UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

MICHELLE G. PORTA, Plaintiff-Appellant,

v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, Defendant-Appellee. No. 13-2207 (D.C. No. 2:11-CV-01138-MV-LAM) (D. N.M.)

ORDER AND JUDGMENT *

Before HARTZ , TYMKOVICH , and HOLMES , Circuit Judges.
Michelle G. Porta, proceeding pro se, appeals the district court’s entry of summary judgment in favor of the United States Office of Personnel Management (“OPM”) on her claims to recover health benefits under the Federal Employees Health Benefits Act (“FEHBA”), 5 U.S.C. §§ 8901-8914. Exercising our jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the judgment as modified.

* After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 4, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - I. Background Ms. Porta, who is a federal employee wo rking in New Mexico, was enrolled in the Standard Option of the Blue Cross and Bl ue Shield Service Benefit Plan (“Plan”), a nation-wide health benefit plan for fe deral employees contracted by OPM. As pertinent here, the Blue Cross and Blue Sh ield of Arizona (“BCBSAZ”) administered the Plan. In April 2008, Ms. Porta was di agnosed with lung cancer. She elected to seek treatment at the Mayo Clinic in Phoenix, Arizona (“Mayo Clinic”). The Mayo Clinic was not a preferred provider or participating provider under BCBSAZ’s Preferred Provider Organizati on (“PPO”). Ms. Porta recei ved treatment at the Mayo Clinic throughout 2008 and 2009, and ultima tely incurred medical bills in excess of $200,000 for which she was personally resp onsible under the terms of the Plan. At issue in this appeal ar e two sets of benefit clai m denials. The first set pertains to benefit claim denials for se rvices rendered by the Mayo Clinic between April 23, 2008, and May 19, 2008 (hereinaft er the “2008 Claims”) . Ms. Porta sought administrative review of th ese claims by BCBSAZ in June 2008. She alleged that she had met the Plan’s catastrophic protecti on limit of $6,500, and, therefore, the Plan was responsible for charges by the Ma yo Clinic above that amount. In August 2008, BCBSAZ denied Ms. Porta’s request for benefits, concluding that certain expenses incurred by Ms. Porta did not count toward the catastrophic protection maximum. Ms. Porta appealed BCBSAZ’s de nial of benefits fo r the 2008 Claims to- 3 - OPM. In February 2009, OPM issued a final decision concurring with BCBSAZ’s denial of benefits. The second set of benefit claim denial s were for services rendered by the Mayo Clinic between June 12, 2008, a nd December 31, 2009 (hereinafter the “2008-2009 Claims”). Ms. Po rta requested administrative review of some of these benefit claim denials – thos e relating to services from June 12, 2008, to May 15, 2009 – to BCBSAZ in December 2009. B CBSAZ responded in January 2010. Because Ms. Porta did not seek review by BCBSAZ within six m onths of its claim determinations for these be nefit claims, as re quired under 5 C.F.R. § 890.105(a)(1), (b)(1), BCBSAZ found the request was untimel y. It nevertheless affirmed that the claims were processed co rrectly. Ms. Porta did not seek administrative review of the 2008-2009 Claims by OPM until Oc tober 2011, although she was required to do so within ninety days of BCBS AZ’s denial on reconsideration. See id

. § 890.105(e)(1)(i). 1 OPM did not respond to Ms. Porta’s request for review. Ms. Porta brought suit under the FEHBA against OPM in the United States District Court for the Distri ct of New Mexico in Decemb er 2011. She asserted three causes of action for her 2008 Claims and 20 08-2009 Claims, all seeking the same

1 Although Ms. Porta’s 2011 request fo r reconsideration by OPM was for benefit claim denials from “May of 2008-December 2009 ,” Admin. R., Vol. III at 506, OPM had previously reviewed bene fit claim denials fo r services rendered through May 19, 2008, in its February 25, 2009, final decision. And based on our review of the record, it does not appear th at Ms. Porta had any dates of service for care after May 19, 2008, until her date of service for care on June 12, 2008.- 4 - relief as permitted under 5 C.F.R. § 890.1 07(c) – a court order directing OPM to require BCBSAZ to pay the remainder of th e medical expenses that she incurred.
See 5 C.F.R. § 890.107(c). In count one, she alleged that she lived in a “medically underserved area” and, therefore, under 5 C.F.R. § 890. 702(a), BCBSAZ was required to pay the remainder of her medical expenses. In count two, she alleged that BCBSAZ misled her due to om issions in the Plan brochur e. In count three, she alleged that she was entitle d to the catastrophic protec tion provision of the Plan. The parties filed cross-motions for su mmary judgment. The district court determined as a preliminar y matter that Ms. Porta fail ed to timely exhaust her administrative remedies on her claims for benefits for the 2008-2009 Claims. It granted summary judgment on this basis for these claims for bene fits. It granted OPM’s motion for summary judgment on all th ree counts as applicable to the 2008 Claims, and denied Ms. Porta’s motion for summary judgment. Ms. Porta appeals.
II. Discussion When reviewing agency action, we apply “the same standard of review to the [administrative] record as did the district court.” Utahns for Better Transp. v. U.S. Dep’t of Transp ., 305 F.3d 1152, 1164 (10th Cir. 200 2). Judicial review of final OPM decisions pursuant to the FEHBA is go verned by the Admi nistrative Procedure Act, 5 U.S.C. §§ 500-706. See Bryan v. U.S. Office of Pers. Mgmt ., 165 F.3d 1315, 1318-19 (10th Cir. 1999); Muratore v. U.S. Office of Pers. Mgmt ., 222 F.3d 918, 920 (11th Cir. 2000). Accordingl y, we afford deference to OPM’s finding s and will set- 5 - aside an OPM decision “only if it was ‘arb itrary, capricious, an abuse of discretion, or otherwise not in a ccordance with law.’” Bryan , 165 F.3d at 1319 (quoting 5 U.S.C. § 706(2)(A)); see also Weight Loss Hea lthcare Ctrs. of Am., Inc

. v. U.S. Office of Pers. Mgmt ., 655 F.3d 1202, 1207 (10th Ci r. 2011) (holding that judicial review of OPM’s interpretation of federal-employee insurance plan is reviewed under an arbitrary a nd capricious standard). “We review a district court’s decision granting summary judgment de novo , resolving all factual disputes and drawing all reasonable in ferences in favor of the non-moving party.” Argo v. Blue Cross & Blue Shield of Kan., Inc ., 452 F.3d 1193, 1199 (10th Cir. 2006). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). On appeal, Ms. Porta raises three issues: 1) her request for review of the 2008-2009 Claims for health benefits was not untimely under OPM’s regulatory administrative review process because OP M’s regulations are unconstitutional; 2) she was entitled under 5 U.S.C. § 8902(m)(2) of the FEHBA to seek medical care outside of her medically underserved st ate; and 3) she was entitled to the Plan’s catastrophic protection provision. 2

2 Ms. Porta does not appeal the entry of summary judgment in favor of OPM on count two of her complaint. Further, alt hough Ms. Porta proceeds pro se, she is not entitled to have her filings construed liber ally because she is a trained attorney. See Mann v. Boatright , 477 F.3d 1140, 1148 n. 4 (10th Cir. 2007).- 6 - With one exception, we find the dist rict court’s reasoning cogent. We conclude, however, that a portion of its order must be modified. We, like the district court, conclude that Ms. Po rta failed to exhaust her ad ministrative remedies with respect to her 2008-2009 Clai ms. Because the fa ilure to exhaust is a jurisdictional requirement, however, we modify the dist rict court’s judgmen t to dismiss the 2008-2009 Claims for lack of jurisdiction. In all other respec ts, we affirm for substantially the same reasons se t forth by the district court. A. Exhaustion of Administrati ve Remedies for 2008-2009 Claims Ms. Porta first takes issue w ith the district court’s de termination that she failed to timely exhaust her administrative re medies regarding her 2008-2009 Claims for health benefits. “We review de novo the district court’s finding of failur e to exhaust administrative remedies.” Jernigan v. Stuchell , 304 F.3d 1030, 1032 (10th Cir. 2002). Pursuant to its authority under the FEHBA, see 5 U.S.C. § 8913, OPM has promulgated regulations es tablishing a detailed admi nistrative procedure for resolving disputes over FEHBA benefits. Pursuant to this regulatory scheme, if an enrollee disputes the carrier ’s resolution of a claim, the individual may request reconsideration by the carrier within six months of the denial of a claim. See 5 C.F.R. § 890.105(a)(1), (b)(1). The enrollee may seek fu rther review by OPM within ninety days of the carrier ’s denial on reconsideration. See id . § 890.105(b)(3), (e)(1)(i). “Only after exhausting these re medies, may the cove red individual seek- 7 - judicial review of [OPM’s] final action.” Bryan , 165 F.3d at 1318; see also 5 C.F.R. §§ 890.105(a)(1), 890.107(c) and (d)(1). Th e failure to exhaust these administrative remedies is a jurisdic tional bar to suit. See Bryan , 165 F.3d at 1318 (recognizing that Congress intended a limited waiver of sove reign immunity in FEHBA disputes and, therefore, “courts only have jurisdiction to review final actions, after e xhaustion, and only one remedy is available”). The district court determined that Ms. Porta failed to timely exhaust her 2008-2009 Claims. See Aplt. App. at 97-101. 3 The court correctly determined that the failure to exhaust administ rative remedies constitutes a jurisdictional bar to suit, see Bryan , 165 F.3d at 1318, but it also consider ed whether Ms. Po rta’s failure to exhaust could be excused. Finding no ex ceptions applicable, the court granted summary judgment on the 2008-2009 Claims. As we conclude below, the district court lacked jurisdiction to enter summary judgment on these claims. Based on our review of the administra tive record, Ms. Porta did not timely exhaust her 2008-2009 Claims. Her Decemb er 2009 request for reconsideration by BCBSAZ of a subset of these claims – claim denials for se rvices rendered from June 12, 2008, to May 15, 2009 – was untimely. See 5 C.F.R. § 890.105(a)(1), (b)(1) (requiring enrollee to seek reconsideration by the carrier within six months after

3 We note that the distri ct court’s reference to Ms . Porta’s 2008-2009 Claims, and the chronology of her requests for re view of those claims , is not factually accurate. See Aplt. App. at 92. This discre pancy does not affect our analysis.- 8 - denial of a claim). 4 Her request for review of the 2008-2009 Claims by OPM in October 2011 was also certainly untimely. See id . § 890.105(e)(1)(i) (requiring enrollee to seek review by OPM within ninety days of the carrier’s denial on reconsideration). OPM did not re spond to Ms. Porta’s 2011 request for reconsideration. Accordingly, there is no “final action by OPM involving [the] denial of health benefits,” 5 C.F.R. § 890. 107(c), for the 2008-2009 Claims. There is no final action on these claims and, thus, no administrative record for the district court to review. See Bryan , 165 F.3d at 1319. The district court, therefore, lacked jurisdiction to revi ew these claims, see id ., and should have di smissed these claims for lack of jurisdiction ra ther than granting summary judgment. We, therefore, modify this portion of th e district court’s order. 5

4 Based on our review, Ms. Porta did not seek reconsider ation by BCBSAZ of claim denials for care rendered between Ma y 16, 2009 through December 31, 2009. See 5 C.F.R. § 890.105(a)(1) (providing th at an enrollee “must exhaust both the carrier and OPM review processes . . . before seeking judicial review of the denied claim”). With one exception, Ms. Port a timely sought rec onsideration by BCBSAZ for care received on September 25, 2009. Sh e did not, however, seek further review by OPM until 2011.
5 Ms. Porta argues on appeal that he r 2008-2009 Claims were not time-barred because 5 C.F.R. § 890.107( d)(2), providing for judicial review no later than December 31 of the third year after the ye ar in which the care or service was provided, is unconstitutional as it creates a new statute of limitations and is beyond the scope of OPM’s delegated authority. See 28 U.S.C. § 2401(a) (providing for six-year federal statute of limitations to commence an action against the United States). In the same vein, she argues that 5 C.F.R. § 890.107(c), limiting recovery to a court order directing OPM to require the carrier to pay the amount of benefits in dispute, is likewise unconstitu tional. The district c ourt found that neither the constitutionality of the three-year statute of limitations for judicial review nor the scope of judicial remedies has any beari ng on Ms. Porta’s failure to exhaust her (continued)- 9 - B. Summary Judgment on Counts One and Three for the 2008 Claims As to count one, Ms. Porta asserted th at under 5 U.S.C. § 8902(m)(2)(A) of the FEHBA, she was entitled to se ek health care in another state because she lived in a medically underserved state. She also assert ed that she was entitled to have BCBSAZ pay her medical expenses in full. The district court disagreed. Ms. Porta argues that the court’s in terpretation of § 8902(m)(2)(A) was erroneous. The statute provides: [I]f a contract under this chap ter provides for the provision of, the payment for, or the re imbursement of the cost of health services for the care and treatment of any particular health condition, the carrier shall provide, pay, or reimburse up to the li mits of its contract for any such health service properly provided by any person licensed under State law to provide such service if su ch service is provided to an individual cove red by such contract in a State where 25 percent or more of the population is located in primary medical care manpower shortage areas designated pursuant to section 332 of the Public Health Service Act (42 U.S.C. 254e). Id . (emphasis added); see also 5 C.F.R. § 890.702(a) (providing same). The district court concluded that the stat ute was inapplicable, and, further, that Ms. Porta’s construction was contrary to the plain language of the statute. The court reasoned that the statute simply expa nds the categories of covered medical professionals in medically underserved stat es who can provide an enrollee with a

administrative remedies. We agree with the district court’ s analysis and treatment of this argument.- 10 - covered service if such profe ssional is licensed under State law to do so. Contrary to Ms. Porta’s claims, it further concluded th at the statute expressly limits the amount an enrollee may recover – “up to the limits of its contract” – which is determined by the type of provider the enrollee chooses to use, i.e. a pref erred provider or a non-preferred provider. We agree with the district cour t’s construction. As to count three, Ms. Porta argues th at the catastrophic protection provision of the Plan applies to her. In its final decision, OP M explained that by using a non-preferred, non-participat ing provider, Ms. Porta was responsible for 25% of the Plan allowance, plus the difference between the Plan allowance and the billed amount. Additionally, it stated that this difference in amount, as well as the 30% coinsurance for inpatient care at a non-me mber hospital, were excluded under the catastrophic protection provision. As such, these expenses did not count towards the $6,500 catastrophic coverage li mit and Ms. Porta was respons ible to pay them even after exceeding the $6,500 limit. OPM conc luded that the 2008 Clai ms had been paid at the highest level possible for non-PPO providers, and b ecause these providers were not contracted with the Plan, they coul d bill Ms. Porta the difference between the Plan’s allowance and the charge d amount. We conclude, as di d the district court, that OPM’s decision was not “arbitrary, capricious , an abuse of discretion, or otherwise not in accordance with law.” Bryan , 165 F.3d at 1319 (int ernal quotation marks omitted).- 11 - We have reviewed the parties’ brie fs, the administrativ e record, and the applicable legal authorities. We agree with the district court’s thorough and accurate analysis granting summary judgment in favor of OPM on counts one and three. We affirm the district court’s entry of summary judgment on these counts for substantially the same reasons as set forth in its orde r dated Septem ber 24, 2013.
III. Conclusion For the foregoing reasons, we affirm the district court’s or der as modified by this opinion. The order is modified to dismiss the 2008-2009 Cl aims for lack of jurisdiction. The judgment of the district c ourt is modified in part, and, as modified, affirmed. Entered for the Court

Jerome A. Holmes Circuit Judge13-2207, Porta v. United States Office of Personnel Management HARTZ, Circuit Judge, concurring. I join the opinion by Judg e Holmes. I suspect, however , that the district court was correct that the timeliness of exhaustion is not a jurisdictional matter in this context. When that issue would actually affect the outco me of a case, it would be appropriate for this court (probably sitting en banc) to try to straighten out some of the inconsistencies in this circuit’s jurisdictional jurisprudence.