                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                                                            F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                                                                              July 26, 2005
                              FOR THE FIFTH CIRCUIT                     Charles R. Fulbruge III
                                                                                Clerk


                                    No. 04-61020
                                  Summary Calendar



      COLEMAN E. JOHNSON,

                                                     Plaintiff-Appellant,

                                        versus

      UNITED STATES DEPARTMENT OF
      HEALTH AND HUMAN SERVICES,

                                                     Defendant-Appellee.


                   Appeal from the United States District Court for
                        the Southern District of Mississippi
                          (USDC No. 3:03-CV-354-WSU)
          _________________________________________________________


Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

      Reviewing the record de novo, we affirm the district court’s dismissal of

Johnson’s suit for lack of subject matter jurisdiction for the following reasons:



      *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
1.   Because Johnson’s claim that the Department of Health and Human

     Services (DHHS) is not entitled to reimbursement from his settlement

     proceeds requires interpretation of the Medicare Secondary Payer

     statute, 42 U.S.C. § 1395y(b)(2), the claim arises under the Medicare

     Act. See Heckler v. Ringer, 466 U.S. 602, 614-15 (1984). He is

     therefore required to channel the claim through the agency process and

     obtain a final decision from the Secretary of DHHS before he may

     obtain judicial review. 42 U.S.C. §§ 405(g) & (h); Shalala v. Ill.

     Council on Long Term Care, Inc., 529 U.S. 1, 10-15 (2000). Section

     405(g)’s requirement that Johnson present his claim to DHHS before

     raising it in court is nonwaivable and nonexcusable, and his failure to

     so present the claim precludes federal jurisdiction under 28 U.S.C. §

     1331 or § 1346. 42 U.S.C. § 405(h); Ill. Council, 529 U.S. at 15.

     That Johnson does not directly seek Medicare benefits does not bar

     application of § 405. Id. at 14-15.

2.   The Administrative Procedure Act’s judicial review provisions do not

     provide a basis for jurisdiction because § 405(h) precludes review of

     Johnson’s claim until it has gone through the agency process. 5 U.S.C.

     § 701(a) (providing that the APA’s judicial review provisions do not

                                  2
     apply where another statute precludes judicial review of agency

     action); 5 U.S.C. § 704 (providing that final agency actions are subject

     to judicial review); Ringer, 466 U.S. at 606 (“[A] ‘final decision’ is

     rendered on a Medicare claim only after the individual claimant has

     pressed his claim through all designated levels of administrative

     review.”).

3.   DHHS’s past adherence to the position that the Secondary Payer

     statute entitled it to reimbursement for Medicare benefits paid on

     behalf of claimants who later obtained tort settlements does not alone

     persuade us that it will not apply current controlling legal principles,

     including Thompson v. Goetzmann, 337 F.3d 489 (5th Cir. 2003), to

     Johnson’s claim. Without more, Johnson has failed to show that

     presentment of his claim to DHHS would be futile. See McGowin v.

     ManPower Int’l, Inc., 363 F.3d 556, 559 (5th Cir. 2004) (“A failure to

     show hostility or bias on the part of the [body responsible for]

     administrative review is fatal to a claim of futility.”); Nygren v. United

     States, 268 F. Supp. 2d 1275,1280-81 (W.D. Wash. 2003) (finding that

     DHHS’s past position that it was entitled to reimbursement of

     Medicare benefits paid on behalf of claimants who later obtained tort

                                   3
            settlements was insufficient to show that presentation of plaintiffs’

            claims that DHHS was not so entitled to the agency would be futile).

Affirmed.




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