                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 08a0163p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                      X
                               Plaintiff-Appellant, -
 RAYMOND H. GIESSE,
                                                       -
                                                       -
                                                       -
                                                           No. 06-4497
            v.
                                                       ,
                                                        >
 SECRETARY OF THE DEPARTMENT OF HEALTH AND             -
                                                       -
                                                       -
 HUMAN SERVICES; DEPARTMENTAL APPEALS

                                                       -
 BOARD, Medicare Appeals Council; KAISER

                                                       -
 PERMANENTE HEALTH PLAN OF OHIO; MAXIMUS
                                                       -
 CENTER FOR HEALTH DISPUTE RESOLUTION;
                                                       -
 JEANNIE CHRISTIANSEN, Kaiser Permanente Health
 Plan of Ohio,                                         -
                             Defendants-Appellees. -
                                                       -
                                                      N
                       Appeal from the United States District Court
                      for the Northern District of Ohio at Cleveland.
                   No. 04-02536—Lesley Brooks Wells, District Judge.
                                 Submitted: December 6, 2007
                              Decided and Filed: April 23, 2008
                   Before: MERRITT, COLE, and GRIFFIN, Circuit Judges.
                                     _________________
                                          COUNSEL
ON BRIEF: Stephen D. Hartman, Craig R. Giesze, KERGER & ASSOCIATES, Toledo, Ohio, for
Appellant. Betty J. Konen, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, Anne
Marie Sferra, Sarah E. Hurst, BRICKER & ECKLER, Columbus, Ohio, Barbara J. Leukart, JONES
DAY, Cleveland, Ohio, Jane F. Warner, Murray K. Lenson, ULMER & BERNE, Cleveland, Ohio,
Dennis R. Fogarty, DAVIS & YOUNG, Cleveland, Ohio, for Appellees.
       GRIFFIN, J., delivered the opinion of the court. MERRITT, J. (p. 10), delivered a separate
concurring opinion. COLE, J. (pp. 11-12), delivered a separate dissenting opinion.




                                                1
No. 06-4497                 Giesse v. Sec. of Dep’t of HHS, et al.                             Page 2


                                        _________________
                                            OPINION
                                        _________________
         GRIFFIN, Circuit Judge. Plaintiff-appellant Raymond Giesse appeals the district court’s
grant of two motions to dismiss for lack of subject matter jurisdiction after he filed a suit seeking
damages subsequent to an alleged wrongful termination of medical care. Plaintiff argues that the
district court had jurisdiction over his claims because he has a vested “property interest” in the
receipt of Medicare benefits, and that the termination of these benefits, without adequate due
process, amounted to a deprivation of his constitutional rights. Because he alleges constitutional
claims, and because these claims are “wholly collateral” to his administrative claims, plaintiff
contends that his federal claims do not “arise under” the Medicare Act, and may therefore be
addressed by the district court. In the alternative, plaintiff argues that an implied right of action
exists in the Medicare context under Bivens v. Six Unknown Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971). We disagree and affirm the judgment of the district court.
                                                  I.
       Plaintiff is an Ohio resident and an enrollee in a Kaiser Medicare + Choice (“M+C”) Plan.
This plan allows private insurance companies to contract with the federal government to provide
Medicare benefits to enrollees.
       Giesse suffered a stroke on June 20, 2003, and was initially treated at MetroHealth Medical
Center, a Kaiser affiliate. His treating physician, Tandra Usharani, M.D., recommended that Giesse
undergo occupational therapy, speech therapy, and physical therapy on a daily basis to rehabilitate
the physical and mental skills lost due to the stroke.
         On July 16, 2003, Giesse was transferred to Aristocrat Berea (“Aristocrat”), a skilled nursing
facility (“SNF”). At this time, Giesse still required daily physical and occupational therapy. Eight
days later, on July 24, 2003, Aristocrat’s Director Jeannie Christiansen orally notified Giesse’s son,
an attorney residing in Chile, that Giesse’s daily SNF benefits would be terminated on July 29 or
31, 2003. Christensen also informed Giesse’s son that Giesse would receive a three-day written
notice to leave the facility. Her stated rationale for termination of SNF benefits was that Giesse had
reached a “plateau.”
         On July 28, 2003, Christiansen orally notified Giesse that he would be transferred to another
facility. Christiansen provided Giesse with a written notice of non-coverage that stated that
Medicare would not cover Giesse’s daily SNF benefits as of August 1, 2003, because he no longer
required daily physical and occupational therapy. This notice also described Giesse’s right to appeal
the decision to terminate benefits, the appeal process, and an available 72-hour expedited appeal
process. Giesse refused to sign this notice of non-coverage until his son, who exercised power of
attorney, could review the document. Giesse’s son received the above notice on July 31, 2003.
        On August 1, 2003, Dr. Ammaji Narra, plaintiff’s consulting Kaiser physician, tendered the
necessary paperwork indicating that Giesse was eligible under Medicare Part B for homebound care
with intermittent care on an outpatient basis. That same day, Giesse moved to Brookside Estates,
an assisted living center, on his own accord, financing the move by selling his house far below
market value. At Brookside Estates, he received physical, occupational, and speech therapy on an
intermittent basis.
       On September 29, 2003, Giesse filed a request for reconsideration of the termination of his
daily SNF benefits. In this request for reconsideration, Giesse requested that the decision be
rescinded as a “purely procedural matter” and asked for monetary compensation for damages
No. 06-4497                 Giesse v. Sec. of Dep’t of HHS, et al.                            Page 3


resulting from out-of-pocket disbursements to Brookside Estates, attorney’s fees, the distress sale
of his personal residence, and unspecified special damages. Giesse did not request to be readmitted
to the SNF, or otherwise seek daily nursing care. On October 16, 2003, Kaiser denied his request
for reconsideration and notified Giesse’s legal representation of the same. Kaiser further stated that
it had submitted the case to the Maximus Center for Health Dispute Resolution (“Maximus”) for an
independent, external review. Maximus, on November 17, 2003, dismissed Giesse’s case, reading
his request as a “grievance” rather than a “valid appeal for medical coverage.” Maximus further
stated that “Medicare does not permit us to make a decision about these types of complaints.”
        Giesse, on January 16, 2004, filed a request for an administrative hearing before an
Administrative Law Judge (“ALJ”). The ALJ dismissed the case on March 22, 2004, finding that
under federal regulations it had no jurisdiction to review the matter because no reconsidered decision
had been made. On May 26, 2004, Giesse appealed to the Medicare Appeals Council (“MAC”).
The MAC denied his request for review on October 25, 2004, again finding that Giesse was not
entitled to an ALJ hearing without having received an administrative determination.
        Giesse filed the instant lawsuit on December 27, 2004, in the United States District Court
for the Northern District of Ohio. On January 14, 2005, Giesse filed an Amended Complaint,
raising procedural and substantive due process claims, as well as federal constitutional tort, breach
of contract, fraud, medical malpractice, respondeat superior, intentional or reckless infliction of
emotional distress, and additional punitive and exemplary damages claims. Giesse sought review
of the ALJ’s decision, monetary damages in the amount of $42,630, compensatory damages in the
amount of $1,000,000, consequential damages in the amount of $883,237.76, punitive damages in
the amount of $3,000,000, as well as costs and attorney’s fees. In the alternative, Giesse sought
reversal of the administrative decisions and a remand for an administrative hearing with an ALJ.
Both the Secretary of Health and Human Services (“the Secretary”) and Kaiser filed motions to
dismiss the Amended Complaint for lack of subject matter jurisdiction and for failure to state a claim
upon which relief could be granted. On August 1, 2005, Giesse sought leave to file a second
amended complaint, seeking to raise a claim under the Federal Tort Claims Act (“FTCA”).
       The district court, on September 27, 2006, dismissed Giesse’s amended complaint without
prejudice for lack of subject matter jurisdiction and denied Giesse’s motion to file a second amended
complaint. This appeal followed.
                                                 II.
        This court reviews de novo the dismissal of a complaint under FED. R. CIV. P. 12(b)(1) for
lack of jurisdiction. Colonial Pipeline Co. v. Morgan, 474 F.3d 211, 217 (6th Cir. 2007). When,
however, the district court goes beyond analyzing the complaint on its face and instead delves into
the factual predicates for jurisdiction, the court reviews for clear error. Howard v. Whitbeck, 382
F.3d 633, 636 (6th Cir. 2004). Additionally, when subject matter jurisdiction is challenged, the
plaintiff has the burden of proving jurisdiction in order to survive the motion to dismiss. Madison-
Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir. 1996).
       The Secretary has created an administrative review process that allows Medicare enrollees,
such as Giesse, to challenge adverse decisions by their M+C providers. 42 U.S.C. § 1395w-22(g);
42 C.F.R. § 422.560. Aside from this administrative review process, the Medicare Act bars judicial
review of claims that “arise under” the Act. The language of section 405(h), as incorporated by 42
U.S.C. § 1395ii, reads:
       The findings and decision of the Commissioner of Social Security after a hearing
       shall be binding upon all individuals who were parties to such hearing. No findings
       of fact or decision of the Commissioner of Social Security shall be reviewed by any
No. 06-4497                  Giesse v. Sec. of Dep’t of HHS, et al.                               Page 4


        person, tribunal, or governmental agency except as herein provided. No action
        against the United States, the Commissioner of Social Security, or any other officer
        or employee thereof shall be brought under section 1331 or 1346 of Title 28 to
        recover on any claim arising under this title.
42 U.S.C. § 405(h).
        Section 405(h) “channels most, if not all, Medicare claims through this special review
system.” Shalala v. Illinois Council on Long Term Care, 529 U.S. 1, 8 (2000). Moreover, § 405(h)
definitively bars judicial review of legal challenges to the denial of Medicare benefits. As the
Supreme Court has noted:
        [The language of § 405] clearly appl[ies] in a typical Social Security or Medicare
        benefits case, where an individual seeks a monetary benefit from the agency (say, a
        disability payment, or payment for some medical procedure), the agency denies the
        benefit, and the individual challenges the lawfulness of that denial. The statute
        plainly bars § 1331 review in such a case, irrespective of whether the individual
        challenges the agency’s denial on evidentiary, rule-related, statutory, constitutional,
        or other legal grounds.
Illinois Council, 529 U.S. at 8.
         Thus, “[t]he plain language of 405(h), as incorporated by § 1395ii, precludes the federal
courts from entertaining claims based on the jurisdictional provisions of the Federal Tort Claims
Act, § 1346 of Title 28, or the statutory grant of jurisdiction over federal questions, § 1331 of Title
28, if the claims ‘arise under’ the Medicare Act.” Livingston Care Ctr., Inc. v. United States, 934
F.2d 719, 721 (6th Cir. 1991). The Supreme Court and our court have both held that a claim “arises
under” the Medicare Act if the Act provides the “‘standing and substantive basis for the presentation
of [plaintiff’s] constitutional contentions. . . .’” Id. at 721-22 (quoting Weinberger v. Salfi, 422 U.S.
749, 760-61 (1975)). We conclude that plaintiff’s claims indeed “arise under” the Medicare Act,
as he contends that the harm he suffered was the result of the “arbitrary and capricious” termination
of his medical benefits. This being the case, section 405(h) clearly prohibits judicial review of
plaintiff’s claims absent exhaustion of available administrative remedies.
       The administrative procedures utilized in addressing an enrollee’s claim against a M+C
organization depends on whether the enrollee’s challenge is classified as a “grievance” or as an
appeal from an “agency determination.” An “agency determination” is defined as:
        [A]ny determination made by an [M+C] organization with respect to any of the
        following:
        (1) Payment for temporarily out of the area renal dialysis services, emergency
        services, post-stabilization care, or urgently needed services.
        (2) Payment for any other health services furnished by a provider other than the
        [M+C] organization that the enrollee believes –
                (i) Are covered under Medicare; or
                (ii) If not covered under Medicare, should have been furnished,
                arranged for, or reimbursed by the [M+C] organization.
No. 06-4497                 Giesse v. Sec. of Dep’t of HHS, et al.                            Page 5


       (3) The [M+C] organization’s refusal to provide or pay for services, in whole or in
       part, including the type or level of services, that the enrollee believes should be
       furnished or arranged for by the [M+C] organization.
       (4) Discontinuation or reduction of a service if the enrollee believes that
       continuation of the services is medically necessary.
       (5) Failure of the [M+C] organization to approve, furnish, arrange for, or provide
       payment for health care services in a timely manner, or to provide the enrollee with
       timely notice of an adverse determination, such that a delay would adversely affect
       the health of the enrollee.
42 C.F.R. § 422.566(b).
        If an enrollee disagrees with the “agency determination” of the M+C provider, the enrollee
can request the provider to reconsider its decision. 42 U.S.C. § 1395w-22(g)(2); 42 C.F.R.
§ 422.578. A M+C organization typically has thirty days to issue a reconsidered decision, 42 C.F.R.
§ 422.590(a)(2), but if the provider refuses to provide or pay for a service the enrollee believes is
medically necessary, the enrollee may request an expedited 72-hour review. 42 C.F.R. §§ 422.584,
422.590(d). To qualify for expedited review, the enrollee or his physician must submit an oral or
written request for the expedited reconsideration to the M+C provider. 42 C.F.R. § 422.584(b)(1).
Once submitted, the M+C organization must provide expedited review if application of the standard
thirty-day review period “could seriously jeopardize the life or health of the enrollee or the
enrollee’s ability to regain maximum function.” 42 C.F.R. § 422.584(c)(2)(i).
        If the M+C does not reverse its earlier adverse decision, it must send the case to an outside
health dispute resolution agency, such as Maximus, for independent review. 42 U.S.C. § 1395w-
22(g)(4); 42 C.F.R. § 422.592. If the outside reviewing agency upholds the M+C organization’s
determination, and the amount in controversy is at least $1,000, the enrollee may request a hearing
before an ALJ. 42 U.S.C. § 1395w-22(g)(5); 42 C.F.R. § 422.600(a). If the enrollee disagrees with
the decision of the ALJ, he may request that the MAC review the case. 42 C.F.R. § 422.608. The
enrollee may then seek judicial review of the MAC’s decision, or may seek judicial review of the
ALJ’s decision if the MAC declines to review the ALJ’s decision. 42 U.S.C. § 1395w-22(g)(5); 42
C.F.R. § 422.612.
        The Medicare Act’s grant of subject matter jurisdiction only permits judicial review of “the
final decision of [the Secretary] made after a hearing.” 42 U.S.C. § 405(g). Thus, judicial review
of claims arising under the Medicare Act is available only after the Secretary renders a “final
decision” on the enrollee’s claim. Heckler v. Ringer, 466 U.S. 602, 605 (1984); Califano v. Sanders,
430 U.S. 99, 108 (1977) (citations omitted) (“This provision clearly limits judicial review to a
particular type of agency action, a final decision of the Secretary made after a hearing.”). An
enrollee receives a final decision from the Secretary after he exhausts all administrative appeals of
an adverse administrative determination. 42 U.S.C. § 1395-w-22(g); 42 C.F.R. § 422.560. If, upon
further review, the enrollee prevails, he may seek either the provision or reinstatement of medical
services, or request reimbursement for monies expended in providing those medical services.
42 C.F.R. § 422.618. An award of damages is not available.
       A grievance “is any complaint or dispute, other than one that constitutes an organizational
determination, expressing dissatisfaction with any aspect of an [M+C] organization’s or provider’s
operations, activities, or behavior, regardless of whether remedial action is requested.” 42 C.F.R.
§ 422.561. Grievances, unlike organizational determinations, do not have additional levels of review
beyond the M+C organization. 42 U.S.C. § 1395w-22(f); 42 C.F.R. §§ 422.562(b), 422.564(b). As
No. 06-4497                  Giesse v. Sec. of Dep’t of HHS, et al.                               Page 6


there are no additional levels of review beyond the M+C organization, there is no “final decision”
by the Secretary that allows for judicial review. Id.
         Applying the above framework, we hold that the district court did not err in categorizing
plaintiff’s claims as grievances, or, perhaps more accurately, we conclude that plaintiff’s claims are
not appeals from an administrative determination. The broad definition provided for “grievance”
in 42 C.F.R. § 422.561 demonstrates the grievance procedure’s function is to serve as a “catch-all”
for claims that fall outside the ambit of appeals from administrative determinations. A greivance
is defined as “any complaint or dispute, other than one that constitutes an organization
determination . . . .” 42 C.F.R. § 422.561 (emphasis added). This reading is further buttressed by
the language of 42 C.F.R. § 422.562, which sets forth the responsibilities of a Medicare
organization, here Kaiser, instructing that a grievance procedure shall be established for the purpose
of “addressing issues that do not involve organization determinations.” 42 C.F.R. § 422.562(a)(1).
As it is clear that the grievances are defined not by what they are, but rather by what they are not,
our inquiry turns to whether Giesse’s complaint meets the definition of an appeal from an
administrative determination. We conclude that it does not.
        Suits that challenge the termination of daily SNF care are appealable, but only when the
remedy sought is a reinstatement of those services. Giesse did not seek the reinstatement of daily
therapy at Aristocrat or another SNF, nor did he seek reimbursement for payments made to maintain
daily therapy at a SNF. He instead sought reimbursement of payments made to Brookside Estates,
damages resulting from the distress sale of his residence, and other special damages. Because these
remedies are unavailable forms of relief under the M+C framework, Kaiser was unable to render an
“organizational determination” concerning Giesse’s claim. An appeal is defined as the “procedures
that deal with the review of adverse organizational determinations . . . .” 42 C.F.R. § 422.561.
Giesse does not seek review of the determination itself for any substantive purpose; indeed, he
admits that he wishes Kaiser’s decision be “rescinded as a purely procedural matter” and that the
“only substantive legal remedy . . . is monetary compensation for damages . . . .”
        We, however, do not subscribe to plaintiff’s rather glib reading of the Medicare Act and its
appeal procedures. The organizational determination, from which an aggrieved plaintiff may appeal,
is not to be treated as a mere formality or as a method to bootstrap a damages claim; this is
particularly true in light of Congress’ unequivocal prohibition of suits outside of valid appeals that
seek review of adverse organizational determinations. See 42 U.S.C. § 405(h). To read it otherwise
would allow a future plaintiff who received an adverse organizational determination to purposely
not avail himself of the proper review procedures and instead proceed directly to court to seek
damages. Such a result would essentially nullify the language of section 405(h).
        We note that Kaiser, upon its rejection of plaintiff’s initial appeal, did not inform him that
his complaint was considered a grievance. Instead, Kaiser, at this early stage, appears to have
treated Giesse’s complaint as an appeal. In Kaiser’s written rejection of Giesse’s appeal, it stated
“[y]our appeal has been reviewed. Since we did not overturn our initial decision, we hereby wish
to inform you that the Plan is submitting your file for consideration to [Maximus] Center for Health
Dispute Resolution.” Moreover, Kaiser forwarded Giesse’s complaint to Maximus, a procedure that
occurs only after an administrative decision is rendered. This failure to notify Giesse of the
classification of his claim contravenes 42 C.F.R. § 422.564, which requires that “[u]pon receiving
a complaint, [a Medicare] organization must promptly determine and inform the enrollee whether
the complaint is subject to its grievance procedures or its appeal procedures.”
       This omission, however, does not mean plaintiff is entitled to judicial review. First and
foremost, plaintiff did not raise this argument either at the district court level or on appeal, and it is
therefore deemed waived. See Farmer Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d
523, 544 n.8 (6th Cir. 2002) (“It is well established that an issue not raised in a party’s briefs may
No. 06-4497                  Giesse v. Sec. of Dep’t of HHS, et al.                               Page 7


be deemed waived.”); Thaddues-X v. Blatter, 175 F.3d 378, 403 n.18 (6th Cir. 1999) (stating that
an argument not raised in the initial brief is waived). Second, we fail to see how plaintiff was
injured by this temporary oversight. In Maximus’s denial letter, plaintiff was informed that his
claim is properly categorized as a grievance. Despite this notification, plaintiff did not elect to
proceed through the established grievance framework, but rather continued to appeal the denial of
his claim through channels reserved for appeal of administrative decisions. He was also informed
of other mechanisms of redress, such as the Health Plan Quality Complaint Process and the Quality
Improvement Organization Complaint Process in Kaiser’s initial notification of discontinuation.
        Plaintiff offers two theories as to why the district court had jurisdiction over the instant suit,
notwithstanding the clear language of § 405. First, he argues that he held a “property interest” in
100 days of continuous SNF care. This property right “vested,” plaintiff claims, upon Dr.
Ushavani’s recommendation that Giesse receive such care. He further argues that once this interest
vested, the burden shifted to Kaiser to provide evidence that he no longer needed daily SNF therapy.
Plaintiff states that the subsequent deprivation of his property interest, without adequate due process,
amounted to a constitutional violation under Cleveland Board of Education v. Loudermill, 470 U.S.
532, 538 (1985). As this deprivation amounted to a constitutional violation, any claim for redress
is “wholly collateral” to a claim for Medicare benefits, and therefore does not “arise under” the
Medicare Act, sidestepping § 405(h), and permitting judicial review.
        This argument is flawed at the outset, insofar as it presupposes that plaintiff has a vested
“property right” in 100 days of post-hospital SNF nursing care. This view is apparently based on
the language of 42 U.S.C. § 1395d(a)(2)(A), which states:
        (a) Entitlement to payment for inpatient hospital services, post-hospital extended
        care services, home health services and hospice care.
        The benefits provided to an individual by the insurance program under this part shall
        consist of entitlement to have payment made on his behalf or, in the case of payments
        referred to in section 1395f(d)(2) of this title 1814(d)(2) to him (subject to the
        provisions of this part) for –
                                                 * * *
        (2)(A) post-hospital extended care services for up to 100 days during any spell of
        illness . . . .
         We have, however, interpreted this statute as stating the opposite of what plaintiff purports
it to say. Indeed, in Himmler v. Califano, 611 F.2d 137, 145 (6th Cir. 1979), we noted that “[t]he
Medicare Program . . . does not directly provide any entitlement to the medical services themselves.”
Moreover, the language of the statute only provides that a enrollee may receive up to 100 days of
post-hospital extended care. Even after a physician initially certifies that an enrollee requires SNF
care, recertification is required on the fourteenth day of such care and at every thirty days thereafter.
42 C.F.R. § 424.20(c)-(d).
        Plaintiff responds that Himmler is no longer good law, as it has been overturned by American
Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40 (1999). However, Giesse offers no
explanation as to why American Manufacturers, which concerns worker’s compensation benefits,
is relevant to the instant case. Indeed, American Manufacturers is useful insofar as the Court held
that the plaintiffs in that case did not have a property interest in medical benefits. Id. at 61.
       Giesse also contends that Congress “overturned” Himmler by enacting 42 U.S.C. § 1395w-
22(g)(1)(A). This statute states, in relevant part, that a “Medicare+Choice organization shall have
a procedure for making determinations regarding whether an individual . . . is entitled to receive a
No. 06-4497                 Giesse v. Sec. of Dep’t of HHS, et al.                              Page 8


health service under this section and the amount (if any) that the individual is required to pay with
respect to such service.” Plaintiff similarly does not elaborate on why this statute nullifies the
holding of Himmler, but we assume it is because the above language could be read as suggesting that
an enrollee has an entitlement, and thus a property right, in receiving medical care. The above
language actually undercuts plaintiff’s entitlement argument, as it demonstrates that even if there
is an entitlement to services, this entitlement can be as little as a few (or no) days, rather than an
automatic grant of the 100-day maximum allowed under 42 U.S.C. § 1395d(a)(2)(A), as plaintiff
contends. Without a property interest in 100 days of medical care, plaintiff cannot claim that he
suffered a constitutional deprivation, eliminating any claim of a Loudermill violation.
                                                  III.
        Plaintiff alternatively argues that the Supreme Court’s holding in Bowen v. Michigan
Academy of Family Physicians, 476 U.S. 667 (1986), provides for judicial review of his claim.
“Under the narrow reading of Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667
(1986), adopted in Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1 (2000), parties
affected by Medicare administrative determinations may sue in federal court under 28 U.S.C.
§ 1331, bypassing § 405 preclusion, only where requiring agency review pursuant to § 405(h)
‘would mean no review at all.’” BP Care, Inc. v. Thompson, 398 F.3d 503, 508 (6th Cir 2005)
(citing Illinois Council, 529 U.S. at 19). This exemption, however, should not serve to circumvent
established mechanisms of judicial review. In determining whether the Michigan Academy
exception applies to a particular case, this court “must examine whether [the plaintiff] is simply
being required to seek review first through the agency or is being denied altogether the opportunity
for judicial review.” Cathedral Rock of North College Hill, Inc. v. Shalala, 223 F.3d 354, 361 (6th
Cir. 2000) (citing Illinois Council, 529 U.S. at 19). Plaintiff thus argues that if his claims are
considered grievances, he is deprived of any judicial review of his claims, and the Michigan
Academy exception is therefore triggered. We disagree.
         Michigan Academy allows for plaintiffs to seek judicial review of their “challenges to the
validity of the Secretary’s instructions and regulations” when such claims would be otherwise barred
under § 405(h). 476 U.S. at 680. Subsequent cases that involved similar statutory and regulatory
Medicare challenges have likewise discussed the applicability of the Michigan Academy exception
– which itself involved a challenge to a Medicare regulation – with varying results. See, e.g., Illinois
Council, 529 U.S. at 5 (challenging various Medicare regulations as violative of the Constitution);
BP Care, 398 F.3d at 506 (2005) (challenge to HHS’s policy of imposing successor liability to
monetary penalties); Cathedral Rock, 223 F.3d at 357 (challenging HHS determination that facility
was not in compliance with program regulations). Here, by contrast, plaintiff does not challenge a
rule or regulation, but rather seeks damages stemming from an alleged wrongful termination of care.
Plaintiff had the option to appeal his administrative determination, which would either result in him
obtaining relief in the form of reinstated medical care or in judicial review. It was only plaintiff’s
belief that reinstatement of care would be an inadequate remedy that places him outside the ambit
of reviewable claims. We therefore cannot conclude that plaintiff was without judicial remedy.
Indeed, plaintiff is deprived of judicial review to no greater extent than that of an injured claimant
who, for one reason or another, fails to seek redress within the applicable statute of limitations
period.
                                                  IV.
        Giesse lastly contends that there is an implied right of action in the Medicare context under
Bivens, 403 U.S. at 388. “Bivens established that the victims of a constitutional violation by a
federal agent have a right to recover damages against the official in federal court despite the absence
of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980). The Supreme
Court, however, has noted that the absence of a statutory remedy for a constitutional violation does
No. 06-4497                 Giesse v. Sec. of Dep’t of HHS, et al.                            Page 9


not imply that courts should award monetary damages, and has cautioned lower courts against
extending Bivens into new contexts. Schweiker v. Chilicky, 487 U.S. 412, 421-22 (1988). In
Schweiker, the Court refused to extend a Bivens claim to a Social Security beneficiary who had been
denied benefits wrongly. Although the benefits were restored eventually, the beneficiary suffered
injury beyond the amount he lost in benefits. In refusing to recognize Bivens as a remedy for alleged
constitutional violations in the mishandling of Social Security claims, the Court acknowledged that
doing so would deprive claimants of complete relief in situations where they had been wrongly
denied benefits. Id. at 428-29 (citing Bush v. Lucas, 462 U.S. 367 (1983)). Nevertheless, the Court
noted that Bivens was unsuited to instances where Congress had already provided “meaningful
safeguards or remedies for the rights of persons . . . .” Id. at 425.
         We have not addressed whether Bivens provides an implied right of action in the Medicare
context. The Fifth Circuit, however, has held that no such remedy exists in the present context. In
Marsaw v. Thompson, 133 F. App’x 946 (5th Cir. 2005), the court addressed whether a plaintiff who
alleged due process violations and state claims satisfied his jurisdictional burden when his Medicare
claims were denied during administrative review. The court reasoned that it “will not imply a Bivens
remedy for an alleged constitutional violation in the denial of Medicare Act reimbursements,
because Congress created a comprehensive statutory administrative review mechanism, which was
intended fully to address the problems created by wrongful denial of Medicare reimbursements.”
Id. at 948. See also Kaiser v. Blue Cross of California, 347 F.3d 1107, 1117 (9th Cir. 2003) (noting
that Bivens claim is unavailable in Medicare context). A Bivens remedy is likewise unwarranted in
the present case, as the Medicare Act has provided a mechanism to address claims of wrongful
denials of benefits and provided a remedy in the form of reinstatement of that care.
                                                 V.
       For these reasons, we affirm the judgment of the district court.
No. 06-4497                 Giesse v. Sec. of Dep’t of HHS, et al.                            Page 10


                                     _____________________
                                        CONCURRENCE
                                     _____________________
         MERRITT, Circuit Judge, concurring. I am having trouble making sense of plaintiff’s
claims. Although I hesitate to rest our judgment on a lack of subject matter jurisdiction, I agree with
the Court that the plaintiff has not stated a valid federal cause of action under any theory presented
in his complaint. Giesse did not seek reinstatement of skilled nursing care services, as required
procedurally by the controlling statute — only damages. He has not exhausted his federal
administrative remedies against the Secretary of Health and Human Services, and there has been no
final administrative decision by an agency of the United States Government for us to review. So
there is no valid administrative law claim. Neither does plaintiff have an independent private federal
cause of action created by federal statute, nor a “property right” abridged without due process of law
which would give rise to a federal constitutional claim. The problem with the plaintiff’s federal
action is that he cannot find any federal statute that would give rise to a Medicare action for
damages, nor a federal constitutional theory that would give rise to a direct action in federal court
for a constitutional tort based on the failure of the private defendants to allow Giesse to remain in
the nursing home after July 2003.
       Plaintiff waived oral argument in this case and, therefore, did not take advantage of the
opportunity we provide parties to develop and clarify their arguments in a dialogue with the
members of the Court. Giesse’s arguments are confusing, and perhaps we could have made more
sense of them if we could have asked counsel a few questions at an oral argument.
No. 06-4497                 Giesse v. Sec. of Dep’t of HHS, et al.                           Page 11


                                         _______________
                                            DISSENT
                                         _______________
       R. GUY COLE, JR., Circuit Judge, dissenting. The majority concludes that because Giesse
did not seek either reinstatement of medical services or reimbursement for payments made to
maintain such medical services, his challenge was properly classified as a “grievance” and not as
an appeal of an “organization determination.” I disagree.
       Under the Medicare program at issue here, an appeal refers to “any of the procedures that
deal with the review of adverse organization determinations on the health care services.” 42 C.F.R.
§ 422.561. “Organization determinations” include, inter alia, decisions made by an M+C
organization (here, Kaiser) with respect to “[p]ayment for any other health services furnished by a
provider other than the [M+C] organization that the enrollee believes . . . should have been
furnished, arranged for, or reimbursed by the [M+C] organization.” 42 C.F.R. § 422.566(b)(2)(ii).
Giesse’s challenge to Kaiser’s termination of skilled nursing treatment included a request for
compensation for payments made by him to Brookside Estates for services that he believed should
have been furnished, or at least paid for, by Kaiser. Although Giesse requested other forms of relief
that may not be available under Medicare, his claim that Kaiser refused to provide services that he
believed should have been provided and his request for reimbursement of payments made to
Brookside Estates, are exactly the kind of complaints that call for an “organization determination.”
       Kaiser’s definitions of “appeal” and “grievance” support this categorization:
               Appeal – A type of complaint you make when you want us to
               reconsider and change a decision we have made about what services
               are covered for you or what we will pay for a service.
               Grievance – Any written complaint or dispute other than one
               involving your request for us to reconsider and change a decision we
               have made about what services are covered for you or what we will
               pay for a service. Examples of complaints that will be resolved
               through the Grievance process are waiting times in physician offices;
               rudeness or unresponsiveness of [Kaiser] staff.
(Joint Appendix (“JA”) 410, 412.) Waiting times and customer service complaints are, therefore,
entirely different from complaints about the termination of care and the reimbursement of payments
made to another nursing facility; the former are grievances and the latter are complaints that require
an organization determination.
        Kaiser made such an “organization determination” in this case when it denied Giesse’s
challenge. Significantly, after its denial, Kaiser directed Giesse’s complaint through the appeal
process, which is reserved for disputes that have resulted in an “organization determination.” On
review of this appeal, Maximus, without further explanation, provided: “We are dismissing your
case. Your complaint is not a valid appeal for medical coverage. Your complaint is a grievance that
must be answered by your Health Plan.” Although Giesse’s challenge may not have included an
“appeal for medical coverage,” it did include an appeal for “[p]ayment for any other health services
furnished by a provider other than the [M+C] organization that the enrollee believes . . . should have
been furnished, arranged for, or reimbursed by the [M+C] organization.” 42 C.F.R.
§ 422.566(b)(2)(ii). Kaiser’s denial of this request is an organization determination subject to
appeal, notwithstanding Maximus’s erroneous categorization.
No. 06-4497                 Giesse v. Sec. of Dep’t of HHS, et al.                          Page 12


        Indeed, after the ALJ dismissed Giesse’s challenge, on the basis of Maximus’s categorization
of the complaint, and the challenge proceeded to the Center for Medicare & Medicaid Services
within the Department of Health and Human Services, the Department questioned why Maximus
labeled Giesse’s request for reconsideration as a grievance:
       Although we recognize that much of the relief being sought by the appellant was
       outside of [Maximus’s] purview to act upon (e.g., interest, attorney’s fees,
       compensation for distress sale of personal residence), we question why [Maximus]
       did not make a determination of the appropriateness of [Kaiser’s] decision to
       terminate coverage of the daily inpatient SNF benefits as of 8/1/2003. This seems
       to be the exact kind of SNF termination issue that [Maximus] frequently used to
       review.
(JA 177; emphasis added.)
        Giesse’s prayer for relief included a request for payment for services provided by Brookside
Estates, which Giesse believed should have been furnished or reimbursed by Kaiser. Kaiser’s
decision related to this request is an “organizational determination” that is subject to the Medicare
appellate process. I would, therefore, reverse the district court’s judgment and remand for an
administrative hearing.
