Messer v. U.S. Department of Health & Human Services

446 F. App'x 50

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 27, 2011
• Docket: 10-56353
• Status: Unpublished

Opinion

MEMORANDUM ***

Dorothy Calabrese, M.D., and her patient Paul Messer, appeal pro se from the district court’s order dismissing their action alleging that Managing Administrative Law Judge Koldeway rendered a decision when she was not the judge who held the administrative hearing, in violation of plaintiffs’ rights under the U.S. Constitution and federal law. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Uhm v. Humana, Inc., 620 F.3d 1134, 1139 (9th Cir.2010), and we affirm.

The district court properly dismissed the action because plaintiffs’ allegations concerning Judge Koldeway’s decision failed to state a claim. See 5 U.S.C. § 554(d) (“The employee who presides at the reception of evidence ... shall make the recommended decision or initial decision ... unless he becomes unavailable to the agency.”). Contrary to plaintiffs’ contention, the outcome did not turn on credibility determinations.

Plaintiffs’ remaining contentions are unpersuasive.

AFFIRMED.

*** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.