                    Case: 12-11883         Date Filed: 01/24/2013   Page: 1 of 5

                                                                        [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-11883
                                        Non-Argument Calendar
                                      ________________________

                             D.C. Docket No. 2:08-cv-00847-JES-DNF


PAUL A. ACQUISTO,

                                                                           Plaintiff-Appellant,

                                                 versus

SECURE HORIZONS,
by United Healthcare Insurance Company,
SECRETARY, US DEPARTMENT OF HEALTH
AND HUMAN SERVICES,

llllllllllllllllllllllllllllllllllllllll                               Defendants-Appellees,

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Florida
                                 ________________________
                                      (January 24, 2013)

Before WILSON, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
                Case: 12-11883       Date Filed: 01/24/2013       Page: 2 of 5

       Paul A. Acquisto, proceeding pro se, appeals the district court’s dismissal of

his claims against Secure Horizons by United Healthcare Insurance Company

(UHIC) stemming from alleged breaches of a contract for Medicare coverage. On

appeal, Acquisto argues the district court improperly dismissed (1) Counts I- IV of

his complaint for lack of subject matter jurisdiction, and (2) Count VII of his

complaint on the basis that the Medicare administrative remedy process did not

violate his due process rights.1 After review, we affirm the district court’s

dismissal of Acquisto’s claims.2

                                               I.

       A federal district court does not have subject matter jurisdiction over any

claim arising under the Medicare Act until a claimant has first gone through the

Department of Health and Human Services’ (DHHS) administrative appeals

process. Cochran v. U.S. Health Care Fin. Admin., 291 F.3d 775, 778-79 (11th

       1
          Acquisto’s initial brief does not address Counts V or VI. He has therefore abandoned
any arguments with regard to these claims on appeal. See Irwin v. Hawk, 40 F.3d 347, 347 n.1
(11th Cir. 1994).
       2
           We review de novo a district court’s dismissal for lack of subject matter jurisdiction
under Rule 12(b)(1), see McElmurray v. Consol. Gov’t of Augusta-Richmond Cnty., 501 F.3d
1244, 1250 (11th Cir. 2007), as well as a district court’s dismissal for failure to state a claim
under Rule 12(b)(6), Catron v. City of St. Petersburg, 658 F.3d 1260, 1264 (11th Cir. 2011).
“[W]e may affirm the district court’s judgment on any ground that appears in the record.”
Lanfear v. Home Depot, Inc., 679 F.3d 1267, 1275 (11th Cir. 2012) (quotation marks omitted).
“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and
will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998).

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Cir. 2002). In addition to demonstrating exhaustion of administrative remedies, a

claimant must establish his claim meets the amount in controversy requirement.

42 U.S.C. § 1395w-22(g)(5). Review by the DHHS Secretary is not available for a

claim with an amount in controversy less than $100, and judicial review is not

available for a claim with an amount in controversy less than $1000. 42 U.S.C.

§§ 1395ff(b)(1)(E)(i), 1395w-22(g)(5).

      The only damage Acquisto alleged in his complaint was a five dollar co-

payment he made to LabCorp for lab services, which he was later reimbursed for.

Even if we were to calculate the amount in controversy as the amount of

Acquisto’s premium payments, he would still not meet the $1,000 jurisdictional

requirement. UHIC waived all relevant co-payments related to services performed

prior to February 27, 2007, so there were no breaches of contract or damages

suffered by Acquisto prior to that date. The remaining premium payments, at his

monthly rate of $93.50, would amount to less than the statutory requirement. See

42 U.S.C. §§ 1395ff(b)(1)(E)(i) and 1395w-22(g)(5). Moreover, although

Acquisto contends his claims do not arise under the Medicare Act, each of his

breach-related claims is a claim for benefits, or inextricably intertwined with a

claim for benefits, and thus subject to the jurisdictional limits of the Medicare Act.

See Heckler v. Ringer, 104 S. Ct. 2013, 2021-22 (1984). Because Acquisto has

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not met the amount in controversy requirement, the district court properly

dismissed Counts I-IV for lack of subject matter jurisdiction.

                                          II.

      Acquisto argues he has a constitutionally protected liberty or property

interest in appealing UHIC’s determination with regard to his grievances. There is

no such constitutionally protected property interest. See Cook v. Wiley, 208 F.3d

1314, 1322 (11th Cir. 2000) (noting the initial question in determining whether a

plaintiff has sufficiently alleged Due Process Clause violation is whether the

plaintiff has alleged a deprivation of a constitutionally protected liberty or

property interest). To the contrary, whereas the regulations contemplate a right to

appeal organization determinations, no such right of appeal has been conferred for

grievances. See 42 C.F.R. §§ 422.561, 422.562(b)(4), and 422.564(b). Acquisto

further challenges the regulations as unconstitutionally vague, but the regulations

clearly define a grievance such that men of common intelligence would not be

required to guess at its meaning. See Broadrick v. Oklahoma, 93 S. Ct. 2908,

2913 (1973); 42 C.F.R. § 422.561. Because Acquisto’s claims for the alleged

breaches of contract did not meet the requisite amount in controversy and the

Medicare Act’s regulations did not deprive him of a constitutionally protected




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liberty or property interest, the district court properly dismissed his complaint

under Rule 12.3

       AFFIRMED.




       3
         Because the district court’s dismissal of Acquisto’s claims was appropriate, we need not
discuss the issue of class certification. See Rink v. Cheminova, Inc., 400 F.3d 1286, 1297 (11th
Cir. 2005).

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