FILED
NOT FOR PUBLICATION JUL 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PAUL MESSER; DOROTHY No. 10-56353
CALABRESE, M.D.,
D.C. No. 8:08-cv-00633-CJC-
Plaintiffs - Appellants, RNB
v.
MEMORANDUM **
U.S. DEPARTMENT OF HEALTH &
HUMAN SERVICES; et al.,*
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted July 12, 2011 ***
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
Dorothy Calabrese, M.D., and her patient Paul Messer, appeal pro se from
*
Kathleen Sebelius is substituted for her predecessor, Michael O.
Leavitt, as Secretary of the Department of Health and Human Services under Fed.
R. App. P. 43(c)(2).
**
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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.
2 10-56353