United States District Court, D. Maryland
Lipton Hollander United States District Judge
Patricia Weiss, plaintiff in her individual capacity and as
representative of the estate of her deceased husband, Ronald
A. Weiss (the “Estate”) (collectively,
“plaintiffs”), filed suit against Defendants
Thomas Price, M.D., Secretary, United States Department of
Health and Human Services (the “Secretary”), and
the United States Department of Health and Human Services
(the “Agency”). ECF 1-1 (Complaint). Pursuant to
the Declaratory Judgment Act, 28 U.S.C. § 2201,
plaintiffs seek a declaration that the United States
Government “has no legal interest in the escrowed
settlement funds recovered by Mary Weiss as a result of the
wrongful death of her husband, Ronald A. Weiss.”
Id. at 11. Ms. Weiss also asks this Court to (1)
reverse findings made by the Medicare Appeals Council, and
(2) award Ms. Weiss “an interest penalty” due to
the length of time the settlement funds have been escrowed.
Id. at 11-12.
have filed a “Partial Motion to Dismiss Plaintiff Mrs.
Weiss's Individual Claims” (ECF 12), along with a
memorandum of law (ECF 12-1) (collectively,
“Motion”). In particular, the Motion seeks to
dismiss each of Ms. Weiss's claims brought in her
individual capacity. The Motion has been fully briefed,
no hearing is necessary to resolve it. See Local
reasons that follow, I will grant defendants' Motion.
However, both sides agree that the Estate, as the affected
beneficiary, is legally entitled to appeal the determination
of the Medicare Appeals Council in this Court. See
ECF 17 at 9 n.2; ECF 21 at 8. Therefore, although I shall
grant the Motion, this case will proceed as to the
relevant facts in this matter are essentially uncontested.
Ms. Weiss's late husband, Ronald A. Weiss (“Mr.
Weiss” or the “Decedent”), was a Medicare
recipient. ECF 1-1, ¶ 2. In 2007, Mr. Weiss died at a
Maryland hospital during a necessary heart operation.
Id. ¶¶ 14, 15. Thereafter, Ms. Weiss filed
a medical malpractice lawsuit in state court in Maryland.
Id. ¶ 11. The medical malpractice lawsuit
asserted two distinct claims: a wrongful death claim on
behalf of Ms. Weiss in her individual capacity, and
survivorship claims for conscious pain and suffering and
medical expenses, asserted by Ms. Weiss on behalf of the
Estate. Id. ¶¶ 16-18. The parties to the
medical malpractice lawsuit reached a confidential settlement
before trial. Id. ¶ 24. Ms. Weiss and the
Estate then filed a “Petition for Court Approval of
Settlement and Allocation, ” asking the state court to
allocate the settlement proceeds between Ms. Weiss and the
Estate, as plaintiffs to the medical malpractice lawsuit.
Id. ¶¶ 25, 29.
Ms. Weiss sent a copy of that petition to the Medicare
Secondary Payer Recovery Contractor, the Department of Health
and Human Services' Center for Medicare Services
(“Medicare”) was not a party to the medical
malpractice lawsuit and did not participate in the
proceeding. Id. ¶¶ 26, 27, 29,
In accordance with plaintiffs' request in the petition,
the state court judge determined that the Estate had no
recoverable damages, and allocated all of the settlement
proceeds to Ms. Weiss in her individual capacity.
Id. ¶¶ 28, 30, 32.
Ms. Weiss and the Estate notified Medicare that a
confidential settlement had been reached. Id. ¶
33. Upon receipt of the notice, Medicare made a claim against
the Estate for $26, 404.20 in medical expenses that it had
paid on the Decedent's behalf. Id.
¶¶ 34, 36. To comply with Maryland law,
Ms. Weiss's attorney escrowed those funds pending
resolution of Medicare's claim. Id. ¶ 37.
The Estate appealed Medicare's claim through the
administrative appeals process, citing the state court's
allocation of the settlement to Ms. Weiss's wrongful
death claim, but the Medicare Appeals Council reached a
contrary conclusion and ruled in Medicare's favor.
Id. ¶¶ 38-39.
lawsuit followed. The Estate appeals Medicare's ruling
and Ms. Weiss seeks a declaratory judgment that the escrowed
settlement funds belong to Ms. Weiss, not to Medicare. ECF
Subject Matter Jurisdiction
contend that this Court lacks jurisdiction over the claims
Ms. Weiss asserts in her individual capacity. See
generally ECF 12. Because “a court that lacks
jurisdiction has no power to adjudicate and dispose of a
claim on the merits, ” S. Walk at Broadlands
Homeowner's Ass'n, Inc. v. Open Band at Broadlands,
LLC, 713 F.3d 175, 185 (4th Cir. 2013), the
jurisdictional issue is necessarily antecedent to any
consideration of the merits. Under Federal Rule of Civil
Procedure 12(b)(1), the plaintiff bears the burden of
proving, by a preponderance of evidence, the existence of
subject matter jurisdiction. See Demetres v. East West
Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); see
also Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th
challenge to subject matter jurisdiction under Rule 12(b)(1)
may proceed either by a facial challenge, asserting that the
allegations pleaded in the complaint are insufficient to
establish subject matter jurisdiction, or a factual
challenge, asserting “‘that the jurisdictional
allegations of the complaint [are] not true.'”
Kerns v. United States, 585 F.3d 187, 192 (4th Cir.
2009) (citation omitted) (alteration in original); see
also Buchanan v. Consol. Stores Corp., 125 F.Supp.2d
730, 736 (D. Md. 2001). In a facial challenge, “the
facts alleged in the complaint are taken as true, and the
motion must be denied if the complaint alleges sufficient
facts to invoke subject matter jurisdiction.”
Kerns, 585 F.3d at 192.
support of their facial challenge to subject matter
jurisdiction, defendants note that, “[a]bsent a waiver,
sovereign immunity shields the [federal] Government and its
agencies from suit.” FDIC v. Meyer, 510 U.S.
471, 475 (1994). Any waiver of sovereign immunity by Congress
must be express and unequivocal. Gomez-Perez v.
Potter, 553 U.S. 474, 491 (2008). The Declaratory
Judgment Act “plainly does not operate as an express
waiver of sovereign immunity . . . because it ‘neither
provides nor denies a jurisdictional basis for actions under
federal law, but merely defines the scope of available
declaratory relief.'” Muirhead v. Mecham,
427 F.3d 14, 17 n.1 (1st Cir. 2005) (citation omitted);
see Goldstein v. Moatz, 364 F.3d 205, 219 (4th Cir.
2004) (“If a declaratory judgment proceeding actually
constitutes a suit against the sovereign, it is barred absent
a waiver of sovereign immunity.”).
for Ms. Weiss to maintain her declaratory judgment action
against Medicare, a government agency, Ms. Weiss bears the
burden to establish an applicable waiver of sovereign
immunity. She argues that the waiver can be found in two
places: (1) the Administrative Procedures Act; and (2) the
fact that Defendants acted ...