Olsen v. Azar, No. 2:2020cv00374 - Document 34 (E.D. Wash. 2021)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S 19 MOTION TO DISMISS. Count I of Plaintiff's Complaint, ECF No. 1 , is DISMISSED WITHOUT PREJUDICE for failure to state a claim upon which relief may be granted. File is CLOSED. Signed by Judge Salvador Mendoza, Jr. (VR, Courtroom Deputy)
Download PDF
<![CDATA[
Olsen v. Azar Doc. 34 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Jan 12, 2021 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 SEAN F. MCAVOY, CLERK 4 JEREMY OLSEN, No. 2:20-cv-00374-SMJ 5 Plaintiff, 6 v. 7 8 9 ALEX M. AZAR II, in his official capacity as the Secretary of the United States Department of Health and Human Services, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS Defendant. 10 11 12 Before the Court, without oral argument, is Defendant’s Partial Motion to 13 Dismiss, ECF No. 19. Defendant asks this Court to dismiss Counts I and IV of the 14 Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 15 claim. The Court has reviewed the record and pleadings in this matter, is fully 16 informed, and grants in part and denies in part Defendant’s Partial Motion to 17 Dismiss. 18 BACKGROUND 19 Plaintiff Jeremy Olsen alleges he is a 41-year-old Type I diabetic who has 20 suffered kidney failure and undergone a kidney transplant due to his condition. ECF ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS – 1 Dockets.Justia.com 1 No. 1 at 10. Plaintiff uses a Medtronic MiniMed Continuous Glucose Monitor 2 (CGM), which he alleges a doctor prescribed him to help avoid failure of his 3 transplanted kidney and prevent other complications from his diabetes. Id. at 11. 4 After his claim for Medicare coverage of the CGM supplies was initially 5 denied as not “durable medical equipment,” an Administrative Law Judge 6 eventually approved Plaintiff’s claim. Id. at 11–12. But the Medicare Appeals 7 Council/Departmental Review Board (“Appeals Council”) reversed the ALJ, 8 determining that a CGM is not “durable medical equipment” because it is not 9 “primarily and customarily used to serve a medical purpose.” Id. at 12. 10 Plaintiff sought judicial review in the U.S. District Court for the District of 11 Columbia. ECF No. 1. The case was transferred to this Court. ECF No. 14. Plaintiff 12 alleges six causes of action. ECF No. 1. Among other things, he claims the Appeals 13 Council based its decision on CMS-1682-R, a “final opinion and order” regarding 14 CGM coverage, which the Department of Health and Human Services issued 15 without a public notice and comment period. Id. at 8. 16 LEGAL STANDARD 17 Under Rule 12(b)(6), the Court must dismiss a complaint if it “fail[s] to state 18 a claim upon which relief can be granted,” including when the plaintiff’s claims 19 either fail to allege a cognizable legal theory or fail to allege sufficient facts to 20 support a cognizable legal theory. Kwan v. SanMedica Int’l, 854 F.3d 1088, 1093 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS – 2 1 (9th Cir. 2017). To survive a Rule 12(b)(6) motion, a complaint must contain 2 “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 3 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 4 Twombly, 550 U.S. 544, 570 (2007)). 5 Facial plausibility exists when a complaint pleads facts permitting a 6 reasonable inference that the defendant is liable to the plaintiff for the misconduct 7 alleged. Iqbal, 556 U.S. at 678. Plausibility does not require probability but 8 demands something more than a mere possibility of liability. Id. While the plaintiff 9 need not make “detailed factual allegations,” “unadorned” accusations of unlawful 10 harm and “formulaic” or “threadbare recitals” of a claim’s elements, supported only 11 “by mere conclusory statements,” are insufficient. Id. 12 In deciding a Rule 12(b)(6) motion, the Court construes a complaint in the 13 light most favorable to the plaintiff, assumes the facts as pleaded are true, and draws 14 all reasonable inferences in his or her favor. Ass’n for L.A. Deputy Sheriffs v. County 15 of Los Angeles, 648 F.3d 986, 991 (9th Cir. 2011); Iqbal, 556 U.S. at 678. Even so, 16 the Court may disregard legal conclusions couched as factual allegations. See id. DISCUSSION 17 18 A. Plaintiff fails to state a claim as to Count I 19 Count I of Plaintiff’s complaint alleges a cause of action under 5 U.S.C. § 20 706(1). ECF No. 1 at 12–13. That subsection empowers courts to “compel agency ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS – 3 1 action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). “[A] claim 2 under § 706(1) can proceed only where a Plaintiff asserts that an agency failed to 3 take a discrete agency action that it is required to take.” Norton v. S. Utah 4 Wilderness Alliance, 542 U.S. 55, 64 (2004) (emphasis in original). 5 Defendant argues that Plaintiff’s disagreement with the substantive result of 6 the Appeals Council’s adjudication does not establish a claim under Section 706(1). 7 ECF No. 19 at 5. Defendant insists that because Plaintiff does not allege that the 8 agency failed to take some required action, the Court must dismiss Count I. Id.; see 9 Norton, 542 U.S. at 61 (Section 706(1) contemplates “judicial review of agency 10 inaction”). 11 This Court agrees. True, the agency’s reversal of the ALJ’s decision means 12 that Plaintiff does not receive the coverage he seeks. But Section 706(1) “does not 13 give [courts] license to ‘compel agency action’ whenever the agency is withholding 14 or delaying an action [they] think it should take.” Hells Canyon Pres. Council v. 15 U.S. Forest Servs., 593 F.3d 923, 932 (9th Cir. 2010). Instead, Courts may do so 16 only when “an agency has ignored a specific legislative command.” Id. The Court 17 thus dismisses Count I of Plaintiff’s Complaint. 18 B. Plaintiff states a claim as to Count IV 19 Count IV of Plaintiff’s complaint alleges a cause of action under 5 U.S.C. § 20 706(2)(D). ECF No. 1 at 14. That subsection empowers district courts to set aside ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS – 4 1 agency actions, findings, or conclusions they find to be “without observance of 2 procedure required by law.” 5 U.S.C. § 706(2)(D). Like Count I, Defendant 3 maintains that Plaintiff objects to the substantive result of the agency decision and 4 does not allege any procedural failings. ECF No. 19 at 6. 5 But as to this Count, Plaintiff does not merely allege that the agency 6 improperly denied coverage. He also argues that the Appeals Council’s decision 7 should be invalidated precisely because it relied on a rule promulgated “without 8 observance of procedure required by law.” See 5 U.S.C. § 706(2)(D); ECF No. 1 at 9 14; ECF No. 21 at 4. Namely, he alleges that the agency did not comply with the 10 notice and comment provisions for modification of Medicare coverage policy in 11 issuing CMS-1682-R. ECF No. 1 at 6, 14; see also 42 U.S.C. § 1395hh(2); Sequoia 12 Orange Co. v. Yeutter, 973 F.2d 752, 757 n.2 (9th Cir. 1992). Plaintiff has thus 13 stated a plausible claim for relief. 14 Accordingly, IT IS HEREBY ORDERED: 15 1. Defendant’s Partial Motion to Dismiss, ECF No. 19, is GRANTED IN PART AND DENIED IN PART. 16 17 // 18 // 19 // 20 // ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS – 5 1 2. Count I of Plaintiff’s Complaint, ECF No. 1, is DISMISSED 2 WITHOUT PREJUDICE for failure to state a claim upon which 3 relief may be granted. 4 5 6 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order, provide copies to all counsel, and thereafter close the file. DATED this 12th day of January 2021. 7 8 9 _________________________ SALVADOR MENDOZA, JR. United States District Judge 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS – 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
