Cohen v. Empire Blue Cross and Blue Shield

• Decision Date: 15 April 1998
• Docket Number: No. 97-7144,97-7144
• Parties: , Medicare & Medicaid Guide P 46,208 Toby COHEN, Plaintiff-Appellant, v. EMPIRE BLUE CROSS AND BLUE SHIELD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 116

142 F.3d 116

40 Fed.R.Serv.3d 658, Medicare & Medicaid Guide P 46,208

Toby COHEN, Plaintiff-Appellant, v. EMPIRE BLUE CROSS AND BLUE SHIELD, Defendant-Appellee.

No. 97-7144.

United States Court of Appeals Second Circuit.

Argued March 25, 1998.

Decided April 15, 1998.

Toby Cohen, pro se, New York City for Plaintiff-Appellant.

Richard E. Juzumas, New York City, for Defendant-Appellee.

Before FEINBERG, CALABRESI, and BRIGHT, ^* Circuit Judges.

PER CURIAM:

Toby Cohen, a pro se litigant, appeals from an order of the United States District Court for the Southern District of New York (Allen G. Schwartz, Judge ) denying her motion for an extension of time to file a notice of appeal. Because we conclude that the district court either did not have jurisdiction to consider the motion or the motion was unnecessary and should have been dismissed without consideration of the merits, we vacate and remand with instructions to dismiss the motion.

1.

In 1993, Cohen filed suit in New York state court against Empire Blue Cross and Blue Shield ("Empire") because Empire had declined to approve several Medicare claims she had submitted to it. Empire removed the action to federal court. Its removal petition stated, among other things, that Empire, in administering Medicare claims, acted as an agent of the United States Government pursuant to a contract between Empire and the Secretary of Health and Human Services ("HHS").

HHS wrote to the district judge handling the case at that time (Sonia Sotomayor, Judge ), on February 25, 1994, to express its interest in intervening in the suit and to request additional time for Empire to answer the complaint. At approximately the same time, the court held a conference in the case, at which HHS stated that Cohen's Medicare claims were being reprocessed, thus solving her problems with the agency. Cohen explained, however, that her complaint was with Empire, not HHS, and that Empire's actions had both led to her being pursued by collection agencies, and disrupted her relationships with her physicians. She therefore asked for compensatory and punitive damages. HHS stated that it was entitled to sovereign immunity with respect to any such suit. And Empire repeated its earlier assertion that, when it took the complained-of actions, it was serving as an agent of the government.

At an April 1995 conference, Empire conceded that Cohen had always maintained that her claims were against it alone, and not the government. The court, in response, raised the issue of whether Empire had improperly removed the action to federal court. Subsequently, at a January 1996 conference, Cohen informed the court that a lawsuit--and not the first--had been filed against her by a hospital, this time because Empire had allegedly processed a Medicaid claim improperly.

Empire moved for summary judgment in May 1996. Empire argued, among other things, that, as an agent of the government, it was immune from suit, and that, insofar as the suit was against Empire as a private entity (as opposed to it as an agent of the government), the court lacked subject matter jurisdiction over the case. In the meantime, a declaration from the United States Attorney's Office identified HHS as an amicus curiae (rather than as an intervenor).

At oral argument, on August 22, 1996, the district court (Allen G. Schwartz, Judge ) granted Empire's summary judgment motion. (An Assistant United States Attorney entered an appearance at this argument on behalf of HHS.) The court concluded that the removal to federal court had been proper (on the basis that 42 U.S.C. § 405(g) provided federal jurisdiction over Cohen's claims). It also held (1) that the action was barred by sovereign immunity (because Empire was acting as an agent of the government); (2) that, if Empire was not protected by sovereign immunity, it was nonetheless entitled to official immunity; and (3) that Cohen had not exhausted her administrative remedies. Judgment was entered on October 1, 1996.

Cohen filed a notice of appeal on November 27, 1996. Then, on December 17, she submitted to the district court a motion for an extension of time to file her notice of appeal. In this motion, she claimed that she had believed she was entitled, under Federal Rule of Appellate Procedure 4(a)(1), to sixty rather than thirty days in which to file the notice, because she thought that the United States was a party to the action. The district court denied the motion on December 27, stating that the United States was never a party to the suit and that Cohen had failed to show excusable neglect or good cause for her failure to comply with the normal thirty-day filing requirement of Rule 4(a)(1). On January 21, 1997, Cohen filed a timely appeal from the district court's denial of her December 17 extension motion. In this appeal (which is the one now before us), Cohen claims, once again, that she had believed the government was a party to the action, thus entitling her to sixty days rather than thirty in which to file her initial appeal.

In the meantime, Cohen's original appeal of the October 1 summary judgment was still pending. On April 30, 1997, this court dismissed this first appeal sua sponte, on the ground that Cohen's November 27 notice of appeal was untimely, since it was filed more than 30 days after the district court's final order.

2.

If a party files a notice of appeal beyond the time provided in Federal Rule of Appellate Procedure 4(a), the court of appeals lacks subject matter jurisdiction to hear the appeal. See Endicott Johnson Corp. v. Liberty Mut. Ins. Co., 116 F.3d 53, 56 (2d Cir.1997). The requirement of a timely filing of a notice of appeal is " 'mandatory and jurisdictional.' " Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (per curiam) (citation omitted).

Under Federal Rule of Appellate Procedure 4(a)(5), however, the district court, "upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a)." Fed. R.App. P. 4(a)(5). Thus, in cases under Rule 4(a)(1) where the time for filing a notice of appeal is 30 days, "the district court may, on a showing of good cause or excusable neglect, extend the 30-day period for up to 30 days from the original deadline or until 10 days after the date of entry of the order granting the motion, whichever is later, but may not extend it further." Endicott Johnson, 116 F.3d at 56; see also Martinez v. Hoke, 38 F.3d 655, 656 (2d Cir.1994) (per curiam). The district court, however, lacks jurisdiction to grant any extension motion that is not filed within Rule 4(a)(5)'s 30-day "grace period." Endicott Johnson, 116 F.3d at 56; Martinez, 38 F.3d at 656; Melton v. Frank, 891 F.2d 1054, 1056 (2d Cir.1989).

...