also seeks “money damage [sic] of $2,202 related to this civil
complaint,” (First Amended Compl. (“FAC”), Doc. 12, at 6), Song has not cited any
authority to demonstrate that monetary damages are available in this action. Indeed, 42
U.S.C. § 1395ff and 42 C.F.R. § 422.612—the grounds for the judicial review—do not
contemplate money damages. See also 42 U.S.C. § 405(g) (only relief available is
judgment affirming, modifying, or reversing decision of Secretary). “Absent a waiver,
sovereign immunity shields the Federal Government and its agencies from suit.”
F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). “In a suit against the United States, there
cannot be a right to money damages without a waiver of sovereign immunity.” United
States v. Testan, 424 U.S. 392, 400 (1976). Song has pointed to no statutory waiver of
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CIVIL MINUTES – GENERAL 2
Case 8:21-cv-00815-JLS-DFM Document 36 Filed 04/28/22 Page 3 of 3 Page ID #:1004
____________________________________________________________________________
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.: 8:21-cv-00815-JLS-DFM Date: April 28, 2022
Title: Naiqing Nancy Song v. Department of Health and Human Services et al
sovereign immunity, and thus, the Court may only affirm, modify, or reverse the decision
of the Secretary; it has no authority to provide money damages.
Moreover, even if Song were challenging the National Coverage Determination
(“NCD”) that clarifies what circumstances and clinical conditions demonstrate medical
necessity for the benefit Song sought here—the Bioness L300 GO—this Court would
lack jurisdiction to decide that question and could provide no additional relief.
Substantive challenges to an NCD—including that the parameters and limits reflected in
the NCD are wrong in some respect—follow a separate administrative appeals process.
See 42 U.S.C. § 1395ff(f)(1)(A) (“Review of any national coverage determination shall
be subject to the following limitations: . . . Such a determination shall not be reviewed by
any administrative law judge . . . . such a determination shall be reviewed by the
Departmental Appeals Board of the Department of Health and Human Services.”); 42
C.F.R. Subpart E and 42 C.F.R. Part 422, Subpart M (Medicare Advantage Program,
Appeals). Because Song has no “decision of the Departmental Appeals” that “constitutes
a final agency action” that could be “subject to judicial review,” Song’s challenge is
limited to review of the denial of coverage. 42 U.S.C. § 1395ff(f)(1)(A). Thus, any
question related to the applicable NCD would not be properly before the Court.
As the Court concludes there is no present controversy that exists as to which the
Court can grant effective relief, this action is DISMISSED as moot.
Initials of Deputy Clerk: droj
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CIVIL MINUTES – GENERAL 3