Nwabue v. SUNY at Buffalo/University Medical Services ( 2013 )

12-3966-cv
Nwabue v. SUNY at Buffalo/University Medical Services
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 21st day of October, two thousand thirteen.
PRESENT: GERARD E. LYNCH,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_________________________________________
ROGERS A. NWABUE,
Plaintiff - Appellant,
v. No. 12-3966-cv
SUNY at BUFFALO/UNIVERSITY MEDICAL SERVICES,
Defendant-Appellee,
JOHN YEH, M.D., ROSEANNE BERGER, M.D.,
JANE HARSZLAK, Ph.D.,
Defendants.*
_________________________________________
*
The Clerk of Court is directed to correct, on this Court’s docket, the spelling of
Roseanne Berger’s name, as reflected in this Order.
FOR APPELLANT: ROGERS A. NWABUE, pro se, Ann Arbor, Michigan.
FOR APPELLEE: LAURA ETLINGER, Assistant Solicitor General (Barbara D.
Underwood, Solicitor General and Andrea Oser, Deputy Solicitor
General, on the brief) for Eric T. Schneiderman, Attorney General
of the State of New York, Albany, New York.
Appeal from a judgment of the United States District Court for the Western District of
New York (William M. Skretny, Chief Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that appellant’s appeal is DISMISSED, IN PART, FOR LACK OF
JURISDICTION, and, to the extent that this Court has jurisdiction, the judgment of the district
court is AFFIRMED.
Plaintiff-Appellant Rogers Nwabue, proceeding pro se, appeals from the district court’s
dismissal of his age discrimination complaint, the denial of a motion to vacate that dismissal, and
the denial of his motion to certify issues to the United States Attorney General. We assume the
parties’ familiarity with the underlying facts, procedural history of the case, and issues on
appeal.
After the district court dismissed Nwabue’s complaint for lack of subject matter
jurisdiction, Nwabue filed an initial motion to vacate the judgment. The district court granted
that motion in part and denied it part; it allowed Nwabue leave to amend his complaint to include
claims against University Medical Resident Services, P.C., which he contended was the actual
party in interest. But Nwabue never filed an amended complaint, and 69 days after the deadline
to amend the complaint had passed, the district court entered a superseding judgment dismissing
and closing his case on March 26, 2012. Nwabue never appealed that judgment.
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On May 2, 2012, Nwabue filed a motion to vacate the judgment, in which he largely
reiterated arguments he raised in opposition to the defendant’s original motion to dismiss. He
also filed a motion seeking to certify to the United States Attorney General several questions he
contends were of constitutional dimension. On September 4, 2012, the district court denied
Nwabue’s motions, and, on October 1, 2012, Nwabue filed the present appeal.
As a preliminary matter, we have a “special obligation to satisfy [ourselves] . . . of [our]
own jurisdiction.” See Arnold v. Lucks, 392 F.3d 512, 517 (2d Cir. 2004); see also Henrietta D.
v. Giuliani, 246 F.3d 176, 179 (2d Cir. 2001) (noting obligation to raise issue of jurisdiction sua
sponte where it is questionable). In a civil case where the United States is not a party, Federal
Rule of Appellate Procedure 4(a)(1)(a) and 28 U.S.C. § 2107(a) require an appellant to file a
notice of appeal within thirty days after the entry of a judgment. In Bowles v. Russell, the United
States Supreme Court made “clear that the timely filing of a notice of appeal in a civil case is a
jurisdictional requirement.” 551 U.S. 205, 214 (2007). However, this thirty-day time period to
file a notice of appeal may be tolled by, inter alia, a timely filed motion under Rules 59(e) or
60(b) of the Federal Rules of Civil Procedure. See Fed. R. App. P. 4(a)(4)(A)(iv), (vi); see also
Fed. R. Civ. P. 59(e) (requiring motion to be filed no later than 28 days after the entry of
judgment); Fed. R. App. P. 4(a)(4)(A)(vi) (noting that a Rule 60(b) motion tolls time to appeal
only if filed no later than 28 days after a judgment is entered). Where a timely post-judgment
motion enumerated in Rule 4(a)(4) is made, the time to appeal does not begin to run until the
entry of the order disposing of such a motion. See Rule 4(a)(4)(A).
Nwabue’s motion to vacate the judgment was filed on May 2, 2012. This was more than
twenty-eight days after the March 26, 2012 entry of the superseding judgment dismissing his
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complaint, and thus, it could not toll the time period for filing an appeal from that judgment.
Indeed, Nwabue did not file a notice of appeal until October 1, 2012, long past the thirty-day
deadline. His notice of appeal was, therefore, untimely as to any order filed before September 1,
2012, including the district court’s original dismissal of Nwabue’s complaint, its order vacating
in part the first judgment, and its final judgment issued in the spring, and we therefore lack
jurisdiction to review those orders.
Nwabue’s notice of appeal was only timely as to the district court’s September 2012
order denying his motion to vacate the March 2012 judgment and denying his motion to certify
questions to the United States Attorney General. The scope of that appeal is limited, however.
As we have often explained, a litigant may not exploit his timely appeal from the denial of a
motion to vacate a judgment to revive arguments he waived by failing to file a timely appeal
from the judgment on the merits. See, e.g., Lora v. O’Heaney, 602 F.3d 106, 110-11 (2d Cir.
2010). It is well settled that “[a]n appeal from an order denying a Rule 60(b) motion [filed more
than twenty-eight days after judgment is entered] brings up for review only the denial of the
motion and not the merits of the underlying judgment for errors that could have been asserted on
direct appeal.” Branum v. Clark, 927 F.2d 698, 704 (2d Cir. 1991) (citing Browder v. Dir., Dep't
of Corr., 434 U.S. 257, 263 n.7 (1978)). Insofar as Nwabue’s appeal challenges the underlying
merits of his case, we lack jurisdiction to consider those arguments. It follows that we also lack
jurisdiction over arguments that Nwabue could have brought in a direct appeal, including his
arguments that the district court committed “fraud on the court” by failing to accord him a liberal
construction of his filings, and that the district court erred in vacating, in part, the original
judgment while a prior appeal was pending before this Court.
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We have jurisdiction to review only a single issue raised by Nwabue: whether the district
court erred in failing to certify to the United States Attorney General the question of whether it
was unconstitutional for the State Attorney General to appear as counsel to UMRS, a private
entity. Where 28 U.S.C. § 2403 applies, certification is mandatory, even where the claim is
obviously frivolous or may be disposed of on other grounds. See Wallach v. Lieberman, 366
F.2d 254, 257 (2d Cir. 1966). Here, however, section 2403(a) is inapplicable because Nwabue
does not call into question the constitutionality of any federal statute. Accordingly, we find that
the district court did not err in refusing to certify this issue to the Attorney General. In addition,
Nwabue’s argument lacks merit because the State Attorney General appeared on behalf of
SUNY alone, and never appeared on behalf of UMRS. Finally, the certification requirement
exists for the benefit of the United States, to enable the Attorney General to defend the
constitutionality of federal laws. Even if certification were required, Nwabue identifies no way
in which he was prejudiced by the failure to certify.
For the foregoing reasons, the appeal is dismissed, except insofar as noted above, and the
judgment of the district court is otherwise hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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