                                                                          FILED
                           NOT FOR PUBLICATION                            OCT 18 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MARCO GARCIA,                                   No. 12-55057

              Plaintiff - Appellant,            D.C. No. 2:10-cv-08820-PA-RZ

  v.
                                                MEMORANDUM*
U.S. SECRETARY OF HEALTH &
HUMAN SERVICES,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    Percy Anderson, District Judge, Presiding

                           Submitted October 10, 2013**
                               Pasadena, California

Before: PAEZ and HURWITZ, Circuit Judges, and ERICKSON, Chief District
Judge.***




        *
             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).
        ***
             The Honorable Ralph R. Erickson, Chief District Judge for the U.S.
District Court for the District of North Dakota, sitting by designation.
      Marco Garcia appeals a district court judgment upholding a Medicare

recoupment determination by the Secretary of Health and Human Services. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

      1. Substantial evidence supports the Secretary’s conclusion that Garcia was a

Medicare “provider.” Garcia applied for and obtained a six-digit Medicare billing

Provider Identification Number, bills were processed under this PIN, and Medicare

payment checks were made out in Garcia’s name.

      2. Substantial evidence also supports the Secretary’s conclusion that Garcia is

not entitled to a liability waiver. See 42 U.S.C. § 1395pp(a). The Secretary also

reasonably found that Garcia did not act “without fault.”          See 42 U.S.C. §

1395gg(b)(1).

      3. Garcia waived any argument that the Secretary denied him due process by

not raising it below. Malhiot v. S. Cal. Retail Clerks Union, 735 F.2d 1133, 1137 (9th

Cir. 1984).

      AFFIRMED.




                                          2
