1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 ROLLINGTON FERGUSON, Case No. 4:19-cv-05262-YGR

7 Plaintiff, ORDER DENYING MOTION TO ALTER/AMEND JUDGMENT 8 vs.

9 CENTERS FOR MEDICARE AND MEDICAID Re: Dkt. No. 46 SERVICES, 10 Defendant. 11 12 Pro se plaintiff Rollington Ferguson brings this action against defendant Centers for 13 Medicare and Medicaid Services (“CMS”) seeking judicial review of a decision issued by the 14 Departmental Appeals Board of the United States Department of Health and Human Services. 15 Ferguson alleges violation of his rights under the due process clause of the Fourteenth and the 16 Fifth Amendments, and unjust enrichment. 17 Now before the Court is Ferguson’s motion to alter or amend the judgment under Federal 18 Rule of Civil Procedure 59(e). (Dkt. No. 46.) The Court previously dismissed Ferguson’s 19 complaint due the running of a sixty-day statute of limitations period. (See Dkt. No. 45.) CMS 20 opposes the motion. (Dkt. No. 47.) The motion is now fully briefed. (See Dkt. No. 48.) 21 Having carefully considered the pleadings in this action and the papers submitted on each 22 motion, and for the reasons set forth below, Ferguson’s motion to alter or amend the judgment is 23 DENIED. 24 I. LEGAL STANDARD1 25 Federal Rule of Civil Procedure 59 permits a party to file a motion for a new trial or to 26 “alter or amend a judgment no later than 28 days after the entry of the judgment.” Fed. Rule Civ. 27 1 Proc. 59(e). “In general, there are four basic grounds upon which a Rule 59(e) motion may be 2 granted: (1) if such a motion is necessary to correct manifest errors of law or fact upon which the 3 judgment rests; (2) if such a motion is necessary to present newly discovered or previously 4 unavailable evidence; (3) if such motion is necessary to prevent manifest injustice; or (4) if the 5 amendment is justified by an intervening change in controlling law.” Allstate Ins. Co. v. Herron, 6

(9th Cir. 2011). 7 Although a Rule 59(e) motion permits a district court to alter or amend a judgment, it “may 8 not be used to relitigate old matters, or to raise arguments or present evidence that could have been 9 raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker,

, 485 n.5 (2008) 10 (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure § 2810,1, pg 127-128 (2d ed. 11 1995)). The Ninth Circuit has noted that relief from judgment under Rule 59(e) is “extraordinary” 12 and “should be used sparingly.” McDowell v. Calderon,

, 1255 n. 1 (9th Cir. 1999) 13 (citation omitted); see also Weeks v. Bayer,

(9th Cir. 2001) (noting that a 14 moving party must overcome a “high hurdle” to obtain relief under Rule 59(e) since only “highly 15 unusual circumstances justify its application). In other words, the rule is an “extraordinary 16 remedy, to be used sparingly in the interest of finality and conservation of judicial resources.” 17 Kona Enterprises, Inc, v. Estate of Bishop,

, 890 (9th Cir. 2000). 18 II. ANALYSIS 19 Ferguson argues that the judgment should be altered or amended under Rule 59(e) on the 20 basis to (1) correct manifest errors of fact and (2) prevent manifest injustice. 21 In sum, Ferguson relies on purported new evidence in the form of an excerpt from a CMS 22 manual, and a statement regarding judicial review on CMS’ website to argue that there is a 23 manifest error of facts and law in regards to the calculation of the dates, and that it would be a 24 manifest injustice not to consider this information. (See generally Dkt. No. 46, citing 42 U.S.C. 25 § 405.1136.) Specifically, Ferguson points to CMS’s Manual Publication 100-04 regarding 26 medical claims processing defining date of receipt as “a determination, decision on notice is 27 presumed to have been received by the party five days from the date included on the determination 1 notice five days after we mail it unless you can show that you received it later.” (See Dkt. No. 46- 2 3.) 3 In its prior Order, the Court discussed in detail the statutory framework and its application 4 in this case. The current motion does not provide an extraordinary basis to alter or amend that 5 decision, either substantively or procedurally. Substantively, the CMS manual does not change 6 the result. Rather, it merely provides guidance on administrative procedures, and solely to 7 requests for review determinations on entitlement claims to Medicare benefits made by or to the 8 Medicare Appeals Council. It has no application set to the calculation of the dates for purposes of 9 judicial review in the federal court. Further, the “date of receipt” does not apply to determinations 10 regarding provider enrollment, as they are handled by the Board. 42 C.F.R. Part 498; Regulatory 11 Procedures for Board Review, HHS, https://www.hhs.gov/about/agencies/dab/different-appeals- 12 at-dab/appeals-to-board/regulations/index.html (May 8, 2017) (“[R]egulations that provide for 13 Board review. . . include the following: . . 42 C.F.R. Part 498, for review of decisions. . . affecting 14 a provider’s or supplier’s enrollment in the Medicare. . . .”). 15 Moreover, Ferguson’s arguments are procedurally without merit. In general, an argument 16 that could have been raised in an earlier dispositive motion that is later raised in a Rule 59(e) 17 motion is procedurally improper. Kona, 229 F.3d at 890; see also Vega v. Commissioner of Social 18 Security Administration,

(9th Cir. 2012) (denying a Rule 59(e) motion when the 19 argument could have been raised in the earlier dispositive motion). Here, Ferguson states that 20 although the manual excerpt, website, and timeline citation were available at the time of the initial 21 pleadings, they were discovered later in his research on the earlier motion to dismiss. The Court 22 acknowledges that Ferguson attempted to submit the manual for judicial notice after briefing on 23 the motion to dismiss was concluded. 24 Even considering the new submitted materials, Ferguson’s arguments and materials do not 25 justify a different outcome on the judgment.2 In short, Ferguson has only shown his continued 26 2 Similarly, plaintiff argues that particular statutes, as well as other excerpts should have 27 been applied to the initial case. However, for similar reasons as described above, the statutes and 1 disagreement, but has failed to show any clear error or manifest injustice. See Bey v. Malec, No. 2 18-cv-02626-SI,

, at *2 (‘While courts within the Ninth Circuit have not strictly 3 || defined what constitutes clear error for Rule 59(e) motions, courts have generally found that ‘mere 4 || doubts or disagreement about the wisdom of a prior decision of . . . [the] court will not 5 suffice’... Rather, for there to be clear error, the previous decision ‘must strike [a court] as more 6 || than just maybe or probably wrong; it must be dead wrong” (quoting Teamsters Local 617 7 Pension and Welfare Funds v. Apollo Grp., Inc.,

(D. Ariz. Mar. 30, 2012)); 8 Twentieth Century-Fox Film Corp. v. Dunnahoo,

(9th Cir. 1981) 9 (demonstrating that a litigant’s dissatisfaction with a judgment is not sufficient to demonstrate the 10 || circumstances necessary to permit relief from a judgment, denying a Rule 59(e) motion). 11 || TM. CONCLUSION 12 For the foregoing reasons, the Court DENIES the motion to alter or amend judgment. The 13 Clerk of the Court is directed to enter judgment in favor of CMS. 14 This Order terminates Docket Number 46. 3 15 IT Is SO ORDERED. 16

|| Dated: December 2, 2020 Loypree Eggo ess 18 YVONNE GONZALEZ ROGER UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 therefore lack merit.