Ingrid Gordon-Patterson, DAB No. 3171 (2025)

DETERMINATION TO DECLINE REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

After reviewing the record to evaluate the issues presented by Petitioner in her appeal of the administrative law judge (ALJ) Dismissal in Ingrid Gordon-Patterson, CRD Docket No. C-23-705, Ruling No. 2025-4 (Nov. 12, 2024), we have determined that we need not render a separate decision.  The ALJ dismissed Petitioner’s hearing request under 42 C.F.R. § 1005.2(e)(1) because it was not timely filed and Petitioner failed to make a “reasonable showing” to rebut the presumption of receipt of the June 30, 2017 Inspector General (IG) exclusion notice five days after the date of the notice.  Dismissal at 2-3; Cf. Kenneth Schrager, DAB No. 2366, at 4-5 (2011) (holding petitioner’s mere statement denying receipt of exclusion notice, without “sufficient explanation and corroborating evidence,” is insufficient to rebut presumption of receipt under 42 C.F.R. § 1005.2(c)).

On appeal, Petitioner raises no exceptions that were not already sufficiently addressed by the ALJ or prior Board decisions.  Petitioner states that “[a]s an inmate, I did not have guaranteed access to mail or legal correspondence” and “was not informed of the federal exclusion at the time of its issuance and thus was unable to appeal within the required timeframe.”  Notice of Appeal (NA) at 3.  These are the same arguments Petitioner presented before the ALJ, and, as the ALJ found, “Petitioner provides no other context or explanation, or evidence that supports her assertion” nor has Petitioner even included “a sworn declaration attesting to the statements in her filing, despite being specifically instructed to do so.”  Dismissal at 2-3.  Petitioner provides numerous case law citations that purportedly support her assertion that she did not receive “due process” or “actual notice,” but Petitioner presents no evidence that rebuts the presumption of receipt, or the evidence submitted by the IG.  NA at 3-5, 7-8.  Likewise, Petitioner asserts that the ALJ “failed to adequately evaluate the evidence and mitigating factors, leading to an erroneous decision unsupported by law” and the Dismissal “lacked a reasoned explanation and failed to assess the facts adequately, making the decision arbitrary,” but provides only a string of case law citations with no specific argument or explanation that refutes the ALJ’s findings and decision based on the record evidence.  NA at 6-8.  Thus, Petitioner has not presented any argument or evidence supporting her assertion that the ALJ Dismissal was legally erroneous or unsupported by substantial evidence on the 

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whole record, 42 C.F.R. § 1005.21(h), nor any argument or evidence that rebuts the “well-recognized principle that it is both reasonable and legally sound for parties in litigation to consider certain legal documents sent through a regular mail system and in the course of litigation to have been received by a date certain.”  Dismissal at 3 (citing Schrager at 4).

Petitioner also asserts that the “exclusion imposes an excessive burden, preventing [her] from contributing to the healthcare field and serving vulnerable populations”; that she has demonstrated a “commitment to rehabilitation and civic engagement,” as her “efforts post-incarceration, including professional training and community service, demonstrate [her] readiness to reenter the workforce responsibly and effectively”; and that the doctrine of “equitable tolling” should be applied.  RR at 3-5.  First, Petitioner failed to specifically raise an argument that “equitable tolling” should apply before the ALJ; thus, this issue is not properly before the Board.  See  42 C.F.R. §  1005.21(e) (“The [Board] will not consider . . . any issue in the briefs that could have been raised before the ALJ but was not.”); see also Sonny Austin Ramdeo, DAB No. 3152, at 1 (2024) (declining review for Petitioner’s failure to raise equitable tolling argument before the ALJ “for that reason alone”).  Second, the “regulations do not permit an ALJ or the Board to excuse a petitioner’s failure to meet the regulatory filing requirements based on equitable grounds.”  Ramdeo at 2 (citing  Schrager  at 6);  see also  Boris Sachakov, M.D., DAB No. 2707, at 4 (2016) (holding that 42 C.F.R. §  1005.2(e)(1) mandates dismissal of an untimely hearing request); Gary Grossman, DAB No. 2267, at 5 (2009) (“[T]he ALJ was required to dismiss Petitioner’s hearing request if it was not timely filed.”). 

Pursuant to 42 C.F.R. § 1005.21(g), we therefore decline review of and summarily affirm the ALJ’s Dismissal.