IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

JEFFREY D. COSBY, § 

BOP Register No. 33325-037, § 

 § 

Plaintiff, § 

 § 

V. § No. 3:22-cv-526-B-BN 

 § 

XAVIER BACERRA, § 

 § 

Defendant. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Plaintiff Jeffrey D. Cosby, a federal prisoner incarcerated in this district, 

brings this pro se action against the U.S. Secretary of Health and Human Services 

(the Secretary), in his official and individual capacity, seeking (1) a declaratory 

judgment “that he is ‘unenrollable’ in Medicare Parts A-D and thus not subject to any 

late enrollment penalties until such time as he is released from custody and no longer 

meets 42 USCS 402(x)’s definition of ‘confined’” and (2) injunctive (and possibly 

monetary) relief based on this declaration. Dkt. No. 3. Cosby neither paid the filing 

fee nor moved for leave to proceed in forma pauperis. But he did file a motion for 

summary judgment. See Dkt. Nos. 4-6. 

United States District Judge Jane J. Boyle referred Cosby’s lawsuit to the 

undersigned United States magistrate judge for pretrial management under 28 

U.S.C. § 636(b) and a standing order of reference. 

The undersigned enters these findings of fact, conclusions of law, and 

recommendation that the Court should dismiss this lawsuit for lack of subject matter 

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jurisdiction. 

Applicable Background 

Cosby, who is now older than 65, has been incarcerated since 2006 and is 

projected to be released in October of 2027. See Dkt. No. 3, ¶¶ 10, 11. Before turning 

65, he asked prison officials what he should do to enroll in Medicare Parts A and B 

and was informed “that Medicare Part B premiums need to be paid by prisoners while 

they are incarcerated” to avoid “late enrollment penalties when their incarceration 

ends.” Id., ¶¶ 12-14. Cosby now argues that this policy “constitutes an unjust 

hardship imposed on some of society’s most vulnerable individuals” – “elderly exprisoners” – and “is an incorrect interpretation of [the Social Security 

Administration’s] own governing statutes, in particular 42 USCS § 1395c as read in 

conjunction with 42 USCS § 402(x).” Id., ¶ 15 (cleaned up). 

Cosby further argues that 

[a] correct reading of these statutes would result in any “confined” 

individual being UNENROLLABLE in either Medicare Part A or Part 

B. 

A finding of “unenrollability” would thus alleviate the need for 

prisoners to attempt to enroll in Medicare Parts A and B while in prison 

which is appropriate since they are ineligible to receive any Medicare 

benefits while they are incarcerated because the [Federal Bureau of 

Prisons] bears all responsibility for inmates’ health care while they are 

in prison. 

Id., ¶¶ 15, 16. 

Legal Standards and Analysis 

“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power 

authorized by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) 

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(quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). They 

must therefore “presume that a suit lies outside this limited jurisdiction, and the 

burden of establishing federal jurisdiction rests on the party seeking the federal 

forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). 

Correspondingly, all federal courts have an independent duty to examine their own 

subject matter jurisdiction. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-

84 (1999) (“Subject-matter limitations ... keep the federal courts within the bounds 

the Constitution and Congress have prescribed. Accordingly, subject-matter 

delineations must be policed by the courts on their own initiative even at the highest 

level.” (citations omitted)). 

In support of federal subject matter jurisdiction, Cosby cites 28 U.S.C. § 1361, 

42 U.S.C. § 1395ff, 28 U.S.C. § 1331, and 42 U.S.C. § 405. 

I. The Court does not have mandamus jurisdiction. 

“Under 28 U.S.C. § 1361, district courts have original jurisdiction over ‘any 

action in the nature of mandamus.’” Mendoza-Tarango v. Flores, 982 F.3d 395, 398 

(5th Cir. 2020) (citation omitted). This “mandamus jurisdiction exists if the action is 

an attempt to compel an officer or employee of the United States or its agencies to 

perform an allegedly nondiscretionary duty owed to the plaintiff.” Id. (quoting 

Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 766 (5th Cir. 2011)). 

But, under its plain language, Section 1361 “does not grant jurisdiction to 

consider actions asking for other types of relief – such as injunctive relief,” since “[a]n 

injunction ‘is a remedy to restrain the doing of injurious acts’ or to require ‘the 

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undoing of injurious acts and the restoration of the status quo,’ whereas ‘mandamus 

commands the performance of a particular duty that rests on the defendant or 

respondent, by operation or law or because of official status.’” Wolcott, 635 F.3d at 

766 (citation omitted). 

If mandamus jurisdiction does exist, relief under Section 1361 “may only issue 

when (1) the plaintiff has a clear right to relief, (2) the defendant a clear duty to act, 

and (3) no other adequate remedy exists.” Id. at 768 (citing Jones v. Alexander, 609 

F.2d 778, 781 (5th Cir. 1980); Green v. Heckler, 742 F.2d 237, 241 (5th Cir. 1984)). As 

to the first two requirements, “[i]n short, mandamus does not create or expand duties, 

but merely enforces clear, non-discretionary duties already in existence.” Id.

For no other adequate remedy to be available “requires the exhaustion of any 

adequate administrative remedies before a court may issue mandamus.” Id. (citing 

Heckler v. Ringer, 466 U.S. 602, 616-17 (1984)). That is, “[o]rdinarily mandamus may 

not be resorted to as a mode of review where a statutory method of appeal has been 

prescribed.” Id. (quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 27-28 (1943)). 

And, “[a]n alternative remedy, including an administrative remedy, is adequate if it 

is ‘capable of affording full relief as to the very subject matter in question.’” Id. (citing 

Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969) (per curiam)). 

So, “[e]ven when a court finds that all three elements are satisfied, the decision 

to grant or deny the writ remains within the court’s discretion because of the 

extraordinary nature of the remedy.” Id. (citing United States v. Denson, 603 F.2d 

1143, 1146 (5th Cir. 1979) (en banc)). Mandamus is therefore “reserved for 

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extraordinary circumstances.” In re Stone, 118 F.3d 1032, 1034 (5th Cir. 1997) (citing 

Kerr v. U.S. Dist. Ct., 426 U.S. 394, 403 (1976)). 

Applying these standards, Section 1361 does not afford the Court jurisdiction 

here. See Wolcott, 635 F.3d at 767. As further discussed below, an adequate remedy 

other than mandamus exists. And, at a minimum, the claim that Cosby now brings 

to this Court must first be presented to the Secretary. 

II. The Court otherwise lacks jurisdiction because Cosby fails to show that 

the United States has waived its sovereign immunity. 

Preliminarily, while Cosby contends that he is suing the Secretary in an 

individual capacity, his allegations do not bear this out. Cf. Hardesty v. Waterworks 

Dist. No. 4 of Ward Four, 954 F. Supp. 2d 461, 470-71 (W.D. La. 2013) (“The Fifth 

Circuit follows the majority view among the circuits that, when a plaintiff fails to 

allege in what capacity he is suing the defendants, a court must look to the substance 

of the plaintiff's claim, the relief sought, and the course of proceedings to discern the 

nature of the § 1983 suit.” (citing Parker v. Graves, 479 F.2d 335, 336 (5th Cir. 1973) 

(per curiam); collecting cases)). 

Regardless, insofar as Cosby seeks monetary damages, see Dkt. No. 3, ¶ 26, he 

has not shown that the Bivens remedy should be extended to the context of this 

lawsuit. See, e.g., Canada v. United States, 950 F.3d 299, 307 (5th Cir. 2020). 

And, focusing on the tenor of Cosby’s allegations, his claim against the 

Secretary is, in substance, asserted against the United States. See Kentucky v. 

Graham, 473 U.S. 159, 166 (1985). “To maintain a suit in district court against the 

United States, a plaintiff must bring claims under a statute in which Congress 

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expressly waives the United States’ sovereign immunity.” Ortega Garcia v. United 

States, 986 F.3d 513, 522 (5th Cir. 2021) (citing Dunn-McCampbell Royalty Interest, 

Inc. v. Nat’l Park Serv., 112 F.3d 1283, 1287 (5th Cir. 1997)); see also Carver v. 

Atwood, 18 F.4th 494, 497 (5th Cir. 2021) (“Sovereign immunity is indeed a 

jurisdictional bar.” (citing Cambranis v. Blinken, 994 F.3d 457, 462 (5th Cir. 2021))). 

“42 U.S.C. § 1395ff restrictively lifts the shield of sovereign immunity for 

Medicare claims, revealing a small window through which claims arising under 

Medicare may be pursued through 42 U.S.C. § 405(g).” D&G Holdings, LLC v. 

Burwell, 156 F. Supp. 3d 798, 807 (W.D. La. 2016). Accord Family Rehab., Inc. v. 

Azar, 886 F.3d 496, 500-01 (5th Cir. 2018) (“Under 42 U.S.C. § 405(g) and (h), federal 

courts are vested with jurisdiction over only a ‘final decision’ of [the Secretary] when 

dealing with claims ‘arising under’ the Medicaid Act. Ordinarily, this means that a 

[litigant] may come to district court only after either (1) satisfying all four stages of 

administrative appeal, i.e., after the [Medicare Appeals] Council has rendered a 

decision, or (2) after the provider has escalated the claim to the Council and the 

Council acts or fails to act within 180 days.” (footnote and citations omitted)).1

1 See also D&G Holdings, L.L.C. v. Becerra, 22 F.4th 470, 474 n.4 (5th Cir. 

2022) (“Section 405 is found in the Social Security Act, but both subsections (g) and 

(h) are incorporated into the Medicare Act. Section 1395ii makes § 405(h) applicable 

to the Medicare Act ‘to the same extent’ as it is applicable in the Social Security Act. 

Section 1395ff(b)(1)(A) incorporates § 405(g). Crucially, § 1395ff(b)(1)(A) limits 

judicial review to initial determinations that have been exhausted through the 

administrative appeals process. Agency actions that are not ‘initial determinations’ 

are therefore not eligible for § 405(g) judicial review under § 1395ff(b)(1)(A).”); D&G 

Holdings, L.L.C. v. Azar, 776 F. App’x 845, 848 (5th Cir. 2019) (per curiam) (As 

applicable to Cosby, “[u]nder § 1395ff(a), initial determinations include an ‘initial 

determination of whether an individual is entitled to benefits’ and ‘the amount of 

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Cosby initially argues that Section 405’s channeling requirements do not apply 

here since he “has ‘no claim pending’ before” the Secretary. Dkt. No. 3, ¶ 8; see also 

id. (setting out a timeline that Cosby alleges culminated with a letter from the Social 

Security Administration dated November 17, 2021, which stated that “[t]here is 

currently no claim pending and therefore no claim to appeal,” from which Cosby 

concludes: “Thus, since SSA has declared that Plaintiff has ‘no claim to appeal,’ it has 

waived any objections it may have to this Court’s assuming jurisdiction over this 

matter pursuant to 42 USCS 405 et seq.”). 

But, first, insofar as Cosby’s argument above may be read as also asserting 

that the claim now before the Court does not arise under the Medicare Act, such an 

argument is incorrect. As set out above, Cosby seeks declaratory and injunctive relief 

based on his reading of the Act. And “[a] claim arises under the Medicare Act if ‘both 

the standing and the substantive basis for the presentation’ of the claim is the 

Medicare Act.” RenCare, Ltd. v. Humana Health Plan of Tex., Inc., 395 F.3d 555, 557 

(5th Cir. 2004) (quoting Ringer, 466 U.S. at 606 (quoting, in turn, Weinberger v. Salfi, 

422 U.S. 749, 760-61 (1975))); see also GOS Operator, LLC v. Sebelius, 843 F. Supp. 

2d 1218, 1223 & n.10 (S.D. Ala. 2012) (“Courts have construed these principles 

broadly.” (collecting cases, including Lynncore Medgroup, Inc. v. Sebelius, No. 4:11-

cv-195, 2011 WL 6116536, *5 (E.D. Tex. Nov. 10, 2011) (“Courts broadly construe the 

phrase ‘arising under’ to include ‘all claims for relief, regardless of whether the 

benefits available to the individual’ under Parts A and B of the Medicare Act.” 

(quoting 42 U.S.C. § 1395ff(a)(1)(A)-(B))). 

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claimant seeks benefits, or declaratory or injunctive relief.’” (quoting Citadel 

Healthcare Servs., Inc. v. Sebelius, No. 3:10-cv-1077-BH, 2010 WL 5101389, at *3 

(N.D. Tex. Dec. 8, 2010))), rec. adopted, 2011 WL 6131953 (E.D. Tex. Dec. 7, 2011))). 

The undersigned also cannot find that Cosby’s timeline supports that his claim 

has been removed from Section 405’s channeling requirements. 

“Section 405(g) ... provides for judicial review of ‘any final decision ... made 

after a hearing.’ This provision, the [United States Supreme] Court has explained, 

contains two separate elements: first, a ‘jurisdictional’ requirement that claims be 

presented to the agency, and second, a ‘waivable ... requirement that the 

administrative remedies prescribed by the Secretary be exhausted.’” Smith v. 

Berryhill, 139 S. Ct. 1765, 1773 (2019) (quoting Mathews v. Eldridge, 424 U.S. 319, 

328 (1976)); see also Feldman v. Dep’t of Health & Human Servs., Civ. A. No. 12-246-

BAJ-SCR, 2012 WL 3293407, at *4 (M.D. La. Aug. 10, 2012) (“In Mathews, the 

Supreme Court held that jurisdiction under section 405(g) is determined by a two 

prong test. First, there must have been a presentment to the Secretary. This element 

can never be waived and no decision of any type can be rendered if this requirement 

is not satisfied.” (citing Affiliated Prof’l Home Health Care Agency v. Shalala, 164 

F.3d 282, 285 (5th Cir. 1999); citation omitted)). 

And, in Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1 (2000), 

the Supreme Court 

acknowledged that certain “contentions” relevant to the “‘action’ arising 

under the Medicare Act” are reviewable by the courts, even if those 

“contentions” themselves were not subject to a hearing. The challengers 

there complained about certain procedural regulations pertaining to the 

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agency’s review, but they did not initiate agency review at all, and 

attempted instead to bring their challenge directly to the courts. The 

Court held that the challengers were required to present the matter to 

the agency first, but they “remain free, however, after following the 

special review route that the statutes prescribe, to contest in court the 

lawfulness of any regulation or statute upon which an agency 

determination depends.” The Court went on to say: 

The fact that the agency might not provide a hearing for 

that particular contention, or may lack the power to 

provide one is beside the point because it is the “action” 

arising under the Medicare Act that must be channeled 

through the agency. 

D&G Holdings, 22 F.4th at 475 (quoting Ill. Council, 529 U.S. at 23). 

Cosby’s timeline is hard to follow, but it does demonstrate that, as to the claim 

now before the Court – even if that claim is not subject to a hearing – he failed to 

initiate agency review – that is, he failed to present the claim to the agency. This 

failure deprives the Court of jurisdiction, as the United States has yet to waive its 

sovereign immunity as to the claim Cosby now asserts against it. See Ill. Council, 529 

U.S. at 20 (“[T]his Court crossed the relevant bridge long ago when it held that 

Congress, in both the Social Security Act and the Medicare Act, insisted upon an 

initial presentation of the matter to the agency.” (citing Ringer, 466 U.S. at 627; Salfi, 

422 U.S. at 762)); see also Supreme Home Health Servs., Inc. v. Azar, 812 F. App’x 

229, 234-35 (5th Cir. 2020) (“The Supreme Court has made clear that 42 U.S.C. § 

405(h), as incorporated by 42 U.S.C. § 1395ii, generally bars suits arising under the 

Medicare laws from being brought under federal-question jurisdiction. Claims must 

first be ‘channeled through’ the administrative review process. A plaintiff may invoke 

§ 1331 in a particular set of cases, however, where the bar against jurisdiction ‘would 

not lead to channeling of review through the agency but would mean no review at all.’ 

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‘This exception is narrow and applies only when channeling a claim through the 

agency would result in the “complete preclusion of judicial review.”’ But [even] the 

delay caused by the ‘colossal backlog in Medicare appeals’ is not enough to provide 

jurisdiction under § 1331.” (citations omitted)).2

Relatedly, while Cosby invokes 42 U.S.C. § 1395ff(b)(2) as a separate basis for 

jurisdiction, see Dkt. No. 3, ¶ 5, this provision only provides for expedited access to 

judicial review to a provider or an individual “who has filed an appeal under [Section 

1395ff(b)(1)],” 42 U.S.C. § 1395ff(b)(2)(A). Cosby did not file such an appeal. 

In sum, Section 405 applies to Cosby’s current claim. As such, jurisdiction 

under Section 1331 is not available. And Cosby has not shown that the United States 

has waived its sovereign immunity and thus shown that the Court has jurisdiction 

over this lawsuit. 

Recommendation

The Court should dismiss this case for lack of subject matter jurisdiction. 

A copy of these findings, conclusions, and recommendation shall be served on 

all parties in the manner provided by law. And any party who objects to any part of 

these findings, conclusions, and recommendation must file specific written objections 

2 Cf. Barber v. United States, 642 F. App’x 411, 413-14 (5th Cir. 2016) (per 

curiam) (“Before filing suit under the FTCA, the plaintiff must ‘first present[ ] the 

claim to the appropriate Federal agency.’ 28 U.S.C. § 2675(a).... [B]ecause 

presentment is a ‘condition[ ] upon which the government consents to be sued’ 

under the FTCA’s waiver of sovereign immunity, it ‘must be strictly construed in 

favor of the United States.’ Atorie Air, Inc. v. Fed. Aviation Admin., 942 F.2d 954, 

958 (5th Cir. 1991).”). 

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within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

specify the place in the magistrate judge’s findings, conclusions, and recommendation 

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure 

to file specific written objections will bar the aggrieved party from appealing the 

factual findings and legal conclusions of the magistrate judge that are accepted or 

adopted by the district court, except upon grounds of plain error. See Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

DATED: March 9, 2022 

 _________________________________________ 

 DAVID L. HORAN 

 UNITED STATES MAGISTRATE JUDGE

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