                                                                           FILED
                              NOT FOR PUBLICATION                           JUL 27 2011

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




                              FOR THE NINTH CIRCUIT



DOROTHY CALABRESE, M.D.; et al.,                   No. 10-56346

                Plaintiffs - Appellants,           D.C. No. 8:09-cv-00383-CJC-
                                                   RNB
  v.

KATHLEEN SEBELIUS, U.S.                            MEMORANDUM **
Department of Health and Human
Services, Secretary,*

                Defendant - Appellee.



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

                               Submitted July 12, 2011 ***

Before:         SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.


          *
             Kathleen Sebelius is substituted for her predecessor, Charles E.
Johnson, as Secretary of the Department of Health and Human Services under 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). Accordingly, plaintiffs’
request for oral argument is denied.
      Dorothy Calabrese, M.D., and her patients Harriet Fahl, Gene Fahl, and Paul

Messer, appeal pro se from the district court’s order dismissing their action

alleging equal protection violations based on defendant’s denial of Medicare

reimbursements for “transfer factor” therapy. We have jurisdiction under 28

U.S.C. § 1291. We review de novo, Uhm v. Humana, Inc., 620 F.3d 1134, 1139

(9th Cir. 2010), and we affirm.

      The district court properly dismissed the action because plaintiffs failed to

state an equal protection claim. See Engquist v. Or. Dep’t of Agric., 553 U.S. 591,

601-03 (2008) (addressing “class of one” equal protection claim); Weinberger v.

Salfi, 422 U.S. 749, 769-70 (1975) (addressing class-based equal protection claim).

      Plaintiffs’ remaining contentions are unpersuasive.

      AFFIRMED.




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