                                                                           FILED
                           NOT FOR PUBLICATION                              APR 21 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



PAUL MESSER, California Medicare                 No. 07-56622
beneficiary; DOROTHY CALABRESE,
M.D., California Medicare physician              D.C. No. CV-06-01217-CJC
provider,

             Plaintiffs - Appellants,            MEMORANDUM **

  v.

KATHLEEN SEBELIUS,* Secretary, U.S.
Department of Health and Human
Services; et al.,

             Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                    Cormac J. Carney, District Judge, Presiding

                             Submitted April 5, 2010 ***


       *
             Kathleen Sebelius is substituted for her predecessor, Michael O.
Leavitt, as Secretary of the Department of Health and Human Services, pursuant to
Fed. R. App. P. 43(c)(2).

       **
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before:      RYMER, McKEOWN, and PAEZ, Circuit Judges.

      Paul Messer and Dorothy Calabrese, M.D. appeal pro se from the district

court’s judgment dismissing their action alleging that defendants’ denial of

reimbursement claims for transfer factor therapy violated various civil and criminal

federal statutes and the Fourteenth Amendment. We have jurisdiction under 28

U.S.C. § 1291. We review de novo, Kaiser v. Blue Cross of Cal., 347 F.3d 1107,

1111 (9th Cir. 2003), and we affirm.

      The district court properly determined that it lacked subject matter

jurisdiction over the action because Messer and Calabrese failed to exhaust their

administrative remedies under the Medicare Act prior to filing the action. See 42

U.S.C. §§ 1395ff(b)(1)(A), 1395ii (incorporating 42 U.S.C. § 405(g)-(h) by

reference, and thus providing that judicial review is only available after a hearing

and the final decision of the Secretary of the Department of Health and Human

Services); Heckler v. Ringer, 466 U.S. 602, 614-16 (1984) (stating that claims arise

under the Medicare Act, and are subject to its exhaustion requirements, if they are

inextricably intertwined with claims for Medicare benefits).

      Messer and Calabrese’s remaining contentions are unpersuasive.

      AFFIRMED.




                                           2                                    07-56622
