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940 F2d 669 Pasha v. Secure Horizons a Division of Pacificcare Inc

940 F.2d 669

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Ali Asghar PASHA, Plaintiff-Appellant,
v.
SECURE HORIZONS, A DIVISION OF PACIFICCARE, INC., Defendant-Appellee.

No. 90-56256.

United States Court of Appeals, Ninth Circuit.

Submitted July 23, 1991.*
Decided July 26, 1991.

Before PREGERSON, D.W. NELSON and REINHARDT, Circuit Judges.

1

MEMORANDUM**

2

Ali Asghar Pasha appeals pro se the district court's order dismissing his complaint without prejudice for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1).1 We review an order to dismiss under Rule 12(b)(1) de novo. Kruso v. Internat'l Tel & Tel Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 110 S.Ct. 3217 (1990).

3

Pasha filed a complaint in the district court against the appellee, Secure Horizons. Secure Horizons is a division of PacificCare, Inc., a federally qualified health maintenance organization ("HMO") under the Public Health Service Act (the "Act"), as amended. See 42 U.S.C. Sec. 300e-300e-17. PacifiCare contracts with the federal government to provide medicare benefits to eligible subscribers of its Secure Horizons Plans.

4

Pasha enrolled in Secure Horizons effective July 1, 1986. His membership in Secure Horizons was terminated in December, 1989. Pasha alleges that the termination was discriminatory, and due to his race, religion and handicap. Secure Horizons asserts that the termination was due to Pasha's failure to pay his membership fees.2 The district court held that Pasha failed to exhaust the grievance procedures established by the Act, and thus, failed to establish subject matter jurisdiction.

5

The Act requires participating HMO's to "be organized in such a manner that provides meaningful procedures for hearing and resolving grievances between the health maintenance organization ... and the members of the organization." 42 U.S.C. Sec. 300e(c)(5). A member who disagrees with the termination decision by the HMO has "the right to have any such disenrollment matter heard under the grievance procedures established pursuant to section 1301(c)(7) of the Public Health Services Act." See 42 C.F.R. Sec. 417.225(1). "Under the exhaustion doctrine, no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." SEC v. G.C. George Sec., Inc., 631 F.2d 685, 688 n. 4 (9th Cir.1981). Compliance with the exhaustion doctrine is within the sound discretion of the court unless application of the doctrine is statutorily mandated. See id.

6

Here, Pasha has failed to have his disenrollment matter heard under the grievance procedure established under the Act. Under these circumstances, we conclude that the district court did not err in dismissing Pasha's complaint for lack of subject matter jurisdiction.3

7

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Cir.R. 34-4. Accordingly, Pasha's motion for oral argument is denied

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

Ordinarily, an order dismissing a complaint but not the underlying action is not a final, appealable order under 28 U.S.C. Sec. 1291. Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171-72 n. 1 (9th Cir.1984). An exception to this rule applies, however, when it appears that the district court intended to dispose of the action. Id. The court's language in the order of dismissal indicates that it intended to dismiss Pasha's entire action. Thus, we have jurisdiction over this appeal

2

Secure Horizons further asserts that the Act specifically provides for the termination of members who fail to pay such a premium. See 421 U.S.C. Sec. 417.225

3

Because we find that the district court did not abuse its discretion by requiring Pasha to exhaust his administrative remedies, we need not determine whether the Act requires the mandatory application of the exhaustion doctrine under these circumstances