                      United States Court of Appeals
                              F OR T HE D ISTRICT OF C OLUMBIA C IRCUIT
                                         ____________


No. 11-5076                                                       September Term 2011
                                                                            1:08-cv-01715-RMC
                                                           Filed On: May 30, 2012
Brian Hall, et al.,

                Appellants

       v.

Kathleen Sebelius, Secretary of the United
States Department of Health and Human
Services, and Michael J. Astrue,
Commissioner of the Social Security
Administration,

                Appellees


       BEFORE:          Henderson* and Kavanaugh,** Circuit Judges; Ginsburg,** Senior
                        Circuit Judge


                                           ORDER

       Upon consideration of appellants’ petition for panel rehearing filed on March 22,
2012, and the response thereto, it is

       ORDERED that the petition be denied.

                                          Per Curiam


                                                               FOR THE COURT:
                                                               Mark J. Langer, Clerk

                                                      BY:      /s/
                                                               Jennifer M. Clark
                                                               Deputy Clerk

* A statement by Circuit Judge Henderson, specially concurring, is attached.

** A statement by Circuit Judge Kavanaugh, with whom Senior Circuit Judge Ginsburg
joins, concurring in the denial of rehearing, is attached.
                 United States Court of Appeals
                             F OR T HE D ISTRICT OF C OLUMBIA C IRCUIT
                                        ____________

No. 11-5076                                                      September Term 2011

       HENDERSON , Circuit Judge, specially concurring:

        My colleague concurring in the denial of panel rehearing is apparently surprised that
the “[p]laintiffs’ petition for rehearing appears to reflect some misunderstanding about our
holding in this case.” Concurrence at 3 (Kavanaugh, J.). I, in contrast, am in no way
surprised by the substance of the plaintiffs’ petition, especially its assertion that the
majority’s holding “is over an issue that was not even before the Court.” Pl.’s Pet. 1. Any
disconnect between the panel majority opinion and the plaintiffs’ petition is the
consequence of the opinion’s own avoidance of the sole issue in this case: Whether the
Social Security Administration is authorized to penalize an individual who declines
Medicare, Part A coverage by requiring him to forfeit his Social Security retirement benefits
and repay any benefits previously received. The plaintiffs pushed the issue in their opening
brief, see, e.g., Appellant’s Br. 22 (“The POMS require, subject to severe penalty for non-
compliance, what Congress made to be purely voluntary.”), and again in their reply brief,
see, e.g., Appellant’s Reply Br. 4 (“The only issue is whether ‘entitlement’ under § 426(a)
means that a person so entitled must accept Medicare, Part A, benefits as a condition of
receiving Social Security retirement benefits.”). Like a parent who yells “get in the game”
to his child picking daisies in the outfield, the plaintiffs ask the court to “get in the game”
and finally address the issue it ignored. See Pl.’s Pet. at 4-5 (“[T]he actual question placed
before this Court is whether the Social Security Administration can lawfully promulgate a
quasi–regulatory provision that penalizes individuals who seek to decline coverage under
Medicare, Part A, by requiring them to forfeit their Social Security retirement benefits.”).
While I consider the plaintiffs’ rehearing petition to be an exercise in futility and therefore
do not dissent from the denial thereof, I feel compelled to point out my concurring
colleague’s insistence on miscalling the game.




                                             Page 2
                  United States Court of Appeals
                              F OR T HE D ISTRICT OF C OLUMBIA C IRCUIT
                                         ____________

No. 11-5076                                                       September Term 2011

      KAVANAUGH , Circuit Judge, with whom Senior Circuit Judge GINSBURG joins,
concurring in the denial of panel rehearing:

       Plaintiffs’ petition for rehearing appears to reflect some misunderstanding about our
holding in this case.

       To be crystal clear, no one is forced to accept Medicare Part A benefits for
hospitalization costs. Someone who is 65 or older and has signed up for Social Security
is automatically entitled to Medicare Part A benefits. But that person is not forced to
accept those Medicare benefits.

        What really seems to be going on in this case is that plaintiffs’ private insurers are
curtailing coverage because plaintiffs have another source of coverage – namely, Medicare
Part A. Plaintiffs are not happy that their private insurers are in effect penalizing them
based on their entitlement to Medicare Part A benefits. Plaintiffs therefore want to
“disenroll” from Medicare Part A. They claim a statutory right to “disenroll” and argue that
the Department of Health and Human Services and the Social Security Administration have
improperly denied them that right.

         No matter how plaintiffs label it, however, their grievance about the private insurance
consequences of their entitlement to Medicare Part A benefits would be answered only if
(i) the private insurers did not penalize plaintiffs based on their entitlement to Medicare Part
A benefits or (ii) plaintiffs could somehow disclaim their entitlement to Medicare Part A
benefits in a manner that would satisfy the private insurers that plaintiffs are not entitled
to another source of coverage.

       We obviously cannot do anything here about the coverage practices of private
insurers. And the statute simply provides no mechanism for a person who is 65 or older
and has signed up for Social Security to disclaim his or her entitlement to Medicare Part
A benefits (or to “disenroll,” as plaintiffs put it). To reiterate, no one is forced to take
Medicare Part A benefits. But the key problem for plaintiffs is that their private insurers
apparently will not ignore the fact that plaintiffs are able to obtain Medicare Part A benefits.

        One of the consequences of the expanded social safety net fashioned by the
Federal Government is that private entities or charities sometimes adjust benefits based
on whether a recipient is otherwise entitled to government-provided benefits. We
recognize that plaintiffs are frustrated with this particular manifestation of that broader
phenomenon. But absent a constitutional or statutory violation, it is not our role to police
that allocation of government and private resources.




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