Thierry v. Secretary of Health and Human Services

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHRISTOPHER MATTHEW THIERRY, §
Plaintiff, §
§
v. § CIVIL ACTION NO. 4:25-cv-3765
§
U.S. SECRETARY OF HEALTH AND HUMAN §
SERVICES, §
Defendant. §
MEMORANDUM AND RECOMMENDATION
Before the Court is Defendant U.S. Secretary of Health and Human Services’
Motion to Dismiss pro se Plaintiff Christopher Matthew Thierry’s Complaint for
lack of subject matter jurisdiction.1 ECF 15. Plaintiff did not file a timely response
as required by Local Rules of the Southern District of Texas 7.3 and 7.4. The Court
recommends that Defendant’s Motion to Dismiss be GRANTED.
I. Background
According to undisputed facts in the record, Plaintiff underwent oral surgery
on June 13, 2024. ECF 13 at 65-66. He was billed $115.00 for an initial consultation
and $1,656.90 for the surgery. Id. Plaintiff submitted a claim for reimbursement to
Medicare. Id. at 195-199. The Centers for Medicare and Medicaid Services
1 The District Judge referred this case to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B), the Cost and Delay Reduction Plan under the Civil Justice Reform Act,
and Federal Rule of Civil Procedure 72. ECF 4.
United States District Court
Southern District of Texas
ENTERED
March 06, 2026
Nathan Ochsner, Clerk
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(“CMS”) denied his claim on initial review and a contractor upheld that decision on
redetermination. Plaintiff then submitted a request for reconsideration by a
Medicare Qualified Independent Contractor (QIC), which the QIC received on
November 4, 2024. Id. at 191-94. On November 11, 2024, the QIC sent Plaintiff a
letter informing Plaintiff that any additional information he wished the QIC to
review was required to be submitted within 14 days of the date of the letter. Id. at
192. On December 16, 2024, the QIC sent Plaintiff a letter informing him that they
needed additional information to conduct a thorough review and warning him that if
the QIC did not receive the information by December 30, 2024 it would make a
determination based on the current documentation submitted for review. Id. at 247-
48. Plaintiff received the letter but did not meet the deadline. Id. at 6-7; 109. On
January 1, 2025, the QIC issued a letter notifying Plaintiff of the QIC’s unfavorable
Medicare Reconsideration Decision. Id. at 120-21. The letter included instructions
for appealing the Decision to an Administrative Law Judge within 60 days of receipt
of the letter, which is presumed to be 5 days after the date of the letter. Id.
On May 2, 2025, 122 days after the date of the letter and 127 days after the
presumed date of receipt of the letter, Plaintiff submitted a Request for
Administrative Law Judge (ALJ) Hearing or Review of Dismissal. Id. at 115-18.
The Request states only that he responded to letters as soon as he could. Id at 115.
Plaintiff did not ask for leave to submit the request late or show any good cause for
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missing the deadline. Id. On May 8, 2025, the ALJ issued an Order of Dismissal
because Plaintiff “did not provide a reason for the untimely filing of the request for
hearing, and there is no indication of any limitations that prevented the Appellant
from understanding the need to timely file the appeal, or from doing so. As a result,
there is insufficient evidence to establish good cause within the meaning of 42 C.F.R.
§ 405.942(b)(2) and (3) to extend the time period to file the request for hearing.” Id.
at 107. Plaintiff requested review by the Medicare Appeals Council arguing, without
evidentiary support, that the response to his request for medical records from the
surgeon was delayed and he has a “brain injury” resulting in “cognitive defects.” Id.
at 12-13. On June 25, 2025 the Council issued an Order denying his request for
review. Id. at 9-11.
Plaintiff filed a Complaint in this Court on August 4, 2025 seeking review of
the denial of Medicare benefits pursuant to 42 U.S.C. § 1395ff(b)(1), which
incorporates 42 U.S.C. § 405(g) (the Social Security Act provision governing
judicial review). ECF 1. Defendant filed the pending Motion to Dismiss on
December 12, 2025. ECF 15. Plaintiff did not file a timely response and the Motion
is now ripe for determination. It is not appropriate to grant the motion to dismiss
solely based on Plaintiff's failure to respond but the Court will rule on the undisputed
facts in the record before it. Watson v. U.S. ex rel. Lerma, 285 F. App'x 140, 143
(5th Cir. 2008); Arthurton v. CarMax Auto Fin., No. 4:25-CV-02708, 2025 WL
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3542156, at *1 (S.D. Tex. Nov. 17, 2025), report and recommendation adopted, No.
4:25-CV-02708, 2025 WL 3541693 (S.D. Tex. Dec. 5, 2025).
II. Rule 12(b)(1) Standards
When a defendant challenges subject matter jurisdiction, the court “is free to
weigh the evidence and resolve factual disputes in order to satisfy itself that it has
power to hear the case.” Montez v. Dep’t of the Navy, 392 F.3d 147, 149 (5th Cir.
2004); Krim v. Pcorder.com, 402 F.3d 489, 494 (5th Cir. 2005). The Court may
consider any of the following in resolving a Rule 12(b)(1) motion: (1) the complaint
alone; (2) the complaint supplemented by the undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts plus the court's
resolution of disputed facts. Hopkins v. Wayside Schs., No. 23-50600, 2024 WL
3738478, at *4 (5th Cir. Aug. 9, 2024); Schaeffler v. United States, 889 F.3d 238,
242 (5th Cir. 2018). When a Defendant files a motion under Rule 12(b)(1), the
plaintiff bears the burden of establishing subject matter jurisdiction. Exelon Wind 1,
L.L.C. v. Nelson, 766 F.3d 380, 388 (5th Cir. 2014). If the plaintiff fails to meet his
burden, the case must be dismissed. Id.
III. Analysis
A. Plaintiff’s case should be dismissed because he failed to exhaust his
administrative remedies.
The CMS administers the Medicare Program under the Social Security Act.
Under the Act, when a claim is denied by CMS (or its contractors) on initial review,
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redetermination, and reconsideration, a claimant may request an evidentiary hearing
before an ALJ. 42 U.S.C. § 1395ff; 42 C.F.R. §§ 405.920, 405.940, 405.960 &
405.1000. As explained above, the claimant must request an ALJ hearing within 60
days following receipt of the reconsideration decision, unless the ALJ determines
good cause exists for a late request. See, e.g., 42 C.F.R. §§ 405.942(b),
405.1002(a)(1), 405.1014(e). Absent evidence to the contrary, the date of the
claimant’s receipt of the reconsideration decision is presumed to be 5 calendar days
after the date on the reconsideration decision. 42 C.F.R. §§ 405.1002(a)(3),
405.1014(c)(1).
If the ALJ renders an unfavorable decision, the claimant may request review
by the Medicare Review Council, which may adopt, modify, or reverse the ALJ’s
decision. 42 C.F.R. §§ 405.1100(a), 405.1108(a)-(b). If the Council renders an
unfavorable decision, the claimant may seek judicial review in federal court pursuant
to 42 C.F.R. §§ 405.1130, 405(g). “Congress has divested courts of subject-matter
jurisdiction on any claim arising under the Medicare statute except as provided in 42
U.S.C. § 405(g), which is the ‘sole avenue for judicial review for all ‘claim[s] arising
under’ Medicare.” Baylor All Saints Med. Ctr. v. Kennedy, 161 F.4th 298, 302 (5th
Cir. 2025) (quoting Heckler v. Ringer, 466 U.S. 602, 615 (1984)); Physician Hosps.
of Am. v. Sebelius, 691 F.3d 649, 653 (5th Cir. 2012) (“Judicial review of [a
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[Medicare claim] is available only after a party first presents the claim to the
Secretary and receives a final decision.”).
In this case, Plaintiff did not make a timely request for hearing before an ALJ.
ECF 13 at 107, 115-18. 42 U.S.C. § 405(g) limits judicial review to “any final
decision . . . made after a hearing to which [the claimant] was a party.” Baylor All
Saints Med. Ctr., 161 F.4th at (holding that federal courts lack jurisdiction to
adjudicate Medicare cases prior to the Secretary making a “final decision ... made
after a hearing to which he was a party,” citing 42 U.S.C. § 405(g)). Due to
Plaintiff’s untimely hearing request, no hearing was held before an ALJ and thus no
final decision subject to judicial review, as defined by the Act, has been made.
Therefore, Defendant’s Motion to Dismiss should be granted and Plaintiff’s case
should be dismissed.
B. Plaintiff’s case should be dismissed because it does not meet the
jurisdictional minimum amount in controversy.
While § 405(g) does not include a jurisdictional minimum for an appeal from
a final decision of the Commissioner of Social Security, Congress chose to impose
a jurisdictional minimum amount in controversy for judicial review of final
decisions in the Medicare Act. 42 U.S.C. §§1395ff(b)(1)(E)(i), (iii). For requests
for judicial review filed on or after January 1, 2025, the jurisdictional minimum
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amount in controversy is $1,900.2 89 Fed. Reg. 79294-03, 2024 WL 4299304 (Sept.
27, 2024). Plaintiff represents his claim is for $1,771.90 ($1,656.90 for surgery plus
$115 for a consultation).3 ECF 1 at 3; ECF 13 at 195-99. Because Plaintiff’s claim
falls below the $1,900 minimum jurisdictional amount, this Court lacks jurisdiction
to review the claim.
IV. Conclusion and Recommendation
For the reasons discussed above the Court RECOMMENDS that Defendant’s
Motion to Dismiss (ECF 15) be GRANTED and this case be dismissed without
prejudice for lack of subject matter jurisdiction.
The Clerk of the Court shall send copies of the memorandum and
recommendation to the respective parties, who will then have fourteen days to file
written objections, pursuant to 28 U.S.C. § 636(b)(1)(C). Failure to file written
objections within the time period provided will bar an aggrieved party from attacking
the factual findings and legal conclusions on appeal. Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on
other grounds.
2 The statutory minimum for 2024 when his claim was initially filed.with CMS was $1,840. 89
Fed. Reg. 79294-03, 2024 WL 4299304 (Sept. 27, 2024).
3 Defendant contends the amount of his claim is $1,656.90. ECF 15. The difference is immaterial
as both parties’ contentions are under the $1,900 minimum.
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Christina A. Bryan
United States Magistrate Judge
Signed on March 06, 2026, at Houston, Texas.
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