                                                                           FILED
                              NOT FOR PUBLICATION                           JUL 27 2011

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



PAUL MESSER; DOROTHY                               No. 10-56353
CALABRESE, M.D.,
                                                   D.C. No. 8:08-cv-00633-CJC-
                Plaintiffs - Appellants,           RNB

  v.
                                                   MEMORANDUM **
U.S. DEPARTMENT OF HEALTH &
HUMAN SERVICES; et al.,*

                Defendants - Appellees.



                     Appeal from the United States District Court
                        for the Central District of California
                     Cormac J. Carney, District Judge, Presiding

                               Submitted July 12, 2011 ***

Before:         SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

       Dorothy Calabrese, M.D., and her patient Paul Messer, appeal pro se from

          *
             Kathleen Sebelius is substituted for her predecessor, Michael O.
Leavitt, as Secretary of the Department of Health and Human Services under Fed.
R. App. P. 43(c)(2).

          **
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the district court’s order dismissing their action alleging that Managing

Administrative Law Judge Koldeway rendered a decision when she was not the

judge who held the administrative hearing, in violation of plaintiffs’ rights under

the U.S. Constitution and federal law. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo, Uhm v. Humana, Inc., 620 F.3d 1134, 1139 (9th Cir.

2010), and we affirm.

      The district court properly dismissed the action because plaintiffs’

allegations concerning Judge Koldeway’s decision failed to state a claim. See 5

U.S.C. § 554(d) (“The employee who presides at the reception of evidence . . .

shall make the recommended decision or initial decision . . . unless he becomes

unavailable to the agency.”). Contrary to plaintiffs’ contention, the outcome did

not turn on credibility determinations.

      Plaintiffs’ remaining contentions are unpersuasive.

      AFFIRMED.




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