Fuentes v. Azar

Decision Date17 June 2020
Docket NumberCase No. 19-cv-1965 (APM)
Parties Edwin L. FUENTES, Plaintiff, v. Alex M. AZAR II et al., Defendants.
CourtU.S. District Court — District of Columbia

468 F.Supp.3d 83

Edwin L. FUENTES, Plaintiff,
v.
Alex M. AZAR II et al., Defendants.

Case No. 19-cv-1965 (APM)

United States District Court, District of Columbia.

Signed June 17, 2020


468 F.Supp.3d 85

Mark W. Bina, Quarles & Brady, LLP, Washington, DC, for Plaintiff.

April Denise Seabrook, U.S. Attorney's Office for the District of Columbia, Sean Michael Tepe, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

Amit P. Mehta, United States District Judge

468 F.Supp.3d 86

I. INTRODUCTION

Plaintiff Edwin L. Fuentes was convicted of health care fraud and attempted tax evasion in January 2018. As a result of his conviction, the Inspector General of the Department of Health and Human Services excluded Plaintiff from participating in federal health care programs for 15 years. Plaintiff lodged an administrative appeal of that decision and filed several motions seeking comprehensive access to hearing records from prior exclusion cases, which the administrative law judge denied. Before appealing the denial through the ordinary administrative channels, Plaintiff filed the instant action seeking mandamus relief ordering Defendants to grant Plaintiff access to "all records of any proceedings" brought under the civil monetary penalty and exclusion provisions of the Social Security Act, as well as a declaratory judgment that Defendants’ failure to provide such access is contrary to law and unconstitutional. Defendants move to dismiss Plaintiff's Complaint, arguing among other things, that Plaintiff has not established the jurisdictional prerequisites for mandamus relief and has not levied his other challenges through the required channels. The court agrees, and for the reasons that follow, grants Defendants’ motion.

II. BACKGROUND

A. Legal Background

The Inspector General of the United States Department of Health and Human Services ("HHS"), acting pursuant to authority delegated by the Secretary of HHS, see 53 Fed. Reg. 12,993 (April 20, 1988), is required to exclude individuals from participating in federal healthcare programs who have been convicted of, among other things, "a criminal offense related to the delivery of an item or service" under Medicare or a state health care program, 42 U.S.C. § 1320a-7(a)(1), or a felony related to healthcare fraud, id. § 1320a-7(a)(3). Unless certain exceptions apply, the minimum period of exclusion for these crimes is five years, id. § 1320a-7(c)(3)(B), and the Inspector General may lengthen that period based on aggravating factors, see 42 C.F.R. § 1001.102(b).

An individual whom the Inspector General excludes may request a hearing before an administrative law judge ("ALJ") in the Civil Remedies Division of HHS's Departmental Appeals Board. See 42 U.S.C. § 1320a-7(f)(1) ; 42 C.F.R. § 1005.2(a). She may challenge "[t]he basis for the imposition of the sanction," and, if the term is longer than the five-year minimum, "[t]he length of exclusion." See 42 C.F.R. § 1001.2007(a). The parties to such proceeding are the petitioner and the Inspector General. Id. § 1005.2(b). Either party "may make a request to another party for production of documents for inspection and copying which are relevant and material to the issues before the ALJ," and if the request is refused, she may file a motion to compel discovery. Id. § 1005.7(a), (e)(1). The opponent of discovery may, in turn, file a motion for a protective order, which the ALJ may grant if she finds the requested discovery is irrelevant, unduly costly or burdensome; will unduly delay the proceedings; or seeks privileged information. Id. § 1005.7(e)(1)–(2); see also id. § 1005.4(b)(6)–(7) (empowering the ALJ to "[r]ule on motions and other procedural matters" and "[r]egulate the scope and timing of documentary discovery").

A petitioner may appeal an ALJ's adverse determination to the Departmental Appeals Board's Appellate Division ("Appellate Division"). Id. § 1005.21(a). The

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Appellate Division's decision becomes final and binding 60 days after the parties are served with the decision. Id. § 1005.21(j). A party may seek judicial review within that timeframe. Id. § 1005.21(k)(1). Judicial review is governed by section 405(g) of the Social Security Act ("SSA"). See 42 U.S.C. § 1320a-7(f)(1) (providing that "any individual or entity that is excluded (or directed to be excluded) from participation under this section is entitled to reasonable notice and opportunity for a hearing thereon by the Secretary ..., and to judicial review of the Secretary's final decision after such hearing as is provided in section 405(g) of this title").

B. Factual Background

On April 30, 2018, the Inspector General notified Plaintiff that he was being excluded from participating in Medicare, Medicaid, and all other federal healthcare programs on the basis of two criminal convictions for healthcare fraud and attempted tax evasion. See Compl., ECF No. 1 [hereinafter Compl.], ¶¶ 82–83; see also id. , Exs. A–H, ECF No. 1-2 [hereinafter Compl. Exhibits], Ex. A; Judgment, ECF No. 28, USA v. Fuentes , No. 4:17-cr-00009-JLK-1 (W.D. Va. Jan. 9, 2018). The Inspector General increased the exclusionary period from five to 15 years based on three aggravating factors. Compl. Exhibits, Ex. A; Compl. ¶ 84. Plaintiff requested administrative review of his exclusion on July 2, 2018. Compl. ¶ 85. Later that month, an ALJ conducted a prehearing conference and set a briefing and evidentiary schedule. Id. ¶ 86.

Plaintiff's November 2018 Motion and Request. On November 12, 2018, Plaintiff filed a motion before the ALJ seeking "full access" to the Departmental Appeals Board's E-File Database—a non-public electronic filing and document management system, which contains records associated with exclusion proceedings, as well as certain other matters before the Board. See Compl. Exhibits, Ex. B [hereinafter Mot. for Access], at 1–2 (PDF pp. 3–4); Compl. ¶¶ 64, 89. On the same date, Plaintiff filed a "Request for Discovery," asking that the Inspector General provide, among other things, "[a]ll final Administrative Law Judge or Departmental Appeals Board exclusion decisions issued in 2018," and "[a]ll non-public Administrative Law Judge rulings interpreting or applying any part, subpart, or regulation found in section 1005, Title 42, Code of Federal Regulations relating to discovery, evidentiary rulings, hearing procedures, or witness testimony." Compl. Exhibits, Ex. C. at 5 ¶¶ 6–7 (PDF p. 17); Compl. ¶ 92. In a November 30, 2018 order, the ALJ concluded that he "had no authority to grant or deny access to case records in E-File," denied Plaintiff's discovery requests because Plaintiff had not explained how the ALJ opinions and other materials he sought were relevant and material to his appeal, and granted the Inspector General's request for a protective order, thereby "relieving [him] of any responsibility to produce documents responsive" to the discovery requests at issue. See Compl. Exhibits, Ex. E, at 1–9 (PDF pp. 24–32); Compl. ¶ 96.

Plaintiff's January 2019 Motion. On January 29, 2019, Plaintiff filed a "Motion to Inspect Prior Records," seeking to "inspect and copy" records from various cases before the Departmental Appeals Board. See Compl. Exhibits, Ex. F. (PDF p. 33); Compl. ¶ 99. The ALJ denied his motion on May 14, 2019, noting that the records Plaintiff requested were either publicly accessible on the agency's website or non-precedential and therefore not relevant or material. Compl. Exhibits, Ex. G. at 21 (PDF p. 59); Compl. ¶ 100. The ALJ also rejected Plaintiff's additional argument that he was entitled to the records pursuant

468 F.Supp.3d 88

to 42 C.F.R. § 1005.18(c), which provides that records from exclusion appeals "may be inspected and copied (upon payment of a reasonable fee) by any person, unless otherwise ordered by the ALJ for good cause shown." Compl. Exhibits, Ex. G. at 21 (PDF p. 59). This provision, the ALJ reasoned, does not grant a freestanding right of access to decisions in past or pending cases, and the "procedures for requesting access to those federal records" are set forth in the Freedom of Information Act ("FOIA") and HHS's implementing regulations. Id. at 21–22 (PDF pp. 59–60).1

C. Procedural History and Related Proceedings

On July 1, 2019, Plaintiff brought this action against Defendants Alex M. Azar II, the Secretary of HHS, Joanne M. Chiedi, the then-acting Inspector General of HHS,2 and Constance B. Tobias, the Chairperson of HHS's Departmental Appeals Board. See Compl. ¶¶ 13–18. Plaintiff contends that he needs full access to the Departmental Appeals Board's E-File Database to mount his appeal of the Inspector General's exclusion decision. Id. ¶¶ 3, 6. Plaintiff's Complaint includes three counts. In Count 1, Plaintiff claims that Defendants have violated a clear duty to provide him access to the records, and seeks a writ of mandamus under 28 U.S.C. § 1361 requiring Defendants to grant Plaintiff "access to the [Departmental Appeals Board] E-File System and make available to [Plaintiff] all records of any proceedings under sections 1128 and 1128A of the SSA"—the...

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