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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
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Services, Office of the General Counsel, with whom Stuart M.
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Gerson, Assistant Attorney General, A. John Pappalardo, United
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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
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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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Document Info
Docket Number： 92-2079
Filed Date： 3/2/1993
Precedential Status： Precedential
Modified Date： 9/21/2015