Marco Garcia v. U.S. Secretary of Health & Human Services , 542 F. App'x 648 ( 2013 )

FILED
NOT FOR PUBLICATION OCT 18 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCO GARCIA, No. 12-55057
Plaintiff - Appellant, D.C. No. 2:10-cv-08820-PA-RZ
v.
MEMORANDUM*
U.S. SECRETARY OF HEALTH &
HUMAN SERVICES,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted October 10, 2013**
Pasadena, California
Before: PAEZ and HURWITZ, Circuit Judges, and ERICKSON, Chief District
Judge.***
*
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).
***
The Honorable Ralph R. Erickson, Chief District Judge for the U.S.
District Court for the District of North Dakota, sitting by designation.
Marco Garcia appeals a district court judgment upholding a Medicare
recoupment determination by the Secretary of Health and Human Services. We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
1. Substantial evidence supports the Secretary’s conclusion that Garcia was a
Medicare “provider.” Garcia applied for and obtained a six-digit Medicare billing
Provider Identification Number, bills were processed under this PIN, and Medicare
payment checks were made out in Garcia’s name.
2. Substantial evidence also supports the Secretary’s conclusion that Garcia is
not entitled to a liability waiver. See 42 U.S.C. § 1395pp(a). The Secretary also
reasonably found that Garcia did not act “without fault.” See 42 U.S.C. §
1395gg(b)(1).
3. Garcia waived any argument that the Secretary denied him due process by
not raising it below. Malhiot v. S. Cal. Retail Clerks Union, 735 F.2d 1133, 1137 (9th
Cir. 1984).
AFFIRMED.
2