Cordero v. The Secretary of Health and Human Services

Background

Dr. Richard Cordero, Esq., a licensed attorney proceeding without a lawyer, brought the action under federal-question jurisdiction. He sought review under 42 U.S.C. § 405(g) of the Council of Medicare Appeals’ denial of requested medical coverage, along with money damages. The defendants included the Secretary of HHS, Administrative Law Judges Dean Yanohira and Loranzo Fleming, other HHS and Office of Medicare Hearings and Appeals officials and employees, private insurance companies, and private-company personnel.

The court had previously allowed Cordero to proceed without prepaying filing fees. It therefore screened the complaint under the statute governing fee-free cases, which requires dismissal of claims that are frivolous, fail to state a claim, seek money from an immune defendant, or fall outside the court’s subject-matter jurisdiction. The court noted that, although pleadings by people representing themselves are generally read generously, Cordero was an attorney and was not entitled to the usual special consideration given to nonlawyer self-represented litigants.

Claims Against Administrative Law Judges

The court dismissed Cordero’s claims against ALJs Yanohira and Fleming. It held that judges and officials performing comparable judicial functions are absolutely immune from damages claims for actions taken within their judicial responsibilities. Cordero did not allege facts showing that either ALJ acted outside that role or without jurisdiction. The court therefore dismissed these claims because they sought money from immune defendants and, consequently, treated them as frivolous under the fee-free-case statute.

Claims Against HHS and OMHA Officials

The court dismissed claims for money damages against the specified heads, directors, and officers of HHS divisions and OMHA, as well as HHS and OMHA employees David Eng, John Colter, Jon Dorman, Sherese Warren, Erin Brown, Andrenna Taylor Jones, James Griepentrog, and Denise Elosh. The court applied sovereign immunity, which generally prevents federal courts from hearing damages suits against the federal government, its agencies, and employees sued in their official capacities unless the government has waived that protection. The court concluded that HHS and OMHA were protected and dismissed these claims under the fee-free-case statute and, consequently, for lack of subject-matter jurisdiction.

The court declined to treat the complaint as asserting claims under the Federal Tort Claims Act because Cordero did not name the United States as a defendant, did not allege that he had completed the required administrative process, and did not indicate that he intended to bring such a claim. The court also declined to treat the allegations as constitutional claims against the officials under the Supreme Court’s implied damages remedy for certain federal-official misconduct. The court found no allegations of personal involvement by the named officials, other than allegations that Denise Elosh filed a complaint with Federal Protective Services after Cordero allegedly harassed her; it found no facts showing that Elosh violated Cordero’s federal constitutional rights.

Claims Against Private Defendants

The court dismissed Cordero’s claims against the Health Insurance Plan of Greater New York; Karen Ignagni; various EmblemHealth personnel; and the President, CEO, and Medicare-project director of Maximus. Under the rule requiring a complaint to provide a short and plain statement showing entitlement to relief, the court found that Cordero alleged no facts explaining what these defendants did that violated state or federal law. The court noted that many of the defendants appeared only in the caption.

The court granted Cordero 30 days’ leave to replead these claims in an amended complaint. It stated that any amended complaint must provide a short and plain statement showing entitlement to relief against each defendant and must comply with the rules governing joinder of claims and parties. The opinion does not state that the court granted leave to replead the claims dismissed against the federal defendants.

Service and Electronic Filing

The court directed service on the Secretary of HHS, EmblemHealth, and Maximus Federal Services through the U.S. Marshals Service. It instructed the Clerk of Court to prepare the required service forms, issue summonses, and provide the Marshals Service with the necessary papers. The court extended the service period so that the complaint must be served within 90 days after summonses are issued, rather than within 90 days of the complaint’s filing.

The court also granted Cordero’s motion for permission to file documents electronically. After registration, court and party documents would be served through electronic notice to his designated email address. The court instructed Cordero to notify it in writing of any address change and certified that any appeal from the order would not be taken in good faith, denying fee-free status for purposes of an appeal.

Disposition

The court dismissed the claims against ALJs Yanohira and Fleming based on judicial immunity; dismissed the claims against the specified HHS and OMHA officials and employees based on sovereign immunity and lack of subject-matter jurisdiction; and dismissed the claims against the listed private defendants for failure to state a claim, while granting 30 days’ leave to replead those private-defendant claims. It ordered service on the Secretary of HHS, EmblemHealth, and Maximus Federal Services, and granted permission for electronic filing.