Griffith v. Sullivan, M.D. ( 1993 )


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  • USCA1 Opinion









    March 2, 1993 UNITED STATES COURT OF APPEALS
    For The First Circuit
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    No. 92-2079

    ROBERT GRIFFITH, ET AL.,

    Plaintiffs, Appellants,

    v.

    LOUIS M. SULLIVAN, M.D., SECRETARY
    OF HEALTH AND HUMAN SERVICES,

    Defendant, Appellee.

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    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. William G. Young, U.S. District Judge]
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    ____________________

    Before

    Torruella, Circuit Judge,
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    Campbell, Senior Circuit Judge,
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    and Stahl, Circuit Judge.
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    Sarah F. Anderson, Greater Boston Legal Services, with whom
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    Diane F. Paulson, Massachusetts Medicare Advocacy Project,
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    Greater Boston Elderly Legal Services, and Alfred J. Chiplin,
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    Jr., National Senior Citizens Law Center, were on brief for
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    appellants.
    Gerard Keating, Attorney, Department of Health and Human
    _______________
    Services, Office of the General Counsel, with whom Stuart M.
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    Gerson, Assistant Attorney General, A. John Pappalardo, United
    ______ ___________________
    States Attorney, Susan K. Zagame, Acting General Counsel, Darrel
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    J. Grinstead, Associate General Counsel, and Henry R. Goldberg,
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    Deputy Associate General Counsel for Litigation, U.S. Department
    of Health and Human Services, were on brief for appellee.



















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    March 2, 1993
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    TORRUELLA, Circuit Judge. Appellants seek relief from
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    the district court's dismissal of their challenge to the Medicaid

    Part B reimbursement process. We do not reach the merits of

    appellant's claims, because we lack appellate jurisdiction.

    FACTS
    FACTS
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    As the facts relevant to the merits of this case are

    set forth fully in the district court opinion,1 we do not repeat

    them here. We will recount only those facts pertinent to the

    issue of appellate jurisdiction.

    Robert Griffith commenced this case with Katherine

    Nadworny "for themselves and all others similarly situated."

    Plaintiffs claimed that they were denied coverage for durable

    medical equipment under Medicare Part B in violation of statutory

    and constitutional law.2 The complaint indicated plaintiffs'

    intent to seek class certification.

    Before the district court certified the class, the

    Department of Health and Human Services ("HHS") sent checks to

    Griffith and Nadworny for the amount they would have received had

    their Medicare Part B claims been granted.

    The district court later certified a class,

    substituting June Burns and Amelio Bianchi as class


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    1 Reported at 789 F. Supp. 478 (D. Mass. 1992).

    2 Plaintiffs claimed violations of the Medicare Act, Pub. L. No.
    89-97, 79 Stat 286 (codified as amended in scattered sections of
    42 U.S.C., principally 1935 et seq.), the Administrative
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    Procedures Act, 5 U.S.C. 551 et seq., 701 et seq., 3105 &
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    3344, and the Due Process Clause of the United States
    Constitution.

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    representatives. Robert Griffith and Katherine Nadworny

    continued to sue individually. The district court found no merit

    in the substance of plaintiffs' claims, and this appeal followed.

    The notice of appeal in this case was filed with the

    style of "Robert Griffith, et al., plaintiffs." It stated in

    relevant part "Robert Griffith, et al., plaintiffs named above,

    hereby appeal . . . ."

    LEGAL ANALYSIS
    LEGAL ANALYSIS
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    Fed. R. App. P. 3(c) plainly requires that "[t]he

    notice of appeal shall specify the party or parties taking the

    appeal." The rule is a jurisdictional threshold; its

    requirements must be met before we can exercise jurisdiction over

    an appeal. Torres v. Oakland Scavenger Co., 487 U.S. 312, 314-15
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    (1988). Thus, the "failure to name a party in a notice of appeal

    . . . constitutes a failure of that party to appeal." Id. at
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    314. The rule ensures that both the appellee and the court

    receive notice of the identity of the appellants, and that the

    appellee and the court are advised as to exactly who is bound by

    an adverse judgment and who is not. Id. at 318.
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    Appellant argues that the "Robert Griffith, et al."

    designation sufficed to properly name the certified class as a

    party to the appeal. We disagree. "Et al." does not provide the

    necessary specificity for us, or appellee, to know who besides

    Robert Griffith is a party. As the Supreme Court stated, "use of

    the phrase 'et al.,' which literally means 'and others,' utterly

    fails to provide such notice to either intended recipient." Id.
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    The fact that a class has been certified does not make "et al."

    suddenly effective. Hammon v. Kelly, 980 F.2d 785, 786 (D.C.
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    Cir. 1992); Ooley v. Schwitzer Div., Household Mfg., Inc. 961
    _____ ______________________________________

    F.2d 1293, 1305-06 (7th Cir.), cert. denied, 61 U.S.L.W. 3261
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    (1992).

    The decisions in Rendon v. A.T. & T. Technologies, 883
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    F.2d 388, 398 n.8 (5th Cir. 1989) and Al-Jundi v. Estate of
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    Rockefeller, 885 F.2d 1060, 1061 n.1 (2d Cir. 1989), cert.
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    denied, Mancusi v. Al-Jundi, 112 S. Ct. 182 (1991), are not
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    contrary to our result. In those cases, the courts held that

    when the class representative was named in the notice of appeal,

    with the designation "et al." following, the entire class had

    appealed properly. In the present case, however, even the

    minimal requirement imposed by the Fifth and Second Circuits was

    not met: the class representative was not named. As neither the

    class nor any other potential appellant was named as a proper

    party to this appeal, we have no jurisdiction over their claims.

    For the purpose of informing future class action

    appellants exactly what this court expects the notice of appeal

    to contain, we adopt the requirement imposed by the Seventh

    Circuit and the D.C. Circuit. As the D.C. Circuit framed this

    requirement, "the notice of appeal should state the name of a

    proper class representative along with some general invocation of

    his representative capacity, such as 'John Smith, individually

    and on behalf of all other persons similarly situated' or 'John

    Smith, as class representative.'" Hammon, 980 F.2d at 786.
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    The only remaining plaintiff is Robert Griffith. We

    must dismiss his appeal as moot because, as the district court

    noted, he has already received everything that he claims he was

    entitled to recover. Wilson v. Secretary of Health & Human
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    Services, 671 F.2d 673, 679 (1st Cir. 1982).
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    Appeal dismissed.
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