Ferguson v. Centers for Medicare and Medicaid Services

Background

Rollington Ferguson, a medical practitioner enrolled in Medicare since 1990, sued the Centers for Medicare and Medicaid Services (CMS) seeking review of a decision by the Departmental Appeals Board of the U.S. Department of Health and Human Services. He alleged violations of due-process rights under the Fifth and Fourteenth Amendments and unjust enrichment.

Ferguson reapplied to validate his Medicare billing privileges on December 13, 2017. Noridian, a Medicare administrative contractor, told him on December 17 that his application was incomplete. Ferguson alleged that the message went to his spam folder. After Noridian rejected the application on January 20, 2018, it approved a new application but set February 12, 2018, as the effective participation date and stopped payments for the period between January 20 and February 12.

Noridian told Ferguson that he could request reconsideration of the effective date within 60 days and that the request had to be signed and dated. Noridian returned Ferguson’s first request because it was unsigned and declined to process a second request because it was filed after the deadline. An Administrative Law Judge concluded that Ferguson had no right to a hearing because he had never received a reconsideration determination. The Administrative Law Judge also ordered Ferguson to use the Civil Remedies Division’s electronic filing system unless granted a waiver.

The Departmental Appeals Board affirmed the Administrative Law Judge’s dismissal on June 20, 2019. The Board sent the decision through the electronic filing system and told Ferguson that he had 60 days to file a civil action seeking review. Ferguson filed this action on August 22, 2019, 63 days after the Board’s decision.

Motion and Arguments

CMS moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. CMS argued that Ferguson filed after the 60-day deadline and had not shown grounds for equitable tolling, a doctrine that can extend a filing deadline when the plaintiff acted diligently but an extraordinary circumstance beyond the plaintiff’s control caused the delay.

Ferguson argued that the deadline did not begin on June 20 because CMS had not proved that he received the Board’s decision between June 20 and June 22, 2019. He contended that, without proof of receipt by certified mail or email, the filing period had not begun.

Court’s Analysis

The court held that the complaint was filed outside the 60-day period. It reasoned that Ferguson had agreed to electronic service and the electronic filing system’s requirements, which made him responsible for checking notices and ensuring that spam filters did not block them. The Board transmitted its decision through that system on June 20, 2019.

The court also rejected Ferguson’s request to infer that he did not receive the email on the day it was sent. Ferguson did not allege that he failed to receive the decision that day, that delivery was delayed, or that any facts supported the proposed inference. The court concluded that dismissal was warranted unless equitable tolling applied.

The court found that equitable tolling did not apply. Ferguson did not address CMS’s argument on tolling and did not allege extraordinary circumstances that prevented him from filing within 60 days. The court therefore concluded that the filing period was not extended.

Disposition

The court granted CMS’s motion to dismiss. It determined that the defect involving the 60-day filing deadline could not be remedied by allowing Ferguson to amend the complaint. The action was dismissed with prejudice, and the Clerk was directed to close the case. Judge Yvonne Gonzalez Rogers signed the order.