After examining the briefs and appellate record, this panel has determined *

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

F I LED

United States Court of Appeals

Tenth Circuit

August 2, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ESTATE OF BERNADETTE F.

LEGO,

Plaintiff-Appellant,

v.

MICHAEL O. LEAVITT, Secretary of

the Department of Health and Human

Services,

Defendant-Appellee.

No. 06-1498

(D.C. No. 05-cv-01260-JLK)

(D. Colo.)

ORDER AND JUDGMENT

*

Before TACHA, Chief Judge, MURPHY and HOLMES, Circuit Judges.

The Estate of Bernadette Lego (“the Estate”) appeals from the district

court’s decision granting the motion to dismiss filed by Michael O. Leavitt,

Secretary of the Department of Health and Human Services (“the Secretary”), and
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dismissing the Estate’s complaint for lack of subject matter jurisdiction. 

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

Background

In August 2001, Bernadette Lego, a recipient of Medicare Part C benefits,

was admitted to Porter Adventist Hospital in Denver, Colorado. At the end of

September, Mr. Robert Lego, an attorney and Mrs. Lego’s husband, received

notice that if Mrs. Lego continued her stay at Porter, she would no longer be

covered by Medicare and would be responsible for payment of all costs of

services. This determination was based on the Medicare review program’s

assessment that acute hospital care was no longer medically necessary. Mr. Lego

sought reconsideration of the decision and it was denied. Mrs. Lego remained at

Porter until November 9. In December, Mr. Lego timely requested a hearing

before an Administrative Law Judge (ALJ) to review the denial of coverage. 

After Mrs. Lego’s death in June 2002, Mr. Lego continued the administrative

appeal on behalf of the Estate. 

On May 30, 2003, Mr. Lego appeared at a hearing. The ALJ’s decision

reflects that “Mr. Lego testified that he did not know why a hearing was being

held as it was his understanding that there was a zero balance on the account and

that no collection actions had been undertaken.” Aplt. App. at 21. The ALJ

adjourned the hearing to contact the provider, Centura Health, in order to clarify
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the matter. Id. The ALJ learned that there was an outstanding amount in excess

of $144,000 and that it was an active collection account. Id.

After the ALJ obtained this clarification, the ALJ’s staff contacted

Mr. Lego to reschedule the hearing. In September 2004, another hearing was

scheduled for November 22, 2004. Mr. Lego contacted the ALJ’s office by

telephone on November 19 to inform them that he was ill and requested a

continuance of the hearing. After Mr. Lego’s phone call, the ALJ indicated that

he would not consider a continuance unless he could speak with Mr. Lego’s

physician regarding Mr. Lego’s medical condition. The ALJ did speak with

Mr. Lego’s physician, although Mr. Lego was not permitted to participate in the

phone call. 

On the day of the hearing, November 22, Mr. Lego filed an “Emergency

Motion to Continue Hearing and for Expedited Determination of Such

Continuance.” Representatives for Centura Health appeared at the hearing and

opposed the motion for a continuance. Mr. Lego did not appear. On

December 29, the ALJ issued a decision denying the request for a continuance

and determining that “good cause” did not exist for Mr. Lego’s failure to appear

at the hearing. Id. at 23. Because Mr. Lego had not established good cause for

not appearing at the hearing, the ALJ dismissed the request for a hearing, which

left the earlier determination of non-coverage in effect. 
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Mr. Lego sought review of the ALJ’s decision through the Medicare

Appeals Council (MAC). In May 2005, the MAC denied the request, concluding

that there was no legal basis to review the ALJ’s decision. In July 2005,

Mr. Lego filed a complaint in district court on behalf of the Estate seeking

judicial review of the ALJ’s decision. The Secretary filed a motion to dismiss,

arguing that the district court lacked subject matter jurisdiction over the Estate’s

complaint. The district court granted the motion and dismissed the case. The

Estate appealed. 

Discussion

The Estate asserts that the district court erred by (1) failing to provide

factual findings and conclusions of law in violation of Fed. R. Civ. P. 52 when

the district court entered the order dismissing the complaint; and (2) granting the

Secretary’s motion to dismiss for lack of subject matter jurisdiction. We review

de novo the district court’s dismissal of the Estate’s complaint for lack of subject

matter jurisdiction. See Harline v. Drug Enforcement Admin., 148 F.3d 1199,

1202 (10th Cir. 1998). 

Rule 52

The Estate argues that the district court violated Rule 52(a) by not

providing factual findings and conclusions of law when the district court entered

its order granting the Secretary’s Fed. R. Civ. P. 12(b)(1) motion to dismiss. The
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Estate, however, provides an incomplete citation to Rule 52 thereby

misrepresenting the scope of the rule. In its brief, it states, “Fed. R. Civ. P. 52(a)

provides that a court ‘shall find the facts specially and state separately its

conclusions of law thereon . . . .’” Aplt. Br. at 14. The Estate neglects to include

in this excerpt an important and highly relevant portion of the rule, which states: 

“Findings of fact and conclusions of law are unnecessary on decisions of motions

under Rule 12 or 56 or any other motion except as provided in subdivision (c) of

this rule.” Fed. R. Civ. P. 52(a) (emphasis added). Subdivision (c) does not apply

here because it relates to proceedings involving a trial without a jury. See Fed. R.

Civ. P. 52(c). The district court was therefore not required by Rule 52 to provide

findings of fact and conclusions of law when it granted the Secretary’s 12(b)(1)

motion to dismiss. 

Moreover, we find the district court’s order sufficient to enable us to

conduct our appellate review. In the Secretary’s motion to dismiss, he argued that

the district court lacked subject matter jurisdiction because there was no final

decision after a hearing as required by 42 U.S.C. § 405(g) and that the Estate had

not alleged a colorable constitutional claim such that the Estate’s failure to

exhaust its administrative remedies should be excused. In the order, the district

court granted the motion to dismiss and then stated: “This case is DISMISSED

for lack of subject matter jurisdiction. Plaintiff failed to exhaust all

administrative remedies.” Aplt. App. at 126. Given that the district court granted
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the motion to dismiss and dismissed the case on the basis argued for by the

Secretary in his motion, there was no need for further discussion by the district

court to enable this court to review the order. 

Jurisdiction

The Estate argues that the district court erred in dismissing its complaint

for lack of subject matter jurisdiction because its complaint falls within the

judicial review language of 42 U.S.C. § 405(g). Section 405(g) is applicable to

the review of benefit decisions on Medicare+Choice Plans, substituting the

Secretary for the Commissioner of the Social Security Administration where

§ 405(g) refers to the Commissioner. See 42 U.S.C. § 1395w-22(g)(5). The

provision states in relevant part: “Any individual, after any final decision of the

[Secretary] made after a hearing to which he was a party . . . may obtain a review

of such decision by a civil action . . . .” Id. § 405(g). 

Here, the ALJ dismissed the Estate’s request for a hearing based on

20 C.F.R. § 416.1457(b)(1). Under § 416.4157(b)(1)(i), an ALJ may dismiss a

request for a hearing if: (1) neither the plaintiff nor their representative appears

at the time and place set for the hearing; (2) the plaintiff has been notified before

the time set for the hearing that the request for a hearing may be dismissed

without further notice for failure to appear; and (3) good cause has not been found

for the plaintiff’s failure to appear. The ALJ concluded that the Estate had not

demonstrated good cause for its failure to appear at the hearing. This left the
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earlier determination of non-coverage in effect and no hearing was held on the

merits of the Estate’s claim regarding the denial of Medicare benefits. 

In Califano v. Sanders, the Supreme Court held that § 205(g) (later codified

as § 405(g)) “clearly limits judicial review to a particular type of agency action, a

‘final decision of the Secretary made after a hearing.’” 430 U.S. 99, 108 (1977)

(quoting § 205(g)). Although Califano involved a different type of proceeding–a

petition to reopen a prior final decision–the Fifth Circuit applied Califano to a

case that is virtually identical to the case here. In Brandyburg v. Sullivan, 959

F.2d 555, 556-57 (5th Cir. 1992), the plaintiff requested a hearing with an ALJ

after his application for supplemental security income disability benefits was

denied initially and on reconsideration. His hearing was rescheduled twice. Five

days before the hearing was scheduled to take place, plaintiff’s attorney requested

a continuance. Neither plaintiff nor his attorney appeared at the hearing. 

Subsequently, the ALJ entered an order dismissing the request for a hearing based

on his finding that plaintiff had failed to appear at the hearing without good

cause. Plaintiff sought review of the ALJ’s dismissal, but the Appeals Council

denied review. Plaintiff then filed an action in federal district court. Defendant

filed a motion to dismiss, arguing that the court lacked jurisdiction because

plaintiff had failed to exhaust his administrative remedies and there had been no

final decision of the Secretary within the meaning of § 405(g). The district court

granted the motion. The Fifth Circuit affirmed, noting that Califano explicitly
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held “that § 405(g) only authorizes judicial review when there is a hearing.” Id.

at 561. Moreover, the court went on to explain that it and other circuits had held

that district courts lack jurisdiction to review other types of procedural dismissals

under § 416.1457 and that a dismissal for failure to appear at a hearing should be

treated the same way. Id. Accordingly, the Fifth Circuit held “that the district

court was correct in its holding that the ALJ’s dismissal of [plaintiff’s hearing]

request was not a ‘final decision’ subject to judicial review under section 405(g).” 

Id. at 562. 

Relying on the language of § 405(g) and the cases referenced above, the

Secretary’s position is that the district court correctly determined that it lacked

jurisdiction over the Estate’s complaint because “there was no final decision of

the Secretary after a hearing.” Aplee. Br. at 16. The Estate disagrees, arguing

that its complaint falls within the judicial review language of § 405(g) because

there were two hearings before the ALJ entered its dismissal–the impromptu

telephone hearing with Mr. Lego’s doctor and the November 22 hearing. 

The ALJ’s phone conversation with Mr. Lego’s doctor was not a hearing. 

It was simply a conversation between the ALJ and Mr. Lego’s doctor concerning

Mr. Lego’s alleged medical condition and the necessity for a continuance. As for

the November 22 hearing, although Centura appeared for the hearing, Mr. Lego,

the Estate’s representative, did not appear. As in Brandyburg, there was no

merits hearing that would fall within the meaning of § 405(g) and therefore the
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district court was correct in dismissing the complaint for lack of jurisdiction. 

Moreover, the ALJ’s dismissal was a procedural one and, as the court noted in

Brandyburg, district courts lack jurisdiction to review an ALJ’s procedural

dismissal under § 416.1457. See Brandyburg, 959 F.2d at 561-62. This provides

an additional basis for affirming the district court’s decision. 

Finally, the Estate argues that even if Califano and its progeny in some

measure support the district court’s dismissal for lack of jurisdiction, Califano

provides an exception permitting federal courts to review constitutional

challenges. In order to be entitled to jurisdiction under this exception, however,

the Estate must allege a “colorable constitutional claim.” Califano, 420 U.S.

at 109; see also Nelson v. Sec’y of Health & Human Servs., 927 F.2d 1109, 1111

(10th Cir. 1990); Brandyburg, 959 F.2d at 562. “A constitutional claim is not

colorable if it clearly appears to be immaterial and made solely for the purpose of

obtaining jurisdiction or [] is wholly insubstantial or frivolous.” Hoye v. Sullivan,

985 F.2d 990, 991-92 (9th Cir. 1992) (per curiam) (quotation omitted). 

The Estate’s complaint contains the following allegation:

 

Plaintiff is also entitled to relief because the proceedings pursuant to

which the Order was entered (including (I) the entire procedural

history respecting the setting of a hearing before the ALJ, and (ii) the

circumstances, beginning on November 19, 2004 with Lego’s initial

notification to the ALJ’s office that his illness would prevent his

attendance at the November Hearing, and culminating in the Order)

denied Plaintiff its constitutional rights of due process, including

rights to proper and timely notice and hearing with respect to review

of both the First Review Decision and the Reconsideration Decision,
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with respect [to] the November Hearing, and also with respect to the

Order.

Aplt. App. at 12-13. Although the Estate made the conclusory allegation that it

was “denied its constitutional rights of due process, including rights to proper and

timely notice and hearing,” id. at 13, it failed to allege facts to support that

allegation. For example, Mr. Lego has not alleged any violations of § 416.1457. 

He has not alleged (1) that he was present at the hearing; (2) that he did not

receive notice of the consequences if he failed to appear; or (3) that the ALJ

failed to make a good cause finding for his failure to appear. See

§ 416.1457(b)(1)(i). 

With respect to any claim the Estate may have that the ALJ’s consideration

of its request for a continuance violated its due process rights, the Estate has not

identified any authority that establishes that it had a constitutionally protected

right to have a hearing on its request for a continuance. Relying on Mathews v.

Eldridge, 424 U.S. 319, 333 (1976), the Estate argues that it was entitled to a

hearing on the continuance where Mr. Lego was present when the ALJ spoke with

his doctor, where Mr. Lego could argue before the ALJ based on the evidence,

and where Mr. Lego could then receive a record of the proceedings. Although the

Estate cites to Mathews, it provides no analysis as to how Mathews applies to the

Estate’s request for a continuance, other than to state that under Mathews “due

process requires an opportunity to be heard at a meaningful time and in a
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meaningful manner.” Aplt. Br. at 22; see also id. at 25. As the Secretary points

out, however, in order for the Estate to benefit from the Mathews decision, it must

establish that it “had a constitutionally protected property interest in having a

full-blown hearing on the continuance request.” Aplee. Br. at 23 (emphasis

added); see also Mathews, 424 U.S. at 333 (“This Court has consistently held that

some form of hearing is required before an individual is finally deprived of a

property interest.” (emphasis added)). There is nothing in the Estate’s complaint,

its response to the motion to dismiss, or its appellate briefs that identifies the

“property interest” that it was deprived of when the ALJ did not hold a hearing on

its request for a continuance. 

Given the lack of factual or legal support for the Estate’s constitutional

allegations, we conclude that it did not raise a colorable constitutional claim and

that the district court’s decision to dismiss the complaint for lack of subject

matter jurisdiction was correct. Accordingly, the judgment of the district court is

AFFIRMED.

Entered for the Court

Michael R. Murphy

Circuit Judge