No Shortcuts Around Medicare’s Administrative Review Scheme: The Eleventh Circuit Fortifies § 405(g) Exclusivity in Bishins v. HHS

1. Introduction

Larry V. Bishins, a Medicare beneficiary and licensed attorney proceeding pro se, sued the Secretary of Health and Human Services (HHS) after Medicare stopped paying for the supplies associated with his Continuous Positive Airway Pressure (CPAP) machine. His multi-count complaint sought injunctive, mandamus and declaratory relief, damages for alleged constitutional violations, and records under the Freedom of Information Act (FOIA). The district court dismissed every count and denied further leave to amend. On appeal, the Eleventh Circuit affirmed in full.

Key issues on appeal were:

Whether 42 U.S.C. § 405(g) and (h) bar federal-question, mandamus or declaratory jurisdiction over Medicare disputes that have not reached a final agency decision.
Whether a beneficiary may bypass administrative exhaustion by styling the claim as constitutional or seeking non-monetary relief.
Whether partial production of records under FOIA constitutes “constructive exhaustion.”
Whether § 1983 or Bivens actions lie against the Secretary for alleged due-process and equal-protection violations arising from Medicare administration.

2. Summary of the Judgment

The Eleventh Circuit held:

Section 405(g) furnishes the exclusive route to federal court for claims “arising under” the Medicare Act, regardless of the relief sought; thus, Bishins’ injunctive, mandamus and declaratory claims were jurisdictionally barred absent a final decision by the agency.
Bishins had not exhausted the Medicare administrative process—he still had review available before the Medicare Appeals Council (MAC)—so no “final decision” existed.
The FOIA claim failed because Bishins neither actually exhausted (he did not pursue an administrative appeal after the agency’s disclosure) nor constructively exhausted (he waited for, and received, a late response).
Section 1983 does not reach federal actors, and the Court declined to extend Bivens into the Medicare context, citing the comprehensive remedial scheme Congress created.
Because further amendment would be futile, dismissal without leave to amend was proper.

3. Analysis

3.1 Precedents Cited and Their Influence

Heckler v. Ringer, 466 U.S. 602 (1984) – The Supreme Court’s touchstone for channeling claims through § 405(g) even when plaintiffs seek declaratory or injunctive relief. The Eleventh Circuit relied heavily on Ringer to reject jurisdictional work-arounds.
Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1 (2000) – Reconfirmed that § 405(h) bars federal-question jurisdiction for Medicare disputes, extending the reach beyond routine benefit claims.
Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986) – Carved a narrow exception for “substantial constitutional challenges” to the statute itself. The panel distinguished Michigan Academy, noting Bishins challenged only individual benefit decisions.
Schweiker v. Chilicky, 487 U.S. 412 (1988) – Declined to recognize a Bivens remedy where Congress created a detailed benefits-review scheme. The Eleventh Circuit used Chilicky to foreclose Bivens in the Medicare realm.
Taylor v. Appleton, 30 F.3d 1365 (11th Cir. 1994) – Established the Eleventh Circuit’s FOIA exhaustion framework; invoked here to dismiss the FOIA count.
Ziglar v. Abbasi, 582 U.S. 120 (2017) – Directed courts to view new Bivens extensions as “disfavored”; cited to reinforce refusal to expand the remedy.

3.2 Legal Reasoning

The Court’s reasoning turned on statutory interpretation and sovereign-immunity principles.

Section 405(g)/(h) Exclusivity. Congress incorporated these Social Security provisions into the Medicare Act via § 1395ii. Section 405(h) explicitly bars actions under 28 U.S.C. §§ 1331 & 1346 “to recover on any claim arising under” the Act, and § 405(g) supplies the sole waiver of immunity—but only after a “final decision” by the agency. Because Bishins was still mid-stream in the six-level administrative ladder, both elements of jurisdiction—sovereign immunity waiver and finality—were missing.
Futility & Waiver Exceptions Rejected. The panel concluded the Secretary had not waived exhaustion, and Bishins’ circumstances (he could still file a fresh claim or continue the MAC appeal) did not satisfy the narrow Heckler futility/irreparable-injury exception.
Mandamus and Declaratory Relief. Even if mandamus theoretically survives § 405(h), Heckler labels payment decisions “discretionary,” defeating the “ministerial duty” element of mandamus. Declaratory relief adds no independent jurisdiction.
FOIA Exhaustion. By choosing to await an overdue answer, Bishins triggered the “actual” exhaustion pathway, requiring an administrative appeal of any partial denial before suing. His belief that more documents existed did not excuse that obligation.
§ 1983 / Bivens. The Secretary, sued in his official capacity, represents the United States; sovereign immunity bars damages absent waiver. Under Chilicky and Abbasi, courts will not imply a constitutional damages remedy where Congress provides an “elaborate, carefully crafted” alternative process.
Leave to Amend. Amendments could not cure non-exhaustion or sovereign-immunity defects; thus, further leave would be futile.

3.3 Impact on Future Litigation

Reinforced Channeling Doctrine. Beneficiaries, providers and practitioners within the Eleventh Circuit face an even higher bar to sidestep Medicare’s administrative process. Creative pleadings invoking constitutional language, mandamus, or FOIA are unlikely to survive unless the claimant can show a clear final agency decision or falls within the narrow Michigan Academy exception.
Narrowing FOIA Strategies. Litigants dissatisfied with partial disclosures must now appeal inside the agency before heading to court, notwithstanding delayed responses.
Barrier to Bivens Expansion. By explicitly folding Medicare disputes into Chilicky’s rationale, the opinion contributes to the nationwide trend curtailing constitutional-tort suits against federal officials.
Practical Guidance for Providers. Durable-medical-equipment suppliers and physicians should expect patients to funnel grievances through claims resubmission and administrative appeals, not through direct lawsuits.

4. Complex Concepts Simplified

§ 405(g) “Final Decision”. Think of this as the Supreme Court of Medicare. You get to federal court only after climbing every rung of the agency ladder—initial determination, redetermination, QIC reconsideration, ALJ hearing, and MAC review.
§ 405(h) “Channeling”. A legal traffic cop diverting all Medicare-related claims into the administrative lane. No detours via general federal-question statutes.
Mandamus (28 U.S.C. § 1361). An extraordinary remedy that forces an official to perform a nondiscretionary duty. If the agency retains discretion—like deciding whether criteria for a CPAP machine are met—mandamus is unavailable.
Sovereign Immunity. The United States cannot be sued unless it unequivocally says so. Statutory waivers (like § 405(g)) are strictly construed.
Bivens Action. A court-created damages suit against federal officials for certain constitutional wrongs. The Supreme Court has approved only three contexts (search & seizure, gender discrimination, prisoner medical care) and warns courts against creating new ones.
Actual vs. Constructive FOIA Exhaustion. – Actual: You appealed within the agency and got a final FOIA denial.
– Constructive: The agency ignores you past statutory deadlines, but you sue before waiting for a response. Waiting for the late response forfeits constructive exhaustion.

5. Conclusion

The Eleventh Circuit’s opinion in Larry v. Bishins v. U.S. Secretary of HHS does not blaze new territory so much as cement the barricades Congress erected around Medicare litigation. By refusing every jurisdictional workaround—be it mandamus, declaratory relief, FOIA, § 1983, or Bivens—the Court underscores that the administrative process is not an optional procedural prelude but the exclusive gateway to federal court review. For practitioners, the message is unmistakable: exhaust first, sue later, and abandon hopes of constitution-based shortcuts. For beneficiaries, the decision can feel unforgiving, yet it preserves a uniform, expert-driven mechanism for resolving the complex medical-coverage questions that the Medicare Act entrusts to HHS. Going forward, litigants within the Eleventh Circuit—and likely beyond—will find that Bishins stands as a robust reaffirmation of administrative primacy in the Medicare arena.