Armstrong et al v. New Mexico Disability Determination Services

Filing 35

MEMORANDUM OPINION AND ORDER by District Judge James O. Browning granting the Defendant's Motion to Dismiss Complaint 8 and the Defendant's Motion to Dismiss Complaint Against Administrative Law Judge Miriam Fernandez-Rice 18 . (kw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MICHAEL ARMSTRONG and BERYL
ANN GRIEGO
Plaintiffs,
vs.

No. CIV 15-1148 JB/JHR

NEW MEXICO DISABILITY
DETERMINATION SERVICES, DANIEL
ROPER, Director, New Mexico Disability
Determination Services, in his official
capacity, and MIRIAM FERNANDEZRICE, Administrative Law Judge, United
States Social Security Office of Disability
Adjudication and Review, in her individual
capacity
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) the Defendant’s Motion to Dismiss
Complaint, filed March 15, 2016 (Doc. 8)(“First Motion”); and (ii) the Defendant’s Motion to
Dismiss Complaint Against Administrative Law Judge Miriam Fernandez-Rice, filed April 19,
2016 (Doc. 18)(“Second Motion”).1 The Court held a hearing on August 14, 2017. The primary
issues are: (i) whether the Social Security Administration (“SSA”) must provide reasonable
notice of the name of the person who will conduct a consultative examination or, alternatively,
whether it suffices that the SSA makes that information available upon request; and (ii) whether
Administrative Law Judges (“ALJs”) are entitled to absolute judicial immunity when they refer
attorneys who appear before them to the SSA’s Office of Disability Adjudication and Review

1

The briefing on behalf of the named Defendants was performed by the Acting
Commissioner of Social Security.

(“ODAR”) for investigation. The Court concludes that the SSA needs to make the name of the
person who will conduct a consultative evaluation available only upon request and that ALJs are
entitled to absolute judicial immunity when making referrals to ODAR for investigation.
Consequently, the Court will grant both the First Motion and the Second Motion.
FACTUAL BACKGROUND2
The SSA works with states “to provide and maintain an effective system for processing
claims of those who apply for and who are receiving” disability benefits. 20 C.F.R. § 404.1603.
State agencies generally make initial “determinations of disability with respect to all persons in
the State.” 20 C.F.R. § 404.1613. In New Mexico, the Defendant New Mexico Disability
Determination Services (“NMDDS”) makes those determinations. First Amended Complaint for
Writ of Mandamus, For Damages For Violation of Civil Rights and for Declaratory Judgment
¶ 4, at 2, filed January 4, 2016 (Doc. 3)(“Complaint”). See First Motion at 2. NMDDS must
comply with SSA regulations. See 20 C.F.R. § 404.1603(a)(“The State will comply with our
regulations and other written guidelines.”). To help it make disability determinations, NMDDS
may ask someone applying for disability benefits to have a consultative examination, i.e., “one or
more physical examinations or tests,” and NMDDS must give “reasonable notice of the date,
time, and place the examination or test will be given, and the name of the person or facility who
will do it.” 20 C.F.R. § 404.1517. An applicant may object to the person that NMDDS
designates to perform the consultative examination and, “if there is a good reason for the
2

Because this matter comes before the Court on two motions to dismiss, the Court
assumes the truth of the factual allegations in the Plaintiffs’ First Amended Complaint for Writ
of Mandamus, For Damages For Violation of Civil Rights and for Declaratory Judgment ¶ 2, at
2, filed January 4, 2016 (Doc. 3) and construes those facts in the light most favorable to the
Plaintiffs, see Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)(Briscoe, J.)(“[F]or
purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations
in a complaint and view these allegations in the light most favorable to the plaintiff.”).

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objection,” NMDDS will designate someone else. 20 C.F.R. § 404.1519j. Defendant Daniel
Roper is the NMDDS Director. See Complaint ¶ 5, at 2.
Plaintiff Michael Armstrong is an attorney who represents individuals seeking Social
Security benefits, including disability benefits. See Complaint ¶ 2, at 2. On April 29, 2014, the
SSA’s Office of General Counsel told Armstrong that someone had filed an anonymous
complaint against Armstrong alleging that his objections to the consultative evaluations that
NMDDS scheduled for his clients “are ethical misconduct, . . . cause delay in the processing of
claims, and cause a disruption of proceedings in violation of 20 C.F.R. § 404.1740.” Complaint
¶ 27, at 5.

The anonymous complaint also alleged that “Armstrong’s conduct constituted

advisement to his clients not to comply with Social Security rules and regulation.” Complaint
¶ 28, at 6. “On July 22, 2014, the Office of General Counsel advised Plaintiff Armstrong that his
actions ‘did not appear to violate the Rules of Conduct and Standards of Responsibility for
Representatives,’ and identified the formerly anonymous complainant as Defendant FernandezRice.” Complaint ¶ 30, at 6. ODAR employs Fernandez-Rice as an ALJ. See Complaint ¶ 7, at
3.
Plaintiff Beryl Ann Griego is one of Armstrong’s clients who seeks Social Security
disability benefits. See Complaint ¶ 3, at 2. She currently has a claim pending before NMDDS
for disability benefits.

See Complaint ¶ 39, at 7.

NMDDS arranged for a consultative

examination for Griego, scheduled the examination for July 25, 2015, and provided notice of the
examination to Griego on June 16, 2015, but NMDDS did not tell Griego the name of the doctor
who would perform the examination.

See Complaint ¶¶ 42-43, at 7.

On July 14, 2015,

Armstrong objected to NMDDS’ failure to provide the name of the doctor who would conduct
Griego’s consultative examination, because that information was required to exercise Griego’s

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right to object to the person designated to perform her examination. See Complaint ¶ 44, at 7-8.
Armstrong advised Griego not to attend the July 25, 2015 examination, and she did not attend.
See Complaint ¶¶ 45-46, at 8. NMDDS then scheduled two more consultative examinations; it
scheduled one for August 29, 2015, and it scheduled another for November 28, 2015. Complaint
¶ 47, at 8. NMDDS did not provide notice of who would conduct either examination, Armstrong
objected to NMDDS’s failure to provide that information, and Griego did not attend either
examination. See Complaint ¶¶ 48-50, at 8. While none of the three consultative-examination
notices listed the name of the doctor who would conduct the examination, all three identified the
facility that would perform the examination as “ADVANCED MEDICAL CONSULTANTS
SILVERMAN SPINE & INJURY CENTER,” and provided its address. Notice of Disability
Examination(s) at 1, dated June 16, 2015, filed March 15, 2016 (Doc. 8-1)(“June Notice”);
Notice of Disability Examination(s) at 1, dated August 19, 2015, filed March 15, 2016 (Doc. 81)(“August Notice”); Notice of Disability Examination(s) at 1, dated November 18, 2015, filed
March 15, 2016 (Doc. 8-1)(“November Notice”).3
PROCEDURAL HISTORY
The Plaintiffs petition the Court for “a writ of mandamus . . . ordering Defendant Roper
to perform his non-discretionary duty as Director of [NMDDS] to Social Security disability
applicants with timely notice of the name” of the person who NMDDS has selected to perform a
3

It is proper for the Court to consider the June, August, and November Notices on a
motion to dismiss even though they are attached to the First Motion and not the Complaint,
because the Complaint references them, see Complaint ¶¶ 43, 48, at 7-8, their adequacy is central
to the Plaintiffs’ claims, see Complaint ¶¶ 52-53, at 8, and their authenticity is unquestioned, see
GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997)(Kelly,
J.)(“[I]f a plaintiff does not incorporate by reference or attach a document to its complaint, but
the document is referred to in the complaint and is central to the plaintiff’s claim, a defendant
may submit an indisputably authentic copy to the court to be considered on a motion to
dismiss.”).

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consultative evaluation. Complaint ¶ 56, at 9. The Plaintiffs also seek monetary damages under
both 42 U.S.C. § 1983 and under Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971)(“Bivens”). See Complaint ¶ 1, at 1.
1.

The First Motion to Dismiss.

On March 15, 2016, “Defendant, Acting Commissioner of Social Security, standing in
place of the named-defendant[s]” NMDSS and Roper, in his official capacity as NMDSS
Director, moved to dismiss the Complaint. First Motion at 1. The Defendants assert that the
“Plaintiffs cannot show that a writ of mandamus is appropriate or necessary.” First Motion at 3.
According to the Defendants, mandamus relief is inappropriate, because the “Plaintiffs did not
show that any avenues of relief, much less all, were exhausted to ascertain any medical
provider’s name,” First Motion at 10, and because, “[h]ad either Ms. Griego or Mr. Armstrong
contacted the NMDSS, the NMDSS could easily have provided the physician’s name,” First
Motion at 12. See First Motion at 3 (“[T]he NMDDS is fully amenable to providing the
information upon request . . . .”). According to the Defendants, the Plaintiffs’ failure to inquire
about the names of examining physicians should bar mandamus relief, because “[o]ther courts
have refused to grant a writ of mandamus when, like in the case at bar, the petitioner presents no
evidence that other adequate non-judicial remedies were sought before filing the petition.” First
Motion at 15-16 (citing Maddalino v. West, 13 Vet. App. 475 (2000), and Costanza v. West, 12
Vet. App. 133, 134 (1999)).
In the Plaintiffs’ Response to Defendant’s Motion to Dismiss Complaint, filed April 16,
2016 (Doc. 16)(“First Response”), the Plaintiffs argue that mandamus relief is appropriate,
because NMDSS has a nondiscretionary “duty to provide reasonable notice of the names of
medical providers assigned to perform consultative evaluations,” First Response at 6, and

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because NMDSS has failed to execute that duty, see First Response at 10-14. According to the
Plaintiffs, that nondiscretionary duty stems from an SSA regulation requiring NMDSS to provide
“reasonable notice . . . of the person or facility who will” perform a consultative examination, 20
C.F.R. § 404.1517, and from another SSA regulation that permits people “to object to your being
examined by a medical source we have designated to perform a consultative examination,” 20
C.F.R. § 404.1519j. The Plaintiffs also maintain that the SSA’s Program Operation Manual
System (“POMS”) -- “the SSA’s administrative manual that dictates agency procedure at the
initial determination a[n]d reconsideration stages,” First Response at 8 n.4 -- indicates that the
initial notice should contain the name of the doctor conducting the consultative evaluation,
because POMS contains a model appointment notice template, and “[t]hat template contains a
field for ‘Name and Address’ of the medical evaluator,” First Response at 8.
The Plaintiffs also observe that, “[i]n 2011, Plaintiff Armstrong brought a petition for a
writ of mandamus very similar to this one,” because the SSA “failed to timely disclose the names
of medical providers assigned to perform consultative evaluations” for two of his clients
“therefore denying his clients of their rights to object to those providers under § 404.1519j.”
First Response at 7 (citing Memorandum Opinion and Order, Albers v. Social Security
Administration, No. CIV 11-0092 (D.N.M. 2011)(Johnson, J.)(Doc. 8-10)(“Albers MOO”)).
The Plaintiffs emphasize that the Albers MOO concluded “that SSA has ‘a nondiscretionary duty
. . . under [20 C.F.R.] § 404.1517 to disclose the names of the [physicians performing
consultative evaluations], and by not doing so, was in violation of its own regulation.’” First
Response at 7 (alterations and omissions made by the Plaintiffs)(quoting Albers MOO at 5). The
Plaintiffs also note that the Defendants “have already been ordered that compliance with their
regulations requires them to ‘provide thirty (30) days written notice . . . prior to the date of any

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consultative evaluation . . . [including] the name of the evaluating doctor.’” First Response at 910 (alterations and omissions made by the Plaintiffs)(quoting Albers MOO at 7).
The Plaintiffs acknowledge that the named parties in the case at bar are different from the
parties in Albers; neither Armstrong nor Griegos were plaintiffs in Albers and the SSA, not the
NMDSS, was the Albers defendant. See First Response at 8. The Plaintiffs contend, however,
that “[t]he reasoning that led Judge Johnson[] to his ruling in Albers should not be discarded
solely on the basis that the parties have changed.” First Response at 8.
In the Defendant’s Reply to Plaintiffs’ Response to Defendant’s Motion to Dismiss
Complaint, filed May, 3, 2016 (Doc. 21)(“First Reply”), the Defendants argue that the Albers
MOO is limited to the two Albers plaintiffs, because the Albers MOO determined that those
plaintiffs had no standing to seek “prospective injunctive relief which would affect all notices
that DDS sends out to all social security claimants.” Albers MOO at 6. See Reply at 5 (quoting
Albers MOO at 6). The Defendants also argue the “Plaintiffs’ current attempt to make 30 days
as the new court-mandated standard based on Albers is without foundation,” Reply at 5, because
the Albers MOO’s specific notice requirements come from a “mutually-agreed draft Order” that
the parties submitted and not from SSA regulations, Albers MOO at 7. See Reply at 5. Finally,
the Defendants respond to the Plaintiffs’ argument based on the POMS model notice template by
noting that “[t]he Agency’s POMS are merely internal guidelines and operating instructions and
are not regulatory requirements.” Reply at 6 (citing Washington Dep’t of Soc. and Health Servs.
v. Keffeler, 537 U.S. 371, 385 (2003)).
2.

The Second Motion to Dismiss.

On April 19, 2016, “Defendant, Acting Commissioner of Social Security, standing in
place of the named-defendant Miriam Fernandez-Rice,” moved the Court to dismiss the

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Plaintiffs’ claims against Fernandez-Rice. Second Motion at 1. The Defendants argue that the
Court should dismiss those claims, because Fernandez-Rice “performed her actions as an
administrative judge, and administrative judges are protected by absolute immunity.” Second
Motion at 2. The Defendants also argue that, even if Fernandez-Rice is not entitled to absolute
immunity, at least qualified immunity protects her and requires the Court to dismiss the claims
against her. See Second Motion at 2.
In Plaintiff Armstrong’s Response to Defendant Rice’s Motion to Dismiss Complaint,
filed May 27, 2016 (Doc. 25)(“Second Response”), Armstrong argues that, by relying on
attached exhibits in support of its factual allegations, the Second Motion “has presented ‘matters
outside the pleadings’” such that, under rule 12(d) of the Federal Rules of Civil Procedure, the
Second Motion should be converted to a motion for summary judgment. See Second Response
at 3 (quoting Fed. R. Civ. P. Rule 12(d)). Armstrong also argues that Fernandez-Rice is not
entitled to absolute immunity as a judge, because “an ALJ referring a suspected violation of the
SSA rules pertaining to a representative’s conduct acts more akin to a ‘complaining witness,’
than the prosecutor or adjudicator of the suspected violation.” Second Response at 9. He further
argues that Fernandez-Rice is not entitled to absolute immunity as a federal official exercising
discretion -- vis-à-vis Armstrong’s federal claims -- because such immunity applies only to statetort liability such that “‘only a qualified immunity is available to federal officials who have
violated constitutional or federal statutory rights.’” Second Response at 8 (quoting Strothman v.
Gefreh, 739 F.2d 515, 520 (10th Cir. 1984)).
Qualified immunity does not protect Fernandez-Rice, according to Armstrong, because
she violated Armstrong’s clearly established constitutional rights. See Second Response at 10.
Armstrong says that, by the time Fernandez-Rice reported him to ODAR, the Albers MOO

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clearly established that “required notices of consultative evaluations to SSA applicants were
required to include the name of the individual medical provider who would be conducting the
evaluation.” Second Response at 12. Armstrong argues that, consequently, clearly established
law indicated that Armstrong’s right to “petition the Government for a redress of grievances”
protected his right to object to inadequate notices. U.S. Const. amend. I. See Second Response
at 11.
In a brief reply, the Defendants reiterate that Fernandez-Rice is entitle to absolute
immunity as an ALJ, because she “performed her actions in the scope of her employment.”
Defendant’s Reply to Plaintiffs’ Response to Defendant’s Motion to Dismiss Complaint Against
Administrative Law Judge Miriam Fernandez-Rice at 4, filed June 14, 2016 (Doc. 26)(“Second
Reply”). The Defendants again assert that, even if Fernandez-Rice is not entitled to absolute
immunity, qualified immunity protects her. See Second Reply at 4.
3.

The Hearing.

The Court held a hearing on August 14, 2017. See Transcript of Hearing (taken August
14, 2017)(“Tr.”).4

The Defendants, speaking first, acknowledged that the Albers MOO

addressed the Plaintiffs’ argument that consultative-examination notices must contain the name
of the doctor who will perform the examination. See Tr. at 7:6-13 (Lucero). The Defendants
noted, however, that “[J]udge Johnson limited that case to that client and for that determination
of disability only.” Tr. at 8:2-4 (Lucero). The Defendants elaborated:
Mr. Armstrong continues to argue the Albers decision as if that were the law of
the case, that that was what mandates the way the Social Security Administration
will respond to notices and that it requires New Mexico Disability Determination
Services to act in accordance with that opinion. It’s not. It’s pretty clear that
4

The Court’s citations to the transcript of the hearing refer to the court reporter’s original,
unedited version. Any final transcript may contain slightly different page and/or line numbers.

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[J]udge Johnson only wanted and only decided that case for that case only. He
didn't want and didn’t feel that it was appropriate for him to decide on prospective
remedies down the line.
Tr. at 10:19-11:4 (Lucero).
The Defendants then turned to the Second Motion and argued that absolute immunity
protects Fernandez-Rice, because absolute immunity “has also been found by the Tenth Circuit
to fall to ALJs, just like it falls to magistrate judges, Bankruptcy judges. All federal judges have
absolute immunity. If they are doing their job and they are rendering decisions, then they have
absolute immunity from suit.” Tr. at 14:3-8 (Lucero). According to the Defendants, FernandezRice was acting as a judge when she referred Armstrong to ODAR for investigation, because
“[s]he saw something in her official duty while sitting on a case that required some kind of
investigation. . . . So she was acting within the scope of her employment as a judge to refer Mr.
Armstrong for an investigation.” Tr. at 14:16-23 (Lucero).
The Plaintiffs then began by noting that, while the briefing on the First Motion only
addresses whether mandamus relief would be appropriate, the Complaint requests not just
mandamus relief but also declaratory and injunctive relief. See Tr. at 19:19-20:1 (Sanders).
Consequently, the Plaintiffs indicate that deciding the mandamus issue in the Defendants’ favor
would not “dispose of this case entirely.” Tr. at 20:1-4 (Sanders). The Plaintiffs then articulated
their view that “[t]he primary issue in this case comes back to the Albers decision, which . . . is
dispositive of at least the declaratory judgment and mandamus and injunctive relief requests that
we have made.” Tr. at 20:5-9 (Sanders). The Plaintiffs then indicated that they sought a
declaratory judgment to “expand the ruling in Albers to apply to all those seeking benefits under
Social Security disability,” because the reasoning of the Albers MOO applied beyond the facts of
that particular case. Tr. at 20:14-19 (Sanders).

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That statement prompted the Court to inquire whether the Plaintiffs viewed the Albers
MOO as persuasive or binding authority. See Tr. at 20:20-25 (Court). The Plaintiffs replied that
“there is an argument that . . . defendants are collaterally estopped from making arguments
regarding what is sufficient notice under these regulations.” Tr. at 21:2-10 (Moore). The
Plaintiffs maintained, however, that, even if the Albers MOO is not binding authority, its
reasoning “is at least highly persuasive.” Tr. at 21:10-11 (Moore).
The Plaintiffs later turned to the absolute-immunity issue. See Tr. at 44:2-6 (Moore).
They argued that, while ALJs are entitled to absolute immunity, that absolute immunity applies
only to their judicial acts. See Tr. at 44:6-45:4 (Moore). It follows, according to the Plaintiffs,
that Fernandez-Rice is not entitled to absolute immunity, because “she merely referred the case
to the prosecuting agency” and “had [not] been assigned to oversee the hearing about whether
Mr. Armstrong had violated SSA’s code of ethics.” Tr. at 45:9-12 (Moore). The Court then
challenged the Plaintiffs by inquiring whether, under their understanding of judicial immunity, a
Magistrate Judge’s referrals could subject the Magistrate Judge to suit. See Tr. at 16-21(Court).
The Plaintiffs replied that the key distinction between ALJs and Magistrate Judges is that
Magistrate Judges “have some power to sanction attorneys for improper conduct. They have that
power in and of themselves, or at least to make those recommendations,” while ALJs do not. Tr.
at 45:22-46:4(Moore). According to the Plaintiffs, a Magistrate Judge referral is an extension of
the Magistrate Judge’s judicial power, whereas ALJs do not have a judicial power to discipline
attorneys. See Tr. at 45:2-12 (Moore).
On qualified immunity, the Plaintiffs began to argue that Fernandez-Rice referred
Armstrong to ODAR for exercising a right that the Albers MOO clearly established, but the
Court interrupted and suggested that only the United States Court of Appeals for the Tenth

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Circuit or the Supreme Court of the United States can make clearly established law. See Tr. at
48:4-16 (Moore, Court). The Plaintiffs contended that district court opinions could clearly
establish law if “no reasonable officer in the position of the defendant would [think] that the
conduct is constitutional.” Tr. at 48:17-21 (Moore).
After a brief recess, the Court indicated that it wanted to revisit the Plaintiffs’ contention
that, even if they failed on the mandamus issue, they might still have a claim for declaratory or
injunctive relief. See Tr. at 55:19-56:1 (Court). The Plaintiffs said that they might have a claim
for declaratory or injunctive relief if the Court concludes that the Defendants have a duty to
provide notice of the names of the doctors who will conduct consultative examination even if the
Court concludes that mandamus relief is not appropriate, because it concludes that the duty is
discretionary and not ministerial. See Tr. at 56:2-17 (Moore). The Plaintiffs conceded, however,
that, “[i]f the court . . . found that [the] Albers decision was mistaken, and that the regulations do
not require . . . the timely notice of the names of the providers, then that would be dispositive of
the declaratory judgment, and the injunctive relief.” Tr. at 56:17-23 (Moore).
On rebuttal, the Defendants attacked the idea that the Albers MOO has collateral estoppel
effect, because “Judge Johnson was pretty darned clear that this only -- that case only applied to
Albers.” Tr. at 68:18-21 (Lucero). The Court suggested that there might be a doctrine that
“makes it very difficult to estop the federal government,” Tr. at 70:8-9 (Court), and the
Defendants’ counsel agreed that, “when I started working for the government they said, the
United States can’t be collaterally estopped,” Tr. at 70:16-18 (Lucero). The Court later indicated
that a Supreme Court case held that non-mutual, offensive collateral estoppel does not apply to
the federal government, and the Court indicated that it would likely treat the Albers MOO as

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persuasive authority. See Tr. at 82:17-84:2 (Court)(citing United States v. Mendoza, 464 U.S.
154 (1984)).
LAW REGARDING MOTIONS TO DISMISS UNDER RULE 12(b)(6)
Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “The nature of a Rule 12(b)(6) motion
tests the sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994)(Brorby, J.). The
complaint’s sufficiency is a question of law, and, when considering a rule 12(b)(6) motion, a
court must accept as true all well-pled factual allegations in the complaint, view those allegations
in the light most favorable to the non-moving party, and draw all reasonable inferences in the
plaintiff’s favor.

See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322

(2007)(“[O]nly if a reasonable person could not draw . . . an inference [of plausibility] from the
alleged facts would the defendant prevail on a motion to dismiss.”); Smith v. United States, 561
F.3d 1090, 1098 (10th Cir. 2009)(Briscoe, J.)(“[F]or purposes of resolving a Rule 12(b)(6)
motion, we accept as true all well-pled factual allegations in a complaint and view these
allegations in the light most favorable to the plaintiff.”)(citing Moore v. Guthrie, 438 F.3d 1036,
1039 (10th Cir. 2006)).
A complaint need not set forth detailed factual allegations, yet a “pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action” is
insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678. “Factual
allegations must be enough to raise a right to relief above the speculative level, on the

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assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl.
Corp v. Twombly, 550 U.S. at 555 (citation omitted).
To survive a motion to dismiss, a plaintiff’s complaint must allege facts that, if assumed
to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550
U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010)(Seymour, J.). “A claim has
facial plausibility when the pleaded factual content allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). “Thus, the mere metaphysical
possibility that some plaintiff could prove some set of facts in support of the pleaded claims is
insufficient; the complainant must give the court reason to believe that this plaintiff has a
reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC
v. Schneider, 493 F.3d at 1177 (emphasis omitted). The Tenth Circuit has stated:
“[P]lausibility” in this context must refer to the scope of the allegations in a
complaint: if they are so general that they encompass a wide swath of conduct,
much of it innocent, then the plaintiffs “have not nudged their claims across the
line from conceivable to plausible.” The allegations must be enough that, if
assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for
relief.
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(quoting Bell Atl. Corp. v. Twombly,
550 U.S. at 570)(citations omitted).
Although affirmative defenses must generally be pled in the defendant’s answer, not
argued on a motion to dismiss, see Fed. R. Civ. P. 8(c), there are two exceptions: (i) cases where
the defendant asserts an immunity defense, see Glover v. Gartman, 899 F. Supp. 2d 1115, 113739, 1141 (D.N.M. 2012)(Browning, J.)(citing Pearson v. Callahan, 555 U.S. 223 (2009), and
Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir. 2008)); and (ii) cases where the facts
establishing an affirmative defense are apparent on the complaint’s face, see Miller v. Shell Oil

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Co., 345 F.2d 891, 893 (10th Cir. 1965)(Hill, J.)(“Under Rule 12(b), a defendant may raise an
affirmative defense by a motion to dismiss for the failure to state a claim. If the defense appears
plainly on the face of the complaint itself, the motion may be disposed of under this rule.”).
“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented
to and not excluded by the court, the motion must be treated as one for summary judgment under
Rule 56.” Fed. R. Civ. P. 12(d). Without converting a motion to dismiss into a motion for
summary judgment, a court can consider a document that is “referred to in the complaint and is
central to the plaintiff’s claim” even though the plaintiff “does not incorporate by reference or
attach a document to its complaint” if the defendant “submit[s] an indisputably authentic copy to
the court to be considered on a motion to dismiss.” GFF Corp. v. Associated Wholesale Grocers,
Inc., 130 F.3d 1381, 1384 (10th Cir. 1997)(Kelly, J.). See Genesee Cty. Emps.’ Retirement Sys.
v. Thornburg Mortg. Secs. Trust 2006-3, 825 F. Supp. 2d 1082, 1150-51 (D.N.M.
2011)(Browning, J.)(holding that a defendant’s operating certification, which was central to
whether plaintiffs adequately alleged a loss and to which the plaintiffs referenced in their
complaint, could be considered on a motion to dismiss).
When matters outside of the pleadings are presented to a court on a motion to dismiss,
“courts have broad discretion in determining whether or not to accept materials beyond the
pleadings.” Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998)(Baldock, J.). A
court should convert a motion to dismiss into a motion for summary judgment if the court
considers matters outside of the pleadings, but failing to do so “is harmless if the dismissal can
be justified under Fed.R.Civ.P. 12(b)(6) standards without consideration of the matters outside
the pleadings.” Lowe v. Town of Fairland, 143 F.3d at 1381.

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LAW REGARDING MANDAMUS
Mandamus -- Latin for “we command” -- is “[a] writ issued by a court to compel
performance of a particular act by a lower court or governmental officer or body.” Mandamus,
Black’s Law Dictionary 1105 (10th ed. 2014). Two distinct statutory provisions permit federal
courts to issue writs of mandamus, depending on the function a particular writ serves. First,
under the All Writs Act, 28 U.S.C. § 1651, federal courts may issue writs of mandamus that are
“necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and
principles of law.” 28 U.S.C. § 1651(a). Appellate courts have the “power in a proper case to
issue such writs” to constrain the trial courts’ actions, but “[t]hese remedies should be resorted to
only where appeal is a clearly inadequate remedy,” because “[a]s extraordinary remedies they are
reserved for really extraordinary cases.” Ex parte Fahey, 332 U.S. 258, 260 (1947). See Cheney
v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004)(“The common-law writ of mandamus
against a lower court is codified at 28 U.S.C. § 1651(a) . . . .”).

“[O]nly exceptional

circumstances amounting to a ‘judicial usurpation of power,’ or a ‘clear abuse of discretion’”
justify a writ of mandamus against a lower court. Cheney v. U.S. Dist. Court for D.C., 542 U.S.
367 at 381 (quoting Bankers Life and Casualty Co. v. Holland, 346 U.S. 379, 383 (1953)).
Consequently, a petitioner seeking a writ of mandamus against a trial court judge must establish:
(i) that the petitioner has no other adequate means to obtain the relief desired, which “ensure[s]
that the writ will not be used as a substitute for the regular appeals process,” (ii) that the
petitioner’s “right to the issuance of the writ” is clear and indisputable, and (iii) “that the writ is
appropriate under the circumstances,” which is a function of the issuing court’s discretion.
Cheney v. U.S. Dist. Court for D.C., 542 U.S. at 380-81

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The second statutory basis for mandamus relief is § 1361 of the Mandamus and Venue
Act of 1962, Pub. L. No. 87-748, 76 Stat. 744, which provides that “[t]he district courts shall
have original jurisdiction of any action in the nature of mandamus to compel an officer or
employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28
U.S.C. § 1361. See generally Clark Byse & Joseph V. Fiocca, Section 1361 of the Mandamus
and Venue Act of 1962 and “Nonstatutory” Judicial Review of Federal Administrative Action,
81 Harv. L. Rev. 308 (1967). “The common-law writ of mandamus, as codified in 28 U.S.C. §
1361, is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of
relief and only if the defendant owes him a clear nondiscretionary duty.” Heckler v. Ringer, 466
U.S. 602, 616 (1984)(Rehnquist, J.). Mandamus is thus appropriate to compel agency action
only where the agency “has failed to perform a nondiscretionary, ministerial duty.” Marathon
Oil Co. v. Lujan, 937 F.2d 498, 500 (10th Cir. 1991)(Ebel, J.). See Estate of Smith v. Heckler,
747 F.2d 583, 591 (10th Cir. 1984)(McKay, J.)(“[T]he general rule [is] that mandamus is
appropriate where the person seeking the relief ‘can show a duty owed to him by the government
official to whom the writ is directed that is ministerial, clearly defined and peremptory.’”
(quoting Carpet, Linoleum and Resilient Tile Layers, Local Union No. 419 v. Brown, 656 F.2d
564 (10th Cir. 1981))).
Once it has been shown that an agency has failed to perform a ministerial duty, courts
have some discretion in fashioning mandamus relief. See Marathon Oil Co. v. Lujan, 937 F.2d
at 500 (“Although the party seeking issuance of a writ of mandamus has a heavy burden of
showing that the conditions are clearly met, the issuance of the writ is a matter of the issuing
court’s discretion.” (citations omitted)).

In Marathon Oil Co. v. Lujan, the Tenth Circuit

affirmed a district court order granting mandamus relief insofar as the district court required the

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Department of the Interior to complete administrative review of “an application for six oil shale
mining patents within 30 days.” 937 F.2d at 499. The Tenth Circuit reversed the district court
order, however, insofar as it directed the Department of the Interior “to approve the application
and issue the patents.” 937 F.2d at 499. The key distinction is that, “while the district court can
compel the defendants to exercise their discretion, it cannot dictate how that discretion is to be
exercised.” Marathon Oil Co. v. Lujan, 937 F.2d at 501. See Estate of Smith v. Heckler, 747
F.2d at 591 (holding that mandamus is an appropriate remedy, because of the Secretary of Health
and Human Services’ duty to promulgate nursing-home regulations even though the Medicaid
Act [Pub. L. No. 111-3, 123 Stat. 91 (1935)] “vests broad discretion in the Secretary as to how
that duty is best accomplished”).
LAW REGARDING OFFENSIVE COLLATERAL ESTOPPEL
Collateral estoppel, or issue preclusion, can be used either defensively or offensively. “In
both the offensive and defensive use situations, the party against whom estoppel is asserted has
litigated and lost in an earlier action.” Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 329
(1979). Offensive estoppel allows plaintiffs to prevent defendants from contesting issues that
they have previously had decided against them. The demise of the mutuality doctrine allows a
plaintiff to assert estoppel against a defendant who lost an earlier suit even if the plaintiff was not
a party to the earlier suit. The key is not that the defendant had a chance to litigate against the
plaintiff, but that the defendant had a chance to litigate the issue, whomever the opponent was.
“The general rule should be that in cases where a plaintiff could easily have joined in the
earlier action or where . . . the application of offensive estoppel would be unfair to a defendant, a
trial judge should not allow the use of offensive collateral estoppel.” Parklane Hosiery Co., Inc.
v. Shore, 439 U.S. at 331. Unfairness to a defendant can result from a variety of situations,

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including: (i) if the “defendant in the first action is sued for small or nominal damages [and thus]
may have little incentive to defend vigorously, particularly if future suits are not foreseeable”;
(ii) if “the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more
previous judgments in favor of the defendant”; and (iii) if “the second action affords the
defendant procedural opportunities unavailable in the first action that could readily cause a
different result.” Parklane Hosiery Co., Inc. v. Shore, 439 U.S. at 330-31. “Courts generally
have broad discretion in using offensive estoppel . . . .” Meredith v. Beech Aircraft Corp., 18
F.3d 890, 894–95 (10th Cir.1994).
Under Parklane, if the components of collateral estoppel are satisfied, its benefits
of economizing judicial resources and lessening the burdens of relitigating
identical issues already decided, would be afforded a non-mutual plaintiff
provided defendant had previously had a full and fair opportunity to litigate the
issue. Importantly, the decision to eliminate the mutuality requirement to permit
the plaintiff such a windfall was placed within the trial court's “broad discretion.”
Dodge v. Cotter Corp., 203 F.3d 1190, 1198 (10th Cir.2000)(quoting Parklane Hosiery Co., Inc.
v. Shore, 439 U.S. at 331).
Collateral estoppel applies differently, however, when the federal government is a party.
While it is true that “[t]he doctrine of res judicata, of course, prevents the government from
relitigating the same cause of action against the parties to a prior decision,” it is also true that
“nonmutual offensive collateral estoppel simply does not apply against the government . . . to
preclude relitigation of issues such as those involved in this case.” United States v. Mendoza,
464 U.S. 154, 162 (1984). The federal government is treated differently than private litigants,
because “the government is a party to a far greater number of cases on a nationwide basis than
even the most litigious private entity.” United States v. Mendoza, 464 U.S. at 159. Applying
nonmutual collateral estoppel to the federal government “would force the Solicitor General to
abandon . . . prudential considerations and to appeal every adverse decision in order to avoid

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foreclosing further review.”

United States v. Mendoza, 464 U.S. at 161.

Moreover, the

government is more likely than private parties to litigate “legal issues of substantial public
importance,” and “many constitutional questions can arise only in the context of litigation to
which the government is a party.” United States v. Mendoza, 464 U.S. at 160. Consequently,
applying nonmutual collateral estoppel to the federal government would “thwart the
development of important questions of law by freezing the first final decision rendered on a
particular issue.” United States v. Mendoza, 464 U.S. at 160. See id. (“Allowing only one final
adjudication would deprive this Court of the benefit it receives from permitting several courts of
appeals to explore a difficult question before this Court grants certiorari.”).
LAW REGARDING CONSULTATIVE EXAMINATIONS
SSA regulations state that, when the SSA arranges for a consultative examination for a
disability-benefits applicant, the SSA will give them “reasonable notice of the date, time, and
place the examination or test will be given, and the name of the person or facility who will do it.”
20 C.F.R. § 404.1517.

SSA regulations also state that a disability-applicant or their

representative “may object to your being examined by a medical source we have designated to
perform a consultative examination.” 20 C.F.R. § 404.1519j. The SSA will reschedule the
consultative examination “[i]f there is a good reason for the objection.” 20 C.F.R. § 404.1519j.
Good reasons include: (i) that the designated medical source “previously represented an
interest adverse to you;” (ii) “the presence of a language barrier;” (iii) “the medical source’s
office location;” (iv) “travel restrictions;” and (v) “whether the medical source had examined you
in a previous disability determination . . . that was unfavorable to you.” 20 C.F.R. § 404.1519j.
“[T]hat a medical source allegedly ‘lacks objectivity’ in general, but not in relation to you
personally” can also cause the SSA to substitute a different medical source. 20 C.F.R. § 1519j.

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LAW REGARDING 42 U.S.C. § 1983
Section 1983 of Title 42 of the United States Code provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . , subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983.

Section 1983 creates only the right of action; it does not create any

substantive rights; substantive rights must come from the Constitution or from a federal statute.
See Nelson v. Geringer, 295 F.3d 1082, 1097 (10th Cir. 2002)(“[S]ection 1983 did not create any
substantive rights, but merely enforces existing constitutional and federal statutory rights
. . . .”)(internal quotation marks, alteration, and citation omitted). Section 1983 authorizes an
injured person to assert a claim for relief against a person who, acting under color of state law,
violated the claimant’s federally protected rights. To state a claim upon which relief can be
granted under § 1983, a plaintiff must allege: (i) a deprivation of a federal right; and (ii) that the
person who deprived the plaintiff of that right acted under color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988). The Court has noted:
[A] plaintiff must establish (1) a violation of rights protected by the federal
Constitution or created by federal statute or regulation, (2) proximately caused (3)
by the conduct of a “person” (4) who acted under color of any statute, ordinance,
regulation, custom[,] or usage, of any State or Territory or the District of
Columbia.
Schaefer v. Las Cruces Public School Dist., 716 F. Supp. 2d 1052, 1063 (D.N.M.
2010)(Browning, J.)(quoting Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir. 2002)).
The Supreme Court clarified that, in alleging a § 1983 action against a government agent
in their individual capacity, “a plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal,

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556 U.S. 662, 676 (2009). Consequently, there is no respondeat superior liability under § 1983.
See Ashcroft v. Iqbal, 556 U.S. at 675 (“Because vicarious liability is inapplicable to Bivens and
§ 1983 suits, a plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.”); Bd. of Cty. Comm’rs v.
Brown, 520 U.S. 397, 403 (1997). Entities cannot be held liable solely on the basis of the
existence of an employer-employee relationship with an alleged tortfeasor. See Monell v. Dep’t
of Social Servs. of City of New York, 436 U.S. 658, 689 (1978). Supervisors can be held liable
only for their own unconstitutional or illegal policies, and not for their employees’ tortious acts.
See Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir. 1998).
The Tenth Circuit recognizes that non-supervisory defendants may be liable if they knew
or reasonably should have known that their conduct would lead to the deprivation of a plaintiff’s
constitutional rights by others, and an unforeseeable intervening act has not terminated their
liability. See Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir. 2012)(quoting 42 U.S.C. §
1983; Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006))(internal quotation marks omitted).
The Tenth Circuit also recognizes that Ashcroft v. Iqbal limited, but did not eliminate,
supervisory liability for government officials based on an employee’s or subordinate’s
constitutional violations.

See Garcia v. Casuas, 2011 WL 7444745, at *25-26 (D.N.M.

2011)(Browning, J.)(citing Dodds v. Richardson, 614 F.3d at 1199). The language that may
have altered the landscape for supervisory liability in Ashcroft v. Iqbal is: “Because vicarious
liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Governmentofficial defendant, through the official’s own individual actions, has violated the Constitution.”
Ashcroft v. Iqbal, 556 U.S. at 676. The Tenth Circuit in Dodds v. Richardson stated:
Whatever else can be said about Iqbal, and certainly much can be said, we
conclude the following basis of § 1983 liability survived it and ultimately resolves

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this case: § 1983 allows a plaintiff to impose liability upon a defendant-supervisor
who creates, promulgates, implements, or in some other way possesses
responsibility for the continued operation of a policy the enforcement (by the
defendant-supervisor or her subordinates) of which “subjects, or causes to be
subjected” that plaintiff “to the deprivation of any rights . . . secured by the
Constitution . . . .”
Dodds v. Richardson, 614 F.3d at 1199. The Tenth Circuit has noted, however, that “Iqbal may
very well have abrogated § 1983 supervisory liability as we previously understood it in this
circuit in ways we do not need to address to resolve this case.” Dodds v. Richardson, 614 F.3d at
1200.

It concluded that Ashcroft v. Iqbal did not alter “the Supreme Court’s previously

enunciated § 1983 causation and personal involvement analysis.” Dodds v. Richardson, 614
F.3d at 1200.

More specifically, the Tenth Circuit recognized that there must be “an

‘affirmative’ link . . . between the unconstitutional acts by their subordinates and their ‘adoption
of any plan or policy . . . -- express or otherwise -- showing their authorization or approval of
such misconduct.” Dodds v. Richardson, 614 F.3d at 1200-01.
The specific example that the Tenth Circuit used to illustrate this principle is Rizzo v.
Goode, 423 U.S. 362 (1976), where the plaintiff sought to hold a mayor, a police commissioner,
and other city officials liable under § 1983 for constitutional violations that unnamed individual
police officers committed. See Dodds v. Richardson, 614 F.3d at 1200 (quoting Rizzo v. Goode,
423 U.S. at 371). The Tenth Circuit noted that the Supreme Court in that case found a sufficient
link between the police misconduct and the city officials’ conduct, because there was a deliberate
plan by some of the named defendants to “crush the nascent labor organizations.” Dodds v.
Richardson, 614 F.3d at 1200 (quoting Rizzo v. Goode, 423 U.S. at 371).
LAW REGARDING BIVENS ACTIONS
In Bivens, the Supreme Court recognized that citizens may obtain money damages for
injuries suffered as a result of federal agents’ violation of the Fourth Amendment. See 403 U.S.

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at 395-397. “In Bivens -- proceeding on the theory that a right suggests a remedy -- this Court
‘recognized for the first time an implied private action for damages against federal officers
alleged to have violated a citizen’s constitutional rights.’” Ashcroft v. Iqbal, 556 U.S. at 675
(quoting Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001)). See Copar Pumice Co.,
Inc. v. Morris, No. CIV 07-0079 JB/ACT, 2009 WL 5201799, at *13 (D.N.M., Oct. 23,
2009)(Browning, J.) )(noting that, in Bivens, the Supreme Court held that, “‘where legal rights
have been invaded, and a federal statute provides for a general right to sue for such invasion,
federal courts may use any available remedy to make good the wrong done.’ 403 U.S. at 396–
397.”), aff’d 639 F.3d 1025 (10th Cir. 2011.
Bivens suits are “the ‘federal analog’ to suits brought against state officials under [42
U.S.C.§ 1983].” Ashcroft v. Iqbal, 556 U.S. at 675-76. Section 1983 of Title 42 of the United
States Code provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983. Unlike suits under § 1983, Bivens actions do not allow plaintiffs to seek
equitable relief; they may seek only damages.

See Bivens, 403 U.S. at 410 (Harlan, J.,

concurring)(“For people in Bivens’ shoes, it is damages or nothing.”). Additionally, a Bivens
suit is not available for every alleged constitutional violation that a federal actor commits. The
Supreme Court has explained that, where Congress “provides an alternative remedy,” which
Congress intends “by statutory language, by clear legislative history, or perhaps even by the
statutory remedy itself” to preclude a remedy in federal court, a federal court should decline to
exercise jurisdiction over the matter under Bivens. Bush v. Lucas, 462 U.S. 367, 378 (1983). A

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federal court should also decline to exercise jurisdiction under Bivens when “special factors
counseling hesitation,” Bivens, 403 U.S. at 396, are present, such as: (i) questions related to
federal fiscal policy, United States v. Standard Oil, Co., 332 U.S. 301, 311 (1947); (ii) the
“unique disciplinary structure of the military establishment” that a suit seeking damages for the
alleged violations of superior officers impacts, Chappel v. Wallace, 462 U.S. 296, 304 (1983);
and (iii) that a case “arise[s] out of or are in the course of activity incident to service” in the
military, United States v. Stanley, 483 U.S. 669, 684-85 (1987).
LAW REGARDING JUDICIAL IMMUNITY
“[J]udges of courts of superior or general jurisdiction are not liable to civil actions for
their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have
been done maliciously or corruptly.” Stump v. Sparkman, 435 U.S. 349, 355-56 (1978). That
same immunity continues even if the judge’s “exercise of authority is flawed by the commission
of grave procedural errors.” Stump v. Sparkman, 435 U.S. at 359.
The Supreme Court has held that the absolute judicial immunity of state judges was not
affected or abolished “by § 1983, which makes liable ‘every person’ who under color of law
deprives another person of his civil rights.” Pierson v. Ray, 386 U.S. 547, 554 (1967), overruled
in part on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). A judge’s immunity
from § 1983 liability “is overcome in only two sets of circumstances. First, a judge is not
immune from liability for nonjudicial acts, i.e., actions not taken in the judge’s judicial capacity.
Second, a judge is not immune for actions, though judicial in nature, taken in the complete
absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12 (1991)(citations omitted).
ALJs are likewise “entitled to absolute immunity from damages liability for their judicial
acts.” Butz v. Economou, 438 U.S. 478, 514 (1978). See id. at 512-13 (“We think that

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adjudication within a federal administrative agency shares enough of the characteristics of the
judicial process that those who participate in such adjudication should also be immune from suits
for damages.”). “There can be little doubt that the role of the modern federal hearing examiner
or administrative law judge . . . is ‘functionally comparable’ to that of a judge.”

Butz v.

Economou, 438 U.S. at 513. ALJs can “issue subpoenas, rule on proffers of evidence, regulate
the course of the hearing, and make or recommend decisions.” Butz v. Economou, 438 U.S. at
513. Judicial immunity applies “however erroneous [a judicial] act may have been, and however
injurious in its consequences it may have proved to the plaintiff,” and its availability cannot be
“affected by the motives with which . . . judicial acts are performed.” Cleaving v. Saxner, 474
U.S. 193, 199-200 (1985).
“Only accusations that a judge was not acting in his judicial capacity or that he acted in
the complete absence of all jurisdiction can overcome absolute immunity.” Guttman v. Khalsa,
446 F.3d 1027, 1034 (10th Cir. 2006)(Lucero, J.). Judicial immunity does not apply to every
action a judge takes:
The relevant cases demonstrate that the factors determining whether an act by a
judge is a “judicial” one relate to the nature of the act itself, i.e., whether it is a
function normally performed by a judge, and to the expectations of the parties,
i.e., whether they dealt with the judge in his judicial capacity.
Stump v. Sparkman, 435 U.S. at 362. See Thomas v. Kaven, 765 F.3d 1183, 1191 (10th Cir.
2014)(Tymkovich, J.)(“In determining whether particular acts of government officials are
eligible for absolute immunity, we apply a ‘functional approach . . . which looks to the nature of
the function performed, not the identity of the actor who performed it.’” (omission in the
original)(quoting Malik v. Arapahoe Cty. Dep’t of Soc. Servs., 191 F.3d 1306, 1414 (10th Cir.
1999))).

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In Duprey v. Twelfth Judicial District Court, 760 F. Supp. 2d 1180 (D.N.M.
2009)(Browning, J.), the Court concluded that the state defendant who acted as chairperson of
the judicial grievance board was entitled to absolute immunity, because his function was similar
to that of an administrative law judge in a quasi-judicial setting. See 760 F. Supp. 2d at 1204.
The Court concluded that the director of human resources for the New Mexico Administrative
Office of the Courts was not entitled to absolute immunity, because her role was ministerial and
mechanical. See 760 F. Supp. 2d at 1204. In analyzing each defendant’s function, the Court
focused on participation in the deliberative process and the exercise of independent judgment.
See 760 F. Supp. 2d at 1205. The Court determined that, because the human resources director
played a ministerial role and did not act at a judge’s direction, she was not entitled to judicial
immunity. See 760 F. Supp. 2d at 1208 (“An individual whose job at a judicial proceeding is to
run a tape recorder is not one who needs to be able to act according to her own convictions.”).
See also Braverman v. New Mexico, No. 11-0829, 2011 WL 6013587, at *20 (D.N.M. Oct. 19,
2011)(Browning, J.)(concluding that judicial immunity probably protects a state judge and
special master from suit when denying a motion for a temporary restraining order).
LAW REGARDING THE OFFICIAL IMMUNITY OF ALJS
Even when ALJs do not act in their judicial capacity -- and thus are not entitled to
absolute judicial immunity -- they may be entitled to absolute immunity from suit because of the
official immunity doctrine. See Strothman v. Gefreh, 739 F.2d 515, 518 (10th Cir. 1984). That
doctrine protects federal officials from tort liability for “‘acts done within the framework or
scope of their duties which necessarily involve the exercise of discretion which public policy
requires be made without fear of personal liability.’” Strothman v. Gefreh, 739 F.2d at 518

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(quoting Garner v. Rathburn, 346 F.2d 55, 56 (10th Cir. 1965)). A threefold inquiry determines
whether official immunity applies to a particular act:
(1) whether the defendant was acting within the scope of his official duties; (2)
whether the act complained of involved the exercise of judgment or discretion;
and (3) whether a grant of absolute immunity under the circumstances of the case
would further the policies underlying the official immunity doctrine. In making
this latter determination, a court should balance the extent to which maintenance
of the action would pose a threat to effective government against the harm
allegedly suffered by the plaintiff for which he seeks redress.
Strothman v. Gefreh, 739 F.2d at 518.

Because of the official immunity doctrine,

governmental officials are
free to exercise their duties unembarrassed by the fear of damage suits in respect
of acts done in the course of those duties -- suits which would consume time and
energies which would otherwise be devoted to governmental service and the
threat of which might appreciably inhibit the fearless, vigorous, and effective
administration of policies of government.
Barr v. Matteo, 360 U.S. 564, 571 (1959)(Harlan, J.)(plurality opinion). Official immunity is,
however, more limited than judicial immunity, because it applies only to violations of state tort
law and not to violations of federal statutory or constitutional law. See Strothman v. Gefreh, 739
F.2d at 520. See also Butz v. Economou, 438 U.S. at 478 (“[W]e are confident that Barr did not
purport to protect an official who has not only committed a wrong under local law, but also
violated those fundamental principles of fairness embodied in our Constitution.”); Barr v.
Matteo, 360 U.S. at 577 (Black, J., concurring)(“[I]f federal employees are to be subjected to
such restraints . . . , the restraint will have to be imposed expressly by Congress and not by the
general libel laws of the States or of the District of Columbia.”)
LAW REGARDING QUALIFIED IMMUNITY
Qualified immunity recognizes the “need to protect officials who are required to exercise
their discretion and the related public interest in encouraging the vigorous exercise of official
authority.” Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). “Qualified immunity protects
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federal and state officials from liability for discretionary functions, and from ‘the unwarranted
demands customarily imposed upon those defending a long drawn-out lawsuit.’” Roybal v. City
of Albuquerque, No. CIV 08-0181, 2009 WL 1329834, at *10 (D.N.M. April 28,
2009)(Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)). The Supreme Court
deems it “untenable to draw a distinction for purposes of immunity law between suits brought
against state officials under § 1983 and suits brought directly under the Constitution against
federal officials.” Butz v. Economu, 438 U.S. 478, 504 (1978). “The qualified immunity
analysis is the same whether the claims are brought under Bivens or pursuant to the post-Civil
War Civil Rights Acts.” Breidenbach v. Bolish, 126 F.3d 1288, 1291 (10th Cir. 1997), overruled
on other grounds as recognized in Currier v. Doran, 242 F.3d 905 (10th Cir. 2001).
Under § 1983 (invoked in this case) and Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 . . . (1971), a plaintiff may seek money damages from
government officials who have violated her constitutional or statutory rights. But
to ensure that fear of liability will not “unduly inhibit officials in the discharge of
their duties,” Anderson v. Creighton, 483 U.S. 635, 638 . . . (1987), the officials
may claim qualified immunity; so long as they have not violated a “clearly
established” right, they are shielded from personal liability, Harlow v. Fitzgerald,
457 U.S. 800, 818 . . . (1982). That means a court can often avoid ruling on the
plaintiff’s claim that a particular right exists. If prior case law has not clearly
settled the right, and so given officials fair notice of it, the court can simply
dismiss the claim for money damages. The court need never decide whether the
plaintiff's claim, even though novel or otherwise unsettled, in fact has merit.
Camreta v. Green, 563 U.S. 692, 705 (2011). Issues of qualified immunity are best resolved at
the “earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. at 232 (quoting Hunter
v. Bryant, 502 U.S. 224, 227 (1991)(per curiam)). “If qualified immunity is to mean anything, it
must mean that public employees who are just doing their jobs are generally immune from suit.”
Lewis v. Tripp, 604 F.3d 1221, 1230 (10th Cir. 2010).
Qualified immunity shields government officials from liability where “their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person
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would have known.” Pearson v. Callahan, 555 U.S. at 231 (quoting Harlow v. Fitzgerald, 457
U.S. at 818). Qualified immunity also shields officers who have “reasonable, but mistaken
beliefs,” and operates to protect officers from the sometimes “hazy border[s]” of the law.
Saucier v. Katz, 533 U.S. 194, 205 (2001). When a defendant asserts qualified immunity, the
plaintiff must demonstrate on the facts alleged: (i) that the defendant’s actions violated his or her
constitutional or statutory rights; and (ii) that the right was clearly established at the time of the
alleged misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009).
In evaluating whether the right was clearly established, a district court considers whether
the right was sufficiently clear that a reasonable government employee in the defendant’s shoes
would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep.
Sch. Dist., 473 F.3d 1323, 1327 (10th Cir. 2007). “A clearly established right is generally
defined as a right so thoroughly developed and consistently recognized under the law of the
jurisdiction as to be ‘indisputable’ and ‘unquestioned.’” Lobozzo v. Colorado Dept. Of
Corrections, 429 F. App’x 707, 710 (10th Cir. 2011)(unpublished)(quoting Zweibon v. Mitchell,
720 F.2d 162, 172-73 (D.C. Cir. 1983)).

“Ordinarily, in order for the law to be clearly

established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly
established weight of authority from other courts must have found the law to be as the plaintiff
maintains.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001). See Medina v. City & Cty. of
Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). On the other hand, the Supreme Court has
observed that it is generally not necessary to find a controlling decision declaring the “very
action in question . . . unlawful.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). “In
determining whether the right was ‘clearly established,’ the court assesses the objective legal
reasonableness of the action at the time of the alleged violation and asks whether ‘the contours of

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the right [were] sufficiently clear that a reasonable official would understand that what he is
doing violates that right.’” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th
Cir. 2001)(quoting Saucier v. Katz, 533 U.S. at 202). A court should inquire “whether the law
put officials on fair notice that the described conduct was unconstitutional” rather than engage in
“a scavenger hunt for cases with precisely the same facts.” Pierce v. Gilchrist, 359 F.3d 1279,
1298 (10th Cir. 2004).
The Supreme Court has clarified that the clearly established prong of the qualified
immunity test is a very high burden for the plaintiff: “A Government official’s conduct violates
clearly established law when, at the time of the challenged conduct, the contours of a right are
sufficiently clear that every reasonable official would have understood that what he is doing
violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). “In other words, ‘existing
precedent must have placed the statutory or constitutional question beyond debate,’” Reichle v.
Howards, 566 U.S. 658, 664 (2012)(quoting Ashcroft v. al-Kidd, 563 U.S. at 741), although a
case directly on point is not required, see Ashcroft v. al-Kidd, 563 U.S. at 741. “The operation
of this standard, however, depends substantially upon the level of generality at which the
relevant ‘legal rule’ is to be identified.” Anderson v. Creighton, 483 U.S. at 639. “The general
proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment
is of little help in determining whether the volatile nature of particular conduct is clearly
established.” Ashcroft v. al-Kidd, 563 U.S. at 742. The level of generality at which the legal
rule is defined is important, because qualified immunity shields officers who have “reasonable,
but mistaken beliefs,” as to the application of law to facts and operates to protect officers from
the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533 U.S. at 205.

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The Tenth Circuit held in Kerns v. Bader, 633 F.3d 1173 (10th Cir. 2011), that, although
“a case on point isn’t required if the impropriety of the defendant’s conduct is clear from existing
case law,” the law is not clearly established where “a distinction might make a constitutional
difference.” 663 F.3d at 1188 (emphasis in original). In Kerns v. Bader, dealing with the search
of a home, the Tenth Circuit explained that the relevant question “wasn’t whether we all have
some general privacy interest in our home,” but “whether it was beyond debate in 2005 that the
officers’ entry and search lacked legal justification.” 663 F.3d at 1183. Earlier Tenth Circuit
cases, clarifying the level of generality at which a legal rule must be defined, applied a sliding
scale to determine when the law is clearly established. See Casey v. City of Fed. Heights, 509
F.3d 1278, 1284 (10th Cir. 2007)(“The more obviously egregious the conduct in light of
prevailing constitutional principles, the less specificity is required from prior case law to clearly
establish the violation.”). “[W]hen an officer’s violation . . . is particularly clear . . . , [the Tenth
Circuit] does not require a second decision with greater specificity to clearly establish the law.”
Casey v. City of Fed. Heights, 509 F.3d at 1284. Furthermore, “general statements of the law are
not inherently incapable of giving fair and clear warning . . . .” Hope v. Pelzer, 536 U.S. 730,
741 (2002).
ANALYSIS
The Court determines, as a preliminary matter, that, although the Plaintiffs and the
Defendants have both attached matters outside the pleadings to their briefing, the Court will not
convert either of the motions to dismiss into a motion for summary judgment. The Court then
concludes that SSA regulations do not require NMDDS to provide notice of the name of the
individual -- as opposed to the facility -- that it designates to conduct a consultative evaluation.
The Court, thus, will grant the First Motion and dismiss the claims against NMDDS and Daniel

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Roper. The Court also concludes that, as an ALJ acting in her judicial capacity, absolute judicial
immunity protects Fernandez-Rice. The Court will, consequently, grant the Second Motion and
dismiss the claims against Fernandez-Rice.
I.

THE COURT WILL EXCLUDE MATTERS OUTSIDE OF THE PLEADINGS, SO
IT DOES NOT NEED TO CONVERT THE DEFENDANTS’ MOTIONS TO
DISMISS INTO MOTIONS FOR SUMMARY JUDGMENT.
Although the Plaintiffs and the Defendants have attached “matters outside the pleadings”

to their briefing, the Court will not convert the First Motion or the Second Motions into a motion
for summary judgment. See Fed. R. Civ. P. 12(d). Such conversion is necessary only if matters
outside the pleadings are both “presented to and not excluded by the court.” Fed. R. Civ. P.
12(d). The Court will exercise its discretion to exclude all of the attachments5 that the Plaintiffs
and the Defendants present except for the June Notice, the August Notice, and the November
Notice, which the Court considered in determining that NMDDS provided Griego notice of the
name of the facility scheduled to conduct her consultative evaluations. See supra at 4. The
Court may consider those three documents on a motion to dismiss, because Complaint references
them, they are central to the Plaintiffs’ claims, and their authenticity is unquestioned. See GFF
5

The Defendants attached correspondence between NMDDS and Armstrong’s office to
show that Griego received reasonable notice of the individual who would perform her
consultative examination’s name. The Plaintiffs attached affidavits from Armstrong and Nuno
Cardoso, Armstrong’s paralegal, to contest that point. See Affidavit of Michael D. Armstrong,
dated April 14, 2016, filed April 16, 2016 (Doc. 16-1); Affidavit of Nuno Cardoso, dated April
14, 2016, filed April 16, 2016 (Doc. 16-2). Because the Court concludes that NMDDS complied
with SSA regulations by providing the facility’s name to Griego, the Court does not need to
consider that attached correspondence or affidavits to rule on the First Motion.
In order to show that Fernandez-Rice was not biased against Armstrong’s clients, the
Defendants attached an affidavit by an ODAR employee stating that Fernandez-Rice ruled in
favor of Armstrong’s clients 58.18% of the time whereas she ruled in favor of claimants who
were not Armstrong’s clients 48.18% of the time. Declaration of Melanie Brace (dated April 18,
2016) ¶¶ 4-5, at 2, filed April 19, 2016 (Doc. 18-2). Because the Court that concludes that
Fernandez-Rice is entitled to immunity, it does not need to determine whether she was biased
against Armstrong’s clients in order to rule on the Second Motion.

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Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997)(Kelly,
J.)(“[I]f a plaintiff does not incorporate by reference or attach a document to its complaint, but
the document is referred to in the complaint and is central to the plaintiff’s claim, a defendant
may submit an indisputably authentic copy to the court to be considered on a motion to
dismiss.”).
II.

BECAUSE SSA REGULATIONS DO NOT REQUIRE NMDDS TO PROVIDE
NOTICE OF THE INDIVIDUAL WHO WILL PERFORM A CONSULTATIVE
EXAMINATION, THE COURT WILL GRANT THE FIRST MOTION.
The Court must first decide whether the Albers MOO’s legal determinations collaterally

estop the Defendants in this case. Because the Court concludes that collateral estoppel does not
apply, it next analyzes the relevant SSA regulations.

The Court determines that NMDDS

provides “reasonable notice of . . . the name of the person or facility” that will conduct a
consultative examination, 20 C.F.R. § 404.1517, when it provides reasonable notice of the name
of the facility that will conduct the consultative examination. Consequently, the Court will grant
the First Motion and dismiss the claims against NMDDS and Daniel Roper.
A.

OFFENSIVE COLLATERAL ESTOPPEL DOES NOT PRECLUDE THE
DEFENDANTS FROM LITIGATING THE ISSUES IN THIS CASE.

The Court that concludes that the Albers MOO does not collaterally estop the
Defendants. The Court has two alternate bases for that conclusion. First, the parties to this case
were not parties to the Albers MOO. Second, non-mutual offensive collateral estoppel does not
bind the federal government.
Only the parties to a proceeding and those “in privity” with them are collaterally estopped
by a judgment rendered in that proceeding. 18A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 4449, at 330 (2d ed. 2017). The Plaintiffs concede that
“[c]ertainly the named parties to this case are different.” First Response at 8. The closest that

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the Plaintiffs come to alleging that any of the parties to this case are in Albers MOO parties is
noting that the SSA was the Albers MOO defendant and that the SSA’s Acting Commissioner
filed the First Motion “standing in place of” the named Defendants. First Response at 9 (quoting
First Motion at 1).
“The most direct basis for applying preclusion against a nonparty rests on actual
participation in prior litigation.” 18A Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 4451, at 368. See Restatement(Second) of Judgments § 39 (“A person who is
not a party to an action but who controls or substantially participates in the control of the
presentation on behalf of a party is bound by the determination of issues decided as though he
were a party.”). The rationale for that rule is that a party that controlled prior litigation “has had
its day in court and should be concluded by the result.” See Restatement(Second) of Judgments
§ 39 cmt. a. That rule indicates, however, that the named Defendants in this case are not bound
by the Albers MOO, because none of them controlled the SSA’s presentation in the Albers
MOO. Instead, that rule shows that the SSA will be bound by this case’s legal determinations
even though the SSA is not a named Defendant. The Albers MOO, thus, does not bind the
named Defendants.
Collateral estoppel would not apply even if -- because the SSA filed briefing on behalf of
the named Defendants, see First Motion at 1, Second Motion at 1 -- the Court treats this case as a
suit against the SSA. The SSA was a party to the Albers MOO, so the SSA could be bound by
the Albers MOO’s legal determinations -- even though the Albers plaintiffs are not present in
this case -- under the ordinary principles of non-mutual offensive collateral estoppel. See 18A
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4464, at 692-93.
Non-mutual offensive collateral estoppel does not apply, however, to the federal government.

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See United States v. Mendoza, 464 U.S. 154, 162 (1984). Consequently, the Albers MOO does
not collaterally estop the SSA.
B.

NMDDS DOES NOT NEED TO NOTIFY APPLICANTS OF THE
INDIVIDUAL
CONDUCTING
THEIR
CONSULTATIVE
EXAMINATION’S NAME.

The Court finds much of the Albers MOO’s reasoning persuasive, but it reaches a
different ultimate conclusion. When NMDDS arranges for a consultative examination for a
disability-benefits applicant, it must provide “reasonable notice of the date, time, and place the
examination or test will be given, and the name of the person or facility who will do it.” 20
C.F.R. § 404.1517. Read in isolation, NMDDS satisfies its notice obligation when it provides
reasonable notice of the name of the facility that will conduct the consultative examination, as it
did in Griego’s case. See June Notice at 1; August Notice at 1; November Notice at 1.
That reading of the regulation is consistent with the model notification forms that the
Plaintiffs cite. See First Response at 8-9. The POMS contains two model notification forms.
One form has a generic “Name and Address” field, which could refer to the name and address of
either an individual or a facility, Model 1 CE appointment notice, filed April 16, 2016 (Doc. 164), while the other form calls for the name of the “Medical Evaluator,” which suggests an
individual, Model 2 CE appointment notice, filed April 16, 2016 (Doc. 16-4). Taken together,
those two forms suggest that § 404.1517 permits NMDDS to provide notice of either the name of
a facility or the name of an individual.
As noted by the Albers MOO, however, the analysis becomes somewhat more
complicated when one considers 20 CFR § 404.1519l. See Albers MOO at 4-5. That regulation
provides that applicants “may object to your being examined by a medical source we have
designated to perform a consultative examination” and that “[i]f there is a good reason for the
objection, we will schedule the examination with another medical source.”
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20 C.F.R.

§ 404.1519j. That the regulation contemplates replacing a medical source following an objection
indicates that § 404.1519j provides a right to object before an examination occurs. See Albers
MOO at 5. The right to object, in advance, to a particular medical source would be vacuous if an
applicant could not know the name of the designated medical source beforehand. See Albers
MOO at 4.
According to the Albers MOO, medical sources must be individuals, because medical
sources must have qualifications that only individuals possess, i.e., they must “be currently
licensed in the State and have the training and experience to perform the type of examination or
test we will request.” 20 C.F.R. § 404.1519g. See Albers MOO at 4.6 An applicant’s ability to
object, in advance, to the medical source that will conduct their consultative examination thus
depends on knowing the name of the individual designated to perform the examination. See
Albers MOO at 4-5. It follows, again according to the Albers MOO, that § 404.1517 can be
satisfied only by providing reasonable notice of the individual -- and not the facility -- who will
perform a consultative examination; otherwise an applicant’s right to object under § 404.1519j
would be meaningless. See Albers MOO at 5.
The Court takes issue with that last step, because a § 404.1517 notice is not the only way
an applicant can learn who will conduct their consultative examination. Applicants can simply

6

The Court does not find the Albers MOO’s reasoning on this point persuasive. That a
medical source must be licensed does not indicate that a facility cannot be a medical source;
hospitals, for example, must generally be licensed. See, e.g., Licensing Requirements - General
Hospitals, Texas Department of State Health Services, http://www.dshs.texas.gov/
facilities/hospitals/general.aspx (last updated January 13, 2015). Just as corporations act through
their officers and employees, so too can facilities possess training and expertise by employing
natural persons with those qualities. Because a facility can qualify as a “medical source,” as the
SSA regulations use that term, that interpretation provides further support for the proposition that
providing reasonable notice of a facility’s name satisfies § 404.1517’s notice requirement. In
any case, the Court reaches that conclusion even if facilities cannot qualify as medical sources.

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call and ask. See June Notice at 1 (“If you have questions, please call [phone].”).
Applicants can thus exercise their right to object under § 404.1519j even if a § 404.1517 notice
lists the name of a facility and not an individual. While § 404.1519j implies that NMDDS has a
duty “to disclose the names of the examining physicians,” Albers MOO at 5, a duty to disclose is
not equivalent to a duty to take affirmative steps to provide notice to every applicant. Instead,
NMDDS complies with its duty to disclose -- implicit in § 404.1519j -- if it makes the names of
individuals who will perform consultative examinations available to applicants upon request.
The alternative -- that § 404.1517 notices must contain all information that an applicant
needs to object under § 404.1519j -- is untenable. Applicants can object to “the presence of a
language barrier,” 20 C.F.R. § 404.1519j; that possibility does not mean, however, that courts
should read a linguistic-disclosure requirement into § 404.1517. Applicants can also object to
“the medical source’s office location (e.g., 2nd floor, no elevator),” 20 C.F.R. § 1519j; that
possibility does not mean that NMDDS must attach blueprints to its § 404.1517 notices.
Because NMDDS has complied with its duties under the SSA regulations -- by notifying
Griego of the name of the facility designated to perform her consultative examinations, see June
Notice at 1; August Notice at 1; November Notice at 1 -- the Court will deny the Plaintiffs’
petition for a writ of mandamus. The Plaintiffs conceded at the motion hearing that, “[i]f the
court . . . found that [the] Albers decision was mistaken, and that the regulations do not require
. . . the timely notice of the names of the providers, then that would be dispositive of the
declaratory judgment, and the injunctive relief.” Tr. at 56:17-23 (Moore). The Court agrees that
-- in light of the Court’s interpretation of 20 C.F.R. § 404.1517 -- the Complaint does not state a
plausible claim for either declaratory or injunctive relief. Consequently, the Court will grant the
First Motion, and dismiss all of the claims against NMDDS and Daniel Roper.

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III.

BECAUSE FERNANDEZ-RICE IS ENTITLED TO ABSOLUTE IMMUNITY,
THE COURT WILL GRANT THE SECOND MOTION.
The Court concludes that Fernandez-Rice was acting in her judicial capacity when she

referred Armstrong to ODAR for investigation, so she is entitled to absolute judicial immunity.
“[W]hether an act by a judge is a ‘judicial’ one depends on two factors”: (i) “the nature of the act
itself, i.e., whether it is a function normally performed by a judge”; and (ii) “the expectations of
the parties, i.e., whether they dealt with the judge in his judicial capacity.” Stump v. Sparkman,
435 U.S. 349, 362 (1978).
One “function normally performed by a judge,” Stump v. Sparkman, 435 U.S. at 362, is
exercising control over judicial proceedings and the attorneys that appear before them. In the
words of Chief Justice Marshall, “[t]he power is one which ought to be exercised with great
caution, but which is, we think, incidental to all Courts . . . .” Ex parte Burr, 22 U.S. 529, 531
(1824)(Marshall, C.J.). See Chambers v. Nasco, Inc., 501 U.S. 32, 42 (1991)(White, J.)(“[T]he
Court has held that a federal court has the power to control admission to its bar and to discipline
attorneys who appear before it.”).
ALJs do not have the same powers as a court established under Article III of the
Constitution of the United States of America, see Interstate Commerce Comm’n v. Brimson, 154
U.S. 447, 485 (1894)(Harlan, J.)(stating that an administrative agency “could not, under our
system of government, and consistently with due process of law, be invested with authority to
compel obedience to its orders by a judgment of fine or imprisonment”), but they, too, “must
control the hearing,” Morrell E. Mullins, Manual for Administrative Law Judges, 23 J. Nat’l
Ass’n Admin. L. Judges 102 (2004)(“ALJ Manual”). See id. at 103 (“An important aspect of the
judicial duty is to maintain control of the proceedings.”). An ALJ, no less than any other judge,
must

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[d]eter counsel who would try to dominate or manage a hearing. The ALJ must be
alert to detect and restrain such counsel, whose tactics take many forms. They
may stall on cross-examination until noon or evening recess to get time to think of
more questions. They may use questionable or even counterproductive tactics to
contest the ALJ’s rulings: for example, by incessant argument or by repeated
inconsequential changes in the form of a stricken question. . . . If these tactics
are successful, they may produce in opposing counsel not only animosity but
emulation. The resulting record is unmanageable.
....
If tempers become short and an altercation threatens to disrupt the hearing,
the ALJ must restore order. . . . If counsel, a witness, or any person in the hearing
room becomes unruly or offensive in remarks or manner, the ALJ should assert
control, express disapproval of the opprobrious conduct and warn against
repetition.
....
A final resort is to exclude counsel from further participation in the case,
to take prejudicial action against the client if authorized by statute or rule, or to
recommend disciplinary action by the agency.
ALJ Manual at 103-04 (emphasis added).
Consequently, when Fernandez-Rice referred Armstrong to ODAR based on an
allegation that Armstrong’s “objections, on behalf of his clients, to consultative evaluations . . .
are ethical misconduct,” Complaint ¶ 27, at 5, and on an allegation that Armstrong’s conduct
“constituted advisement to his clients not to comply with Social Security rules and regulations,”
Complaint ¶ 28, at 5, she was performing part of her job as an ALJ by regulating the conduct of
the attorneys who appeared before her in about the only way the SSA rules permit. FernandezRice was, thus, performing a function ordinarily performed by a judge even though she did not
preside over the subsequent ODAR investigation. Cf. Doyle v. Camelot Care Centers, Inc., 305
F.3d 603, 622 (7th Cir. 2002)(determining that two Chief ALJs had absolute immunity
concerning their docketing decisions even when those ALJs did not preside over the docketed
hearing). Because there is no indication that Armstrong or anyone else expected to deal with

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Fernandez-Rice in any capacity other than as an ALJ, the two factors articulated in Stump v.
Sparkman are present in this case. It follows that Fernandez-Rice is entitled to absolute judicial
immunity for referring Armstrong to ODAR for investigation.
Fernandez-Rice was also acting as a judge when she allegedly exhibited bias towards
Armstrong’s clients when they appeared before her, see Complaint ¶ 38, at 7, so absolute judicial
immunity bars an individual-capacity suit against Fernandez-Rice for such bias. See Cooney v.
Rossiter, 2008 WL 3889945, at *5 (N.D. Ill. 2008)(applying absolute immunity to an ALJ’s
recusal refusal). Consequently, the Court will grant the Second Motion and dismiss all of the
claims against Fernandez-Rice, in her individual capacity.
Finally, even if Fernandez-Rice is not entitled to absolute immunity, she is still entitled to
qualified immunity. The Albers MOO, as a single unpublished district court Memorandum
Opinion and Order, does not qualify as clearly established law, and the Court has found no
relevant Supreme Court or Tenth Circuit cases. There is, therefore, no evidence that FernandezRice violated clearly established law, so qualified immunity bars Armstrong’s claims against her.
IT IS ORDERED that: (i) the Defendant’s Motion to Dismiss Complaint, filed March
15, 2016 (Doc. 8) is granted; and (ii) the Defendant’s Motion to Dismiss Complaint Against
Administrative Law Judge Miriam Fernandez-Rice, filed April 19, 2016 (Doc. 18) is granted.

________________________________
UNITED STATES DISTRICT JUDGE

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Counsel:
Maureen A Sanders
Brian L. Moore
Sanders & Westbrook, PC
Albuquerque, New Mexico
Attorneys for the Plaintiffs
James D. Tierney
Acting United States Attorney
Manuel Lucero
Assistant United States Attorney
District of New Mexico
United States Attorney’s Office
Albuquerque, New Mexico
-- and -Gregory E. White
Special Assistant United States Attorney
Office of General Counsel
Social Security Administration
Dallas, Texas
Attorneys for the Defendants

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