This is Compendia case, a case of first impression under Shalala v. Illinois Council, 529 U.S. 1 (2000).

1. Can the U.S. Court of Appeals for the Ninth Circuit ("9th Circuit") sidestep all issues under Medicare, Part D by not looking behind a compendium's Medically Acceptable Indications ("MAI") also known as 'on or off label' when the evidence leads to an underlying false and misleading premise for a prescription, i.e., no rational basis also under Fifth Amendment, Due Process and Section 504 of the Rehabilitation Act of 1973 ("Sec. 504")? The medication, Serostim, as listed in a compendium requires that the patient also have HIV an unrelated condition that does not treat HIV, only lipodystrophy, a life threatening condition which prevents Petitioner from retaining lipids.

2.a Does Shalala v. Illinois Council, 529 U.S. 1 (2000), an exhaustion case, preclude Due Process and/or Sec. 504? Was it an abuse of discretion not to allow Petitioner to amend the Complaint as to a Sec. 504 claim or constitutional due process?

b. Does 42 U.S.C. § 405(h) - if it arises under the Social Security Act, mean that a beneficiary cannot pursue his Due Process and Sec. 504 rights when there is a false and fraudulent premise in HHS policy? Or does § 405(h) only bar actions under 28 U.S.C. §§ 1331 and 1346?

3. Can insurance carriers which are Medicare contractors, be sued for not making statutory exceptions under Medicare, Part D? Can HHS not permit statutory peer reviewed articles from the National Institutes of Health (NIH) into account and can the 9th Circuit prevent this evidence favorable to Petitioner to be considered in cross motions for summary judgment?

Can the U.S. Court of Appeals for the Ninth Circuit sidestep issues under Medicare Part D by not looking behind a compendium's Medically Acceptable Indications when the evidence leads to an underlying false and misleading premise for a prescription?