Karen Tucker v. Secretary Health and Human Ser

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: HARDIMAN, NYGAARD and ROTH, Circuit Judges. Total Pages: 8.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 14-1127
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KAREN E. TUCKER,
Appellant
v.
SECRETARY OF HEALTH AND HUMAN SERVICES
__________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 1-12-cv-05900)
District Judge: Honorable Robert B. Kugler
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 28, 2014
Before: HARDIMAN, NYGAARD and ROTH, Circuit Judges
(Opinion filed: October 7, 2014)
____________
OPINION
____________

PER CURIAM
Appellant Dr. Karen Tucker appeals from an order of the District Court dismissing
her complaint. For the following reasons, we will affirm.

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In 1998, Dr. Tucker pleaded guilty to one count of Medicare fraud, in violation of
18 U.S.C. § 1347, in the United States District Court for the Northern District of Texas.
See Tucker v. United States, 2001 WL 1613796 (N.D. Tex. December 13, 2001)
(denying section 2255 motion to vacate sentence). During this same time period, she
sought reimbursement from Medicare for services allegedly rendered to Medicare
beneficiaries. In May, 2007, Dr. Tucker filed a civil complaint pro se in the United States
District Court for the District of New Jersey, requesting payment of certain claims that
had been denied. The Secretary of the United States Department of Health & Human
Services moved to dismiss the complaint for lack of subject matter jurisdiction, Fed. R.
Civ. Pro. 12(b)(1), arguing that Dr. Tucker had failed to exhaust her administrative
remedies. Specifically, the Secretary argued that Dr. Tucker never submitted timely
requests for payment on some of her claims, and did not timely prosecute the vast
majority of her claims through the entirety of the administrative appeals process. In
opposition to the motion to dismiss, Dr. Tucker argued that she was prevented from
submitting claims and appellate documentation to Medicare by a United States
Magistrate’s pretrial release order, issued on March 24, 1998, which made her subject to
the condition that she avoid all contact with anyone who might be a witness in her case,
including any health care providers, doctors, nursing homes, Medicare personnel, and
patients.
The District Court granted the Secretary’s motion and dismissed Dr. Tucker’s
complaint. The District Court concluded that Dr. Tucker arguably satisfied the
jurisdictional “presentment” requirement, but further concluded that it was beyond
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dispute that she had not fully exhausted her administrative remedies because she did not
timely prosecute her claims through the entirety of the administrative appeals process or
timely file certain of her claims. See Tucker v. Sebelius, 2010 WL 2761525, at *9
(D.N.J. July 12, 2010) (“[T]he Court concludes that waiver of the exhaustion requirement
is not warranted in this case, and that consequently the … Court lacks jurisdiction over
Dr. Tucker’s Complaint and will dismiss it.”).1 Dr. Tucker then sought reconsideration,
asking the District Court to waive the exhaustion requirement. In an order entered on
July 25, 2011, the District Court denied the motion for reconsideration. See Tucker v.
Sebelius, 2011 WL 3047651 (D.N.J. July 25, 2011).
Dr. Tucker appealed, but we concluded that the District Court properly declined to
waive exhaustion and properly dismissed the complaint for lack of subject matter
jurisdiction. See Tucker v. Sec’y, Health & Human Serv., 487 F. App’x 52 (3d Cir.
2012). We noted that Dr. Tucker raised no constitutional arguments or issues collateral
to her claims for payment, but rather argued that the government had impeded her from
exhausting her remedies, see id. at 56.2 We were not persuaded by this argument and

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A district court has jurisdiction over an appeal taken from a final, reviewable decision
of the Secretary made after a hearing in a Medicare case. 42 U.S.C. § 405(g). Without
that final, reviewable decision, however, there is no subject matter jurisdiction in the
district courts. See Fitzgerald v. Apfel, 148 F.3d 232, 234 (3d Cir. 1998) (citing
Mathews v. Eldridge, 424 U.S. 319, 328 (1976)). There are two prerequisites to § 405(g)
jurisdiction: the nonwaivable jurisdictional requirement that a claim for benefits shall
have been presented to the Secretary, and the waivable requirement that administrative
remedies be exhausted. See Heckler v. Day, 467 U.S. 104, 111 n.14 (1984).
2
A claim is “collateral” if it is not essentially a claim for benefits. See Fitzgerald, 148
F.3d at 234.
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agreed with the District Court that Dr. Tucker had the ability to submit the missing
documentation to Medicare, see id. at 56-57.
Dr. Tucker then filed a second complaint in federal district court, again seeking
payment for the very same Medicare claims that were the basis for her prior complaint.
Seizing upon our prior determination that she had not raised any constitutional or
collateral issues, Dr. Tucker asserted jurisdiction based on alleged violations of her
constitutional rights and several federal statutes. Dr. Tucker also sought to vacate her
conviction for Medicare fraud. The Secretary moved to dismiss the complaint pursuant
to Fed. R. Civ. Pro. 12(b)(1) and 12(b)(6), arguing in pertinent part that the District
Court’s prior judgment had a preclusive effect on, and barred, the new complaint.
The District Court rejected the Secretary’s issue preclusion argument and
dismissed the complaint in its entirety for failure to state a claim for relief, Fed. R. Civ.
Pro. 12(b)(6), see Tucker v. Sebelius, 2013 WL 6054552 (D.N.J. November 15, 2013).
Among other determinations, the District Court discussed Dr. Tucker’s claims in light of
review pursuant to 42 U.S.C. § 405(g), and noted that waiver of exhaustion might be
warranted if she had raised a colorable constitutional argument. However, despite her
claims that her Fifth, Sixth, Seventh, and Fourteenth Amendment rights had been
violated, her complaint failed to articulate a basis for such claims. Although she
mentioned “due process” several times in her complaint, her prior civil action established
without a doubt that she had had a meaningful opportunity to be heard at the
administrative level. The District Court concluded that in her current complaint Dr.
Tucker was merely reiterating the same arguments but calling them constitutional
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violations. Accordingly, subject matter jurisdiction was still lacking. See id. at *12
(“The Court has examined the complaint for any allegations implicating constitutional
rights that were missing from her prior complaint, but has found none.”). The District
Court also held that it lacked jurisdiction to review Dr. Tucker’s conviction pursuant to
28 U.S.C. § 2255(h).3 Dr. Tucker later filed a post-judgment motion, which the District
Court treated as a motion for reconsideration, Fed. R. Civ. Pro. 59(e), and denied.
Tucker appeals. We have jurisdiction under 28 U.S.C. § 1291. The Secretary has
argued in her brief on appeal that Dr. Tucker’s second complaint should have been
dismissed pursuant to Fed. R. Civ. Pro. 12(b)(1) for lack of subject matter jurisdiction
because the District Court’s prior judgment had a preclusive effect on, and barred, the
second complaint. The District Court’s subject matter jurisdiction may be challenged at
any time, including on appeal. See In re: Kaiser Group International Inc., 399 F.3d 558,
565 (3d Cir. 2005). We have stated that we have a “special obligation” to satisfy
ourselves not only of our own jurisdiction, but also that of the District Court in a cause
under review. See Wujick v. Dale & Dale, Inc., 43 F.3d 790, 792 (3d Cir. 1994). See
also Gov’t of Virgin Islands v. Hodge, 359 F.3d 312, 322 (3d Cir. 2004) (“Questions of
original jurisdiction are always automatically before this Court on appellate review.”).

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The Secretary has advised us that Dr. Tucker pursued a petition for writ of error coram
nobis in the federal district court in Texas because she is no longer in custody for
purposes of section 2255 jurisdiction. The petition was denied and her appeal to the
United States Court of Appeals for the Fifth Circuit was unsuccessful. See Appellee’s
Brief, at 3-4. We agree with the District Court that there is no basis for Dr. Tucker to
challenge her conviction in the federal district court in New Jersey.
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We will affirm the District Court’s order dismissing the complaint on the basis of
a lack of subject matter jurisdiction. We agree with the Secretary that the District Court’s
prior judgment dismissing Dr. Tucker’s first complaint for lack of subject matter
jurisdiction had a preclusive effect on, and barred, the second complaint. A judgment
dismissing an action for lack of jurisdiction ordinarily has no preclusive effect on the
cause of action originally raised, but it does have a preclusive effect on matters actually
litigated. See Kasap v. Folger Nolan Fleming and Douglas, Inc., 166 F.3d 1243, 1248
(D.C. Cir. 1999) (“even a case dismissed without prejudice has preclusive effect on the
jurisdictional issue litigated”). The issue of the District Court’s subject matter
jurisdiction was actually litigated in Dr. Tucker’s first cause of action. Dismissal of the
prior suit for lack of subject matter jurisdiction thus barred relitigation of the
jurisdictional question. See Hill v. Potter, 352 F.3d 1142, 1146-47 (7th Cir. 2003)
(although dismissal is without prejudice because court did not have power to decide case
on the merits, it is preclusive with respect to jurisdictional ruling that plaintiff failed to
exhaust administrative remedies). There is abundant case law applying the doctrine of
issue preclusion to subject matter jurisdictional decisions.4

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See, e.g., Muñiz Cortes v. Intermedics, Inc., 229 F.3d 12, 14 (1st Cir. 2000) (dismissal
for lack of subject matter jurisdiction “precludes relitigation of issues determined in
ruling on the jurisdictional question”); North Georgia Elec. Membership Corp. v. City of
Calhoun, 989 F.2d 429, 432-33 (11th Cir. 1993) (dismissal of complaint for lack of
jurisdiction adjudicates court’s jurisdiction, and second complaint cannot command
second consideration of same jurisdictional claim); Dozier v. Ford Motor Co., 702 F.2d
1189, 1194 (2d Cir. 1983) (although appellate court in affirming dismissal for lack of
subject matter jurisdiction did so “without prejudice,” this statement did not defeat effect
of judgment with respect to issue preclusion on issues of jurisdiction); Oglala Sioux Tribe
of Pine Ridge Indian Reservation v. Homestake Mining Co., 722 F.2d 1407, 1411-1413
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None of Dr. Tucker’s new theories of relief involving violations of federal statutes
or her constitutional rights correct the jurisdictional problem. As the District Court
correctly noted, in her second complaint she was merely reiterating the same arguments
but calling them constitutional violations. Accordingly, subject matter jurisdiction was
still lacking. Dr. Tucker fully availed herself of the opportunity to establish subject
matter jurisdiction in her first cause of action. See Sherrer v. Sherrer, 334 U.S. 343, 348
(1948) ( “[T]here is nothing in the concept of due process which demands that a
defendant be afforded a second opportunity to litigate the existence of jurisdictional
facts.”). Dr. Tucker failed to exhaust her administrative remedies and nothing has
changed to undermine that determination.
Furthermore, section 405(h) of title 42 provides that section 405(g) is the only
remedy for a party seeking review of a decision under the Medicare Act denying a
monetary benefit. See Shalala v. Ill. Council on Long Term Health Care, Inc., 529 U.S.
1, 10 (2000). The federal statutes cited by Dr. Tucker provide no basis for the District
Court to have assumed jurisdiction over her claims. In addition, to the extent that Dr.
Tucker sought to pursue a civil rights action against Secretary Kathleen Sebelius pursuant
to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971), and 42 U.S.C. §§ 1985 and 1986, the doctrine of sovereign immunity bars the

(8th Cir. 1983) (dismissal of suit for lack of federal subject matter jurisdiction precludes
relitigation of same issue of subject matter jurisdiction in second federal suit on same
claim); Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980) (per curiam) (same). Cf.
Semtek Intern. Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001) (dismissal of state
court claim by federal court sitting in diversity barred plaintiff from refiling same claim
in that same court, but did not necessarily bar plaintiff from filing claim in state court).
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action. See United States v. Mitchell, 463 U.S. 206, 212 (1983). The United States may
not be sued without its consent, see id., and a Bivens action cannot be maintained against
a federal official in her official capacity since such an action would essentially be one
against the United States. Last, the District Court’s denial of Dr. Tucker’s motion for
reconsideration was not an abuse of discretion.
For the foregoing reasons, we will affirm the order of the District Court dismissing
the complaint.

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