Michael Lawton, MD, MBA, DAB No. 3077 (2022)

DETERMINATION TO DECLINE REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

On August 30, 2022, Michael Lawton, MD (Petitioner), filed with the Departmental Appeals Board a document which we treated as a notice of appeal of the Administrative Law Judge (ALJ) dismissal in Michael Lawton, CRD Docket No. C-22-621 (2022).  Petitioner had requested a hearing on the Inspector General’s (I.G.) 1999 exclusion of Petitioner.  The basis of the exclusion was Petitioner’s default on student loans borrowed through the Health Education Assistance Loan (HEAL) program, pursuant to section 1128(b)(14) of the Social Security Act.  The ALJ determined the regulations did not authorize ALJ review of the issues Petitioner raised or the ability to grant the relief sought and dismissed the request in accordance with 42 C.F.R. § 1005.2(e).  After reviewing the record to evaluate the issues presented, we have determined that we need not render a separate decision.  Pursuant to 42 C.F.R. § 1005.21(g), we therefore decline review of and summarily affirm the ALJ’s dismissal.

The issue before the Board in this matter is not whether the I.G. had a basis to exclude Petitioner but rather whether the ALJ properly dismissed Petitioner’s request for hearing.  Petitioner’s assertions that, despite the Board’s final decision affirming the exclusion in 2001, the ALJ (and evidently the Board) continue to have authority to review the exclusion is unsupported.¹

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Moreover, Petitioner’s assertions that the ALJ (and the Board) have any authority to compel the I.G. to engage in settlement negotiations or to reinstate (or consider reinstating) Petitioner also lack any legal basis.  Board decision DAB No. 1784 became final and binding in 2001 in light of Petitioner’s decision not to appeal that decision to Federal Court.  See 42 C.F.R. § 1005.21(j), (k).  To the extent Petitioner seeks reinstatement, as the ALJ noted, the regulations have established a separate process by which an individual may seek reinstatement.  See 42 C.F.R. Part 1001, Subpart F.  Neither an ALJ nor the Board plays any role in that process (including the determination of whether a petitioner has fully satisfied debts owed) and thus may not require the I.G. to reinstate an individual or compel the I.G. to engage in settlement negotiations for the purpose of reinstatement.²  See 42 C.F.R. § 1001.3002.  Only the I.G. can authorize reinstatement, and if reinstatement is denied, the denial is not subject to administrative or judicial review.  See 42 C.F.R. § 1001.3004(c).

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Thus, because Petitioner has not identified any error in the ALJ’s dismissal of the request for hearing and only seeks to continue to challenge the IG’s exclusion as well as request relief that this administrative body is unable to provide, we decline review.³

Endnotes

¹ Petitioner, more than two decades ago, unsuccessfully appealed the I.G.’s 1999 exclusion to the ALJ and the Board, and did not further appeal the matter.  See Michael D. Lawton, M.D., DAB No. CR771 (2001), aff’d, DAB No. 1784 (2001).  Before the Board, Petitioner renews allegations that a document upon which the exclusion is based was fraudulent, which allegation the ALJ and the Board rejected in the 2001 proceedings.  Petitioner also asserts, evidently for the first time in these renewed proceedings, that he never had any HEAL loans and that the default judgment entered against him by the Superior Court of California, County of Orange on June 15, 1992, in case number 68 17 06 was entered in error and that the same court on that same day actually dismissed the proceedings against him because “the lawsuit was based on a fictitious debt.”  Motion for Reconsideration at 3.  In support of this assertion, Petitioner has submitted a copy of the June 15, 1992, default judgment as well as the purported certified results of a records search from the Superior Court of California, County of Orange reflecting the disposition of “Student Loan Marketing Association vs. Michael D. Lawton,” case number 68 17 06 as “dismissed 6/15/1992.”  The document further indicates that the records of the proceedings were destroyed on December 30, 2004.  To the extent Petitioner is requesting that the Board reconsider its decision in DAB No. 1784 based on the submission of allegedly new evidence, we deny Petitioner’s request.  Petitioner pursued his appeals of the I.G.’s 1999 exclusion and argued that his HEAL loan balance had been discharged in bankruptcy.  During that appeal, the I.G. presented evidence of the 1992 default judgment entered against him as support of the ultimate material fact that Petitioner defaulted on his HEAL loans.  Petitioner, therefore, could have challenged that evidence in the 2001 proceedings, but did not.  Petitioner has not provided any credible reason as to why he would not have done so or why evidence of the alleged dismissal was not available in 2001 (or at any point before the records were allegedly destroyed in 2004).  Moreover, Petitioner’s submission of evidence in 2022 that could have been submitted during the 2001 proceedings is not a prompt allegation of “clear error of fact or law” that could possibly serve as a basis for the Board to reopen DAB No. 1784.  See Rosa Velia Serrano, Ruling No. 2019-2 at 5 (2019).

² Mediation is a voluntary process; thus, both parties must agree to participate.  See https://www.hhs.gov/about/agencies/dab/adr-services/mediation/index.html.  Upon learning of Petitioner’s request to mediate, the Board staff attorney assigned to this appeal contacted both parties to inquire whether the I.G. would agree to mediation.  The I.G.’s attorney declined to participate in mediation with Petitioner.  In his subsequent submission to the Board entitled “Motion for Offer of Full Settlement and ADR,” Petitioner indicated that the “DAB replaced” the I.G.’s attorney with the staff attorney for the Board and thus the I.G.’s attorney had no authority to “speak for the DAB.”  To clarify for Petitioner, it is the I.G. that must consent to mediate.  Moreover, the Board does not “replace” any party’s chosen representative with any staff attorney from the Departmental Appeals Board and did not do so in this matter.

³ We also deny Petitioner’s Motion for Offer of Full Settlement and ADR, overrule the I.G.’s objection to Petitioner’s Reply, and deny Petitioner’s Request to file a Motion for an Evidentiary Proceeding.