UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Judy Pederson Rogers &

William Ernest Rogers

v. Civil No. 06-cv-115-PB

United States Department of Health

and Human Services, et al.

O R D E R

Pro se plaintiffs Judy Pederson Rogers and William Ernest

Rogers have filed suit against the United States Department of

Health and Human Services and the Centers for Medicare and

Medicaid Services pursuant to the Social Security Act, 42 U.S.C.

§ 301, et seq., alleging that the defendants improperly upheld a

decision to exclude plaintiffs from participation in Medicare and

Medicaid federal and state programs as health care providers. 

Because plaintiffs are proceeding pro se and have paid their

filing fee, the complaint is before me for preliminary review to

determine whether this court’s subject matter jurisdiction has

been invoked. See United States District Court for the District

of New Hampshire Local Rule 4.3(d)(1)(A). 

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Standard of Review

In reviewing a pro se complaint, this court must construe

the pleading liberally. See Ayala Serrano v. Lebron Gonzales,

909 F.2d 8, 15 (1st Cir. 1990) (following Estelle v. Gamble, 429

U.S. 97, 106 (1976) to construe pro se pleadings liberally in

favor of the pro se party). “The policy behind affording pro se

plaintiffs liberal interpretation is that if they present

sufficient facts, the court may intuit the correct cause of

action, even if it was imperfectly pled.” Ahmed v. Rosenblatt,

118 F.3d 886, 890 (1st Cir. 1997), cert. denied, Ahmed v.

Greenwood, 522 U.S. 1148 (1998).

At this preliminary stage of review, all factual assertions

made by the plaintiff and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996) (stating the “failure to state a claim” standard

of review and explaining that all “well-pleaded factual

averments,” not bald assertions, must be accepted as true). This

review ensures that pro se pleadings are given fair and

meaningful consideration. See Eveland v. Dir. of C.I.A., 843

F.2d 46, 49 (1st Cir. 1988). I apply this standard in reviewing

the plaintiffs’ complaint. 

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Background

The plaintiffs allege that while living in Connecticut, they

were partners in a business providing health care and pharmacy

services primarily to poor urban residents with HIV and AIDS. In

2000, the Connecticut Department of Social Services (“CDSS”)

audited the health care enterprises owned by the Rogers. The

audit identified a number of errors made in relation to Medicare

and Medicaid billing and sought to recoup almost two million

dollars from the plaintiffs. Plaintiffs disagreed with the

outcome of the audit and retained counsel, who filed suit in the

Connecticut Superior Court to stay the CDSS recoupment efforts. 

Shortly after this lawsuit was commenced, CDSS, without

explanation, reclassified the previously identified “errors” as

fraud and the Rogers were directed to defend themselves against

the fraud charges at an internal CDSS hearing. 

In 2003, the Connecticut Superior Court stayed the

recoupment order. CDSS then aggressively sought to increase

their efforts to audit plaintiffs’ businesses and as a result,

made only a fraction of the Medicare and Medicaid payments

claimed by the Rogers. The plaintiffs assert that they were

forced to close their businesses entirely due to the shortfall of

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1The plaintiffs do not state with whom the complaint was

filed. The language of the complaint implies that the complaint

was filed with CDSS because the plaintiffs state that after

filing, they were notified by CDSS auditors that the complaint

would be accepted for investigation. The plaintiffs were told

that the investigation would be conducted by the Connecticut

Attorney General’s office.

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Medicare and Medicaid payments. CDSS offered to enter into a

settlement agreement with the plaintiffs in lieu of pursuing the

fraud allegations criminally if the plaintiffs agreed to

terminate their suit in the Connecticut Superior Court, to allow

a mortgage lien on their residence in New Hampshire, and to never

again engage in the provision of health care in Connecticut. 

On May 5, 2003, plaintiffs signed the settlement agreement

proposed by CDSS. They now assert, however, that the agreement

was signed under duress because they had been forced out of

business, were without funds to hire counsel, and were being

threatened with criminal prosecution for fraud if they did not

sign the proposed settlement agreement.

Plaintiffs allege that immediately after signing the

agreement, they filed a whistleblower complaint1 against CDSS for

what they allege was an unethical attempt to circumvent the

Connecticut Superior Court’s stay order. The whistleblower

complaint further accused CDSS officials of improperly diverting

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money from Medicaid health care providers and funneling it to

state general accounts for other purposes.

In July of 2003, the plaintiffs were advised by an official

from the United States Department of Health and Human Services

(“HHS”) that they were being considered from exclusion from

provider participation in Medicaid and Medicare under §

1128(b)(5) of the Social Security Act. After a lengthy exchange

of correspondence wherein the plaintiffs challenged the exclusion

with HHS directly, they received notice that exclusion would be

effective on December 23, 2004. 

Plaintiffs filed an appeal with the HHS Departmental Appeals

Board (“DAB”). DAB eventually upheld the exclusion decision

without granting the plaintiffs a due process hearing. 

Plaintiffs received the notice of DAB’s decision to uphold the

exclusion on January 31, 2006. This action was filed sixty days

later, seeking review of DAB’s decision under the Social Security

Act, 42 U.S.C. §§ 405(g), 1320a-7(f)(1); see Sternberg v. Sec’y,

Dep’t of Health & Human Servs., 299 F.3d 1201, 1205 (10th Cir.

2002). 

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Discussion

I. Subject Matter Jurisdiction

Federal Courts are courts of limited jurisdiction. Kokkonen

v. Guardian Life Ins. Co. Of Am., 511 U.S. 375, 377 (1994). The

presumption is that a federal court lacks jurisdiction. Id.

Consequently, the burden is on the plaintiff who claims

jurisdiction to affirmatively allege jurisdiction and prove it. 

Id.; see also Bender v. Williamsport Sch. Dist, 475 U.S. 534, 541

(1986). To bring a civil action within the court’s subject

matter jurisdiction, a plaintiff must allege that his action

either involves a federal question, or involves citizens from

different states and an amount in controversy in excess of

$75,000. See 28 U.S.C. §§ 1331 & 1332. If it appears that the

courts lacks subject matter jurisdiction over the matter, the

court is required to dismiss the action. Fed. R. Civ. P.

12(h)(3). 

By filing suit under the Social Security Act, plaintiffs

invoke the federal question jurisdiction of this court. See 28

U.S.C. §1331 (authorizing District Court jurisdiction over “civil

actions arising under the Constitution, laws, or treaties of the

United States.”). This Court’s jurisdiction over this claim

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2There is a second component to establishing the subject

matter jurisdiction of this Court - the remedies must be fully

exhausted. Doe v. Bowen, 682 F.Supp. 637, 640 (D. Mass. 1987). 

However, the exhaustion requirement:

is waivable by the Secretary [of HHS] and, 

alternatively, subject to judicially enforced 

waiver when a showing has been made 1) that the 

claim presented to the court raises a 

constitutional challenge wholly collateral to the 

substantive claim of entitlement; and 2) that full 

relief cannot be obtained at a post-deprivation 

hearing because the claimant will suffer 

irreparable harm, or be damaged in a way not 

recompensable through retroactive payments. 

Heckler, 466 U.S. at 617-18. Because plaintiffs here allege that

they have both presented and exhausted their claims

administratively, I need not examine this second component

further at this time.

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depends on the plaintiffs’ exhaustion of administrative remedies

by presenting the claims to the HHS prior to filing an action in

this Court. Mathews, Sec’y of Health, Educ., & Welfare v.

Eldridge, 424 U.S. 319, 328 (1976); Heckler v. Ringer, 466 U.S.

602, 617-18 (1984).2 For purposes of preliminary review, the

plaintiffs have adequately alleged that they have presented their

claims to the HHS and exhausted their administrative remedies to

establish this Court’s subject matter jurisdiction.

II. Service 

Plaintiffs are required to serve a summons and a copy of the

complaint upon a defendant to a civil action within 120 days of

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3Fed. R. Civ. P. 4(m) states:

[T]he court, upon motion or on its own initiative 

after notice to the plaintiff, shall dismiss the 

action without prejudice as to that defendant or 

direct that service be effected within a specified 

time; provided that if the plaintiff shows good 

cause for the failure, the court shall extend the 

time for service for an appropriate period.

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the date the complaint was filed or else the court may dismiss

the case for failure to prosecute. Fed. R. Civ. P. 4(m).3 As of

June 28, 2006, ninety (90) days after the complaint in this case

was filed, the plaintiffs have filed neither summonses for

processing nor any certificate of service indicating that either

of the defendants have been served with a copy of the complaint. 

In accordance with Fed. R. Civ. P. 4(m), plaintiffs are hereby

notified that this case may be dismissed without prejudice on

July 28, 2006, unless the Court receives return of service

documents or a motion to extend time to effect service by that

date.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: June 28, 2006

cc: Judy Pederson Rogers, pro se

William Ernest Rogers, pro se

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