UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

) BRIAN HALL, et al . ) ) P laintif fs, )

) v. ) Civil Action No. 08-1715 (R MC) ) KA THLE EN SEB ELIUS , Secre tary, Depart m ent of Health an d Hu m an Service s, et al ., ) ) ) ) Defendan ts. ) ) MEMORAN DUM OP INION Plaintiffs are r etired F eder al employ ees w ho have r eac hed ag e 65 and have applied for, and are rec eiving , Social Security Retirement benef its. As a result, they are “ent i t l ed” to Medica re Part A, cover ag e. They do not, howeve r, want Medica re cover ag e. And the only avenue provided to Plaintiff

s t o u n -entit le themselves is to cea se rec eiving Social Security Retirement benef its – and to repa

y all such benef

its alre ady rec eived. Plaintiffs decla im that such a require ment is contra ry to the Social Security Act, of which Medica re is a part. The Court conclude s that Plaintiffs’ claims are without merit.

Medica re costs are sky

rocke ting and may bankrupt us all; nonetheless, participa tion in Medica re Part A (for hospital insurance ) is statutorily mandated for retire es who are 65 y ear s old

or older and are rec ei v i ng Social Security Retirement (so-c alled ‘old ag e’) benef its. Whether Congr ess intended this re sult in 1965 or whether it is g ood fiscal a nd public policy in 2011 cannot
g ainsay the lang uag e of the statute and the reg ulatio n s . Ac co rdi ng ly , summary judgme nt will be
enter ed for

Def endants.I

. F ACTS Plaintiffs Br ian Hall, J o h n Kr aus, and Richard Armey share the following char acte ristics:

• They

are retire d from F eder al employ ment and have attained the a g e of 65.

• They

applied for , and ar e re ceiving , Social Security Retirement bene fits.

• They

are entitled to benef

its under Medica

re Par t A.

• They had previously been enrolled in health plans under the Fed eral Employ ees Hea lth Bene fit (FE HB ) prog ram a nd wish to continue that cove rag e in full.

• T hey do not want to be cover ed by Medica re Part A and want to dis en ro l l fr o m Medica re Par t A.

• They want to continue rec eiving their monthly Social Security Retirement benef its. These fac ts are all undisputed and, for purposes of resolving this dispute, are the on l y fa ct s that perta in. II. LEGAL STANDARDS

A. Summ ary Judgm ent Under Rule 56 of the Fe dera l Rules of Civil Procedur e, summary judgme nt must be
g rante d when “the pleading s, the discovery and disclosure materia ls on file, and any aff idavits show that there is no g enuine issue as to any materia l fac t and that the movant is entitled to a judgme nt as

a matter of law.” Fe d. R. Civ. P. 56 (c) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986);

see also Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986); Di amond v. Atwood , 43 F.3d 1538, 1540 (D.C. Cir. 1995). Moreove r, summary judgme nt is proper ly g rante d ag ainst a party that “af ter adequate time for discovery and upon motion

. . . fails to make a showing sufficie nt to establish the exis tence of an e lement essential to that par ty ’s ca se, and on w hich that par ty will bear the burden

-2-of proof at trial.” Celotex Corp. , 477 U.S. at 322. To deter mine which fac ts are “mater ial,” a court must look to the substantive law on which eac h claim rests. Anderson , 477 U.S. at 248 (1986). A “ge nuine issue” is one whose resolution could establish an element of a claim or defe nse and, there fore , aff

ect the outc ome of the a ction. Id .; Celotex , 477 U.S. at 322. I n ruling on a motion for s u m mary judgme nt, the court must draw all justifiable infere nces in the nonmoving party ’s favor and acc ept the n o n m o v i n g party ’s evidenc e as true. Anderson , 4 7 7 U. S

. at 2 55. A nonmoving party , howeve r, must establish more than “the mere exis tence of a scintilla of evidenc e” in support of its position. Id. at 252. To preva il on a motion for
summary judgme nt, the moving party must show that the nonmoving party “f ai l [ ed ] to make a showing sufficie nt to establish the exis tence of an element essential to that party ’s ca s e, and on which that party will bear the burden of proof at trial.” Celotex , 477 U.S. at 322. By pointing to the absenc e of evidenc e proffer ed by the nonm oving party , a movi ng party m ay s u cc eed on summary judgme nt. Id. I n addition, the nonmoving party may n o t re l y solely on alleg ations or conclusory

s t at em ents

. Gree ne v. Dalton , 164 F.3d 671, 675 (D.C. C ir. 1999). Rather, the nonmovin g p ar t y
must prese nt specific fac ts that would enable a rea sonable jury to find in its favor

. Gree ne , 164 F.3d
at 675. I f the evidenc e “is merel y colorable, or is not signific antly probative, summary judgme nt
may be g rante d.” Anderson , 477 U.S. at 249-50 (c itations omi tted).

B. Stand ing I f a plaintiff cannot meet the constitutional requ i re m en t of standing , courts lack jurisdiction to rea ch the merits of the case . See Steel Co. v. Citi zens for a Better Env’t , 523 U.S. 83, 101 (1998); Grand Council of the Cr ee s v. F E RC , 198 F.3d 950, 954 (D.C. Cir. 2000). To have Article I I I s t anding , a plaintiff must establish: “(1) [he] has suffe red an ‘injury in fac t’ that is (a)

-3-concr ete and particula rized and (b) actua l or imminent, not conjec tural or hy pothetical; (2) the injury is fairly trac eable to the challeng ed action of the defe ndant; and (3) it is likely , as opposed to mere ly specula tive, that the injury will be redr essed by a favor able decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. , 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defende rs of W ildlif e , 504 U.S. 555, 560-61 (1992) ).
III

. ANALYSIS

Whil e the Court finds that Plaintiffs have standing with which to bring this lawsuit, they cannot survive summary judgme nt beca use the statutory scheme dictates that Medica re Part A is mandatory for those individuals who are 65 y ear s old and are rec eiving Social Security Retirement benef its. A. Standi ng Exi sts Messrs. Kra

us, Armey , and Ha ll have applied f or and a re r ece iving monthly

Social S ec u ri ty Retirement benef its and wish to continue to do so; howeve r, they wish to o p t -o u t o f Medica re Part A for various persona l, financ ial, and other rea sons. Def endants arg

ue Plaintiffs have no standing to sue. As the Court found in Iye ngar v. Barnhart ,

[I ]n order [] for plaintiffs to establish their standing to sue, they need not eliminate all doubt as to whether the challeng ed action

. . . cause d [t heir injury ]. .

. . Rather, plaintiffs must show only (1) a substantial probability that [t heir injury ] was or is being cause d by t he [defendant’ s] policy , and (2) a rea sonable likelihood that eliminating that policy

will [ redr ess that injury ]. 233 F. Supp. 2d 5, 10 (D

. D. C

. 2002). Plaintiffs’ alleg ed injury is being forc ed to either (1) have inferior insurance foisted upon them, there by p re cl u d i n g their ability to be cover ed by superior insurance ; or (2) r ece ive their superior non-Medicare Part A i nsuranc e at the c ost of relinquishing

-4-their Social Security Retirement benef its, and re- pay ing past benef its rec eived. Plaintiffs ask t h e Court to reme dy this injury by invalidating the internal reg ulations that dictate this untenable choice

– internal reg ulations which Plaintiffs claim are in contra vention of the Social Security Act and the Medica re Ac t

. As s u m i ng this to be the case , the Court would have the power to invalidate those
contra vening reg ulations, thereby providing Plaintiffs with the redre ss they reque st. The Secre tary ex t o lls the benef its of Medica

re Part A and sug g ests that Plaintiffs would ag ree they

are not truly

injured i f they

wer e to lear

n more a bout Medicar e, per

haps throug h discovery

. See, e.g. , Def

s.’ Statement of Genuine I ssues of Materia l Fa ct with Respect to Pls.’ Mot. for Summ. J

. [D k t

. # 4 1 ] ¶ 35. Plaintiffs politely decline. The parties use a lot of ink disputing whether Plaintiffs’ desire to avoid Medica re Part A is sensible. This is not an issue the Court needs
to addre s s . P laintiffs have standing beca use they cannot avoid Medica re without forg oing Social Security Retirement benef its; they arg ue that there is no statutory tie betwee n the two. This dispute constitutes a case or controve rsy without reg ard to w hy Plaintiffs pr efe r other insurance cover ag e. As such, Plaintiffs have standing to bring this lawsuit.

B. Th e Social Security and Medicare Statutory Schem e The Medica

re Act, which is enac ted at T i t l e XVI I I of the Social Security Act and codified at 42 U.S.C. § 1 3 95 et s eq. , establishes a prog ram of health ins uranc e for the elderly and disabled. Medica

re Part A, often called “Hospital I nsuranc e” or “HI ,” cover s service s furnished by hospitals and other instit utional providers. 42 U.S.C. § § 1395c–1395i-5. Entitlement to Medica re Part A benef

its occur s automatically for individuals who turn 65 and are “entitled” to monthly Social Security Retirement benef its under 42 U.S.C. § 402. See 42 U.S.C. § 426(a) (“Eve ry individual who

. . . has attained the ag e of 65, and is entitled to monthly [S ocial Security benef its] under [42 U.S.C.

-5-§ 402] of this title

. . . shall be entitled to hospital insura nce be nefits under Part A of [t his c hapter ]

. . . .”). By contra st, Medica re Part B, which provides supplemental medical insurance benef its for 1

cer tain medical and health car e service s not otherwise cov er ed under Medica re Part A, including phy sician service s, is an optional prog ram to which individuals are not automaticall y en t i t l ed.
I ndividuals entitled to Part A must pay for Medica re Part B and may choose to opt out of Part B. See 42 U.S.C. §§ 1395j-1395w-5. This distinction–between the mandatory nature of Part A an d t h e optional nature of Part B–ha s been specific ally reco gn ized by the Supreme Court: “This optional

cover ag e [under Medica

re Part B]

. . . supplements the mandatory instit utional health benef its (such

as cover ag e for hospital expenses) provided by Part A.” B o w en v. Michigan Acade my of Family Physicians , 476 U.S. 667, 674-75 (1986) ( emphasis adde d).

“Entitled” is the statutory word that applies to both S ocial Security Retirement benef its and Medica

re Part A but one become s “entitled” throug h differ ent routes. Under the Social Security Act: Every individual who – (1) is a fully insured individual (as define d in section 414(a) of this title), 2 (2) ha s attained a g e 62, and (3) ha s filed applica tion for old-ag e insuranc e bene fits . . . shall be entitled to an old-a g e insuranc e bene fit for e ach month . . . .
Certain disabled pe rsons and qua lified railroa d retire ment benef iciarie s are also entitled 1 to Medicar e Part A c overa g e. Since Plaintiffs ar e entitled to Medica re Par t A beca use they are rec eiving Social Security

Retirement bene fits, however , this decision focuses only on that cate g ory of Medica

re Par t A benef iciarie s. 42 U.S.C. § 414(a) de fines a “ fully insured individual” pre dominately as one w ho has at 2 least 40 quar

ters of c overa g e, i.e. , contributions to Social Security over a t least 40 quarte rs of a work life. -6-42 U.S.C. § 402. Thus, one must apply for Social Security Retirement benef its; if y ou fail to apply , y ou will not be “entitled” to the benef it, without reg ard to ag e or working history

. Medica re Part A works diffe rently . As rele vant to Plaintiffs, the Medicar e statute provide s:

Every individual who – (1) ha s attained a g e 65, and (2)( A) i s enti tled to monthly insurance benef its under section [42 U.S.C. § 402] of this titl e . . . shall be entitled to hospital insurance benef its under part A of title XVI I I [of this c hapter ] for eac h month f or which he mee ts the condition spe cified in para g raph ( 2) . . . . 42 U.S.C. § 426(a)

. What this means is that an individual who has applied for So ci al Security Retirement benef

its and qualifies to rec eive such bebenf its, so that he is “entitled” to Social Security Retirement benef

its, automatically become s “entitled” to Medica re Part A upon his 65th birthday

. The only way to avoid entitlement to M ed i ca re P ar t A at ag e 65 is to fore g o the source of that entitlement, i.e. Social Security Retirement benef its. There are but two way s to fore g o Social S ecurity Retirement benef its: (1) fail to apply even though qualified, see 42 U.S.C. § 4 0 2 (a ) (r eq u i ri n g the fil ing of an application); or (2) withdraw one’s application and repay all retire ment benef its already

rec eived, see 20 C.F.R. § 404.640. So c ia l Se curity reg ulations provide a means of avoiding e n ti tl e me n t to mo n

th ly So c ia l Security Retirement benef its and there by also provide a means of avoiding entitlement to Medica re Part A benef

its. An individual may withdraw an application for Social Security Retirement benef its afte r it has been filed by submitt ing a written reque st and either repa y ing “[a]ll benef

its alre ady paid”

-7-o r upon the SSA being “satisfied that they will be repa id.” See 20 C.F.R. § 404.640. T h es e 3
reg ulations are of no assistance to Plaintiffs, howeve r, since they want to avoid Medica re Part A and
reta in their Social Security Retirement bene fits. 4 The interre lationship betwee n Social Security Retirement benef its and Medica

re Part A is explained in SSA’s Prog ram Oper ations Manual Sy ste m ( “ PO M S” ) , a n SSA handbook desig ned for internal use by SSA employ ees in proce ssing claims. Plaintiffs focus their challeng e on three provisions of the POMS, which they asser t forc e them to enroll in Medica re Part A and provide that they will lose their monthly Social Security Retirement benef its if they choose not to enroll. POMS HI 00801.002, titled “ Waiver of HI Entitlement by Monthly Be nefic iary ,” states that a person who i s en titled to monthly Social Security Retirement benef its may not “wa ive” Medica re Part A “entitlement,” but may avoid such “entitlement” by withdrawing an individual’s appli cation for monthly Social Security Retirement ben efits, which would “re quire[] repa y ment” of all benef

its

rec eived. See POMS HI 00801.002.

The other two challeng ed POMS provisions repe at the same premise (spec ifi ca lly ref err ing back to POMS HI 00801.002) while providing additional information about differ ent kinds of per mitted withdrawals. POMS HI 00801.034, titled “Wit hdraw al Considerations,” state s:

The Sec reta

ry explains t hat this repay

ment reg ulation was adopte d y ear s ag o to 3 terminate the prac tice of a pply ing f or bene fits, rec eiving them for a while, and then w ithdrawing the applica tion, which resulted in an inter est-fr ee loa n from the g overnme nt. See 75 Fe d. Reg

. 76256 (De c. 8, 2010). The Court notes that 20 C.F.R. § 404.640 wa s rec ently amende d on Dec ember

8, 2010, 4 to include a r equire ment, inter alia , that a withdra wal fr om Social Security

Retirement bene fits be “f iled within 12 months of the fir st month of entitlement.” See 20 C.F.R. § 404.640; see also 75 Fe d. Reg . 76256 (De c. 8, 2010). I n light of the dispositi on of this case , this decision does not need to a ddress, nor doe s it address, whe ther that one -y ear limit ation would apply

to Plainti ffs. -8-To withdraw from the HI prog ram, an individual must submit a written reque st for wi t h d ra wa l and must ref und any HI benef

its paid on his/her behalf

. . . . An individual who filed an application for both monthly (Social Security Retirement] benefits and H I may :

• withdraw the claim for monthly [S ocial Security Retirement] benef

its witho u t je o p a

r d iz in g H I e n ti tl ement; or

• wi t h d raw the claim for both monthly [S ocial Security Retirement] benefits and H I

. The individual may not elec t to withdraw only the HI claim. POMS HI 00801.34. F in a ll y , PO M S G N 0 0 2 0 6

. 0 20, titled “Withdrawal (WD) Considerations When Hospital I nsuranc e (HI ) is I nvolved,” is to the same eff ect. I t conclude s: “Howe ver, a claimant who is entitled to monthly [S ocial Secur ity Retirement] benefits ca

nnot withdraw [ from Medicare Part A] cover ag e only , since entitlement to [Medicare Part A] is based on entitlement to monthly [S ocial Security Retirement] benefits (se e HI 00801.002).” POMS GN 00206.020. Plaintiffs filed this lawsuit pursuant to the Medica re A ct, 42 U.S.C. § 1395 et seq. , the Social Security Act, 42 U.S.C. § 401 et seq. , and the Administrative Procedur e Act (“A PA”), 5 U.S.C. § 551 et seq. , alleg ing that the Social S ecur ity Administration’s (“SSA”) reg ulations
reg arding Medica

re Part A, as set forth in the SSA’s POMS, are invalid and opera te either to deprive
P l ai n tiffs of t heir right to Social Security benef its or t o forc e them to “enr oll in” M edica re P ar t A
ag ainst their will. See generally Am. Compl. ¶¶ 37–60. Plaintiffs seek an order enjoining Def endants from “enf

orcing ” the three challeng ed P OMS provisions, and “a llowing Plaintiffs not
to enroll in, or to disenroll from, Medi ca re , P ar t A, without the loss of their Social Security [R etireme nt] monthly benef its.” Am. Compl. (Pray er for Relief) ¶ 5. The Court will not g rant such relief beca use the POMS are a prope r implementation of the Social Sec urity and Medic are Acts.

-9-C. The P OMS Result from P roper Im plem entation of the Social S ecurit y and Medicare Ac ts and Regulation s Thereunder J ust as P laintiffs complain, t hey have no choice but to participate in Medica re Part A, unless they fore g o all Social Security Retirement benef its in the future and repa

y those benef

its alre ady rec eived. This result occur s by opera tion of law, not the POMS, which only ref lect the leg al

rea lities. I t was not by mistake or inadver tence that SSA published the internal POMS; the Medica re Act specifie s that all persons who have rea ched ag e 65 and who are rec eiving Social Security Retirement bene fits are “entitled” to Medica re Part A. See 42 U.S.C. § 426. The statute does not require any “enr ollment” proce dure for this entitlement to attach. Successive Secre taries since 1965 have not eng ag ed in rulemaking to establish any enrollment proce dure for Medica re Part A. There is a “dis-enr ollment” possibili ty , albeit very unattrac tive, that allows a 65 y ear -old benef iciary to make himself u n -entitled for Medica re Part A by fore g oing one of the essential require ments to become entitled to Medicar e Part A – r ece ipt of Social Security Retirement bene fits. Plaintiffs arg ue that nothing in the Social Security Act deprive s them of their Social Security Retirement benef its just beca

use they want to avoid Med i ca re P ar t A. I nasmuch as the Medica re Act is part of the Social Security Act, this arg ument is not entirely acc urate

. But the point that the S ocial S ecur ity Act, without ref ere nce to Medi car e P art A, does not specific ally state t hat it req u i re s foreg oing Social Security Retirement benef its in order to avoid Medica re Part A is a leg itimate one. The point is sufficie nt to require the Court’s attention and consider the matter at leng th to ensure the Sec reta ry is corre ct. The i s s u e fo r Plaintiffs is the conseque nce of being “entitled” to Medica re Part A,

more than the entitlement itself. I f they could be entitled but de cline, they would be happy , just a s

-10-one can decline Social Security Retirement benef i t s b y n o t apply ing for them. Unfortuna tely for Plaintiffs, the Medica

re Act is very clea

r that persons entitled to Social Security Retirement benef its,
i.e. , of an ag e and work history and application there fore , are immediately and automatically entitled to Medicar e Part A be nefits upon their sixt y -fifth birthday s.

That Medica

re entitlement has very specific conseque nces fo r a retire d Fe dera l employ ee: I f a Fe dera l retire e who has attained ag e 65 is “not cover ed” by Medica re Part A, perha

ps beca use he withdrew his application for Social Security Retirement benef its, his FEH B “plan, other than a prepa

y ment plan descr ibed in” 5 U. S

. C

. § 8 9 0 3 (4), “may not provide benef its

. . . to pay a char g e imposed by any health car e provider, for inpatient hospital service s whi ch ar e covered for
purposes of benef

it pay ments” by Medi ca re P ar t A, “to the extent that such char g e exceeds applicable limit ations on hospital char g es established fo r M ed i ca re purposes.” 5 U.S.C. § 8904(b)( 1)(A)

. Thus, even if Plaintiffs wer e to fore g o and repa y all Social Security Retirement benef its, their FEH B- paid benef its would be no more, and no less, than what Medica re Part A would provide. 5 Plaintiffs arg ue that “entitled” to Social Security Retirement benef its does not mean “re quired to acc ept” so that “entitled” t o M ed i ca re Part A benef its does not mean “re quired to

acc ept.” Whil e the Plaintiffs’ plain-Eng lish rea ding of the word “entit l ed ” h as its attrac tions, in
context the Medica

re “entitled” does not actua lly mean “ca pable of being reje cted.” An individual is “entitled” to Social Security Retirement benef its only after he has worke d the requisite quarte rs, attained ag e 62 (or more), and filed an application

. See 42 U.S.C. § 402. There being no aff irmative

Def endants re cog nize that Pl aintiff Kr aus is exempted from 5 U.S.C. § 8904(b)(1) (A) 5 beca use he w as enr olled in a pre pay ment plan desc ribed in 5 U.S.C. § 8903(4). De fs.’ Supplemental Br ief [Dkt. # 48] at 2. -11-filing of an application nece ssary for a Medica re Part A enti tlement, it is a differ ent ty pe of entitlement beca

use of its automatic nature

. The Medica re Part A entitlement is tied exclusively to the fulfilment of two require ments: (1) rec eiving Social Security Retirement benef its; and (2) being
ag e 65 – the r emoval of e ither having the ef fec t of disestablishing that e ntitlement. Plaintiffs would rea d “entitled” to require either an application to enroll in Medica re Part A or at least an opportunity to dis-enroll beca use they define “entitled” to mean: “to g ive leg al rig ht or leg al title to , q u al i fy [one] for something; furnish with proper g rounds for seeking or cla i m i n g s o m et h i ng .” Pls.’ Mem. in Support of its Mot. for Summ. J

. [Dkt. #39-1] at 13 (citing Fagner v. Hec kler , 779 F. 2d 541, 543 (9th Cir. 1 9 8 5) (citing W ebster’s Third New International Di cti onary 758 (1976)) ). Congr ess knows how to write such a provision and, in fac t, did so for
persons who are not entitled to Medica re Part A but have (1) enrolled in Medica re Part B and (2) are citizens or have resided for five y ear s’ continuous residenc e in the United States as aliens lawfully admitted for permane nt residenc e. See 42 U.S.C. § 1395 i -2. S uch per sons must “enroll” and pay premiums for Medica

re Part A cover ag e. I n contra st, as Plaintiffs acknow ledg e, they are “entitled”
to Medica

re Part A without enrollment beca use they ar e 6 5 and are rec eiving Social Security Retirement benef

its. Requiring a mecha

nism for Plaintiffs and others in their sit u at i o n to “disenroll” would be contra

ry to cong ressional intent, which was to provide “ mandatory ” benef its under Medica re Part A for those re ce iving Social Security Retirement benefits. See Bowen , 476 U.S. at 674-75. V

. CONCLUSION

Plaintiffs are trapp ed i n a governme nt prog ram intended for their benef it. They disag ree and wish to esca pe. The Court can find no l o o p h o l e o r require ment that the Secre tary

-12-provide such a pathway

. Def endants’ Motion for Summary J udg ment [Dkt. # 42], which was previously denied without prejudice , is rec onsidered and will be g rante d and Plaintiffs’ Motion for Sum m ar y J udg ment [Dkt. # 51] will be denied. A memorializing Orde r acc ompanies this Memorandum Opinion.

Date: Ma rch 16, 2011 /s/ ROSEMARY M. COL L YER United States District J udg e

-13-