Cohen v. Empire Blue Cross and Blue Shield
| Decision Date | 28 April 1999 |
| Docket Number | Docket No. 97-7005 |
| Citation | 176 F.3d 35 |
| Parties | Toby COHEN, Plaintiff-Appellant, v. EMPIRE BLUE CROSS AND BLUE SHIELD, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Lori B. Leskin, New York, New York (John J.P. Howley, Kaye, Scholer, Fierman, Hays & Handler, New York, New York, on the brief), for Plaintiff-Appellant.
Jeffrey D. Chansler, New York, New York (Richard Juzumas, New York, New York, on the brief), for Defendant-Appellee.
Lorraine S. Novinski, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney
for the Southern District of New York, Gideon A. Schor, Assistant United States Attorney, New York, New York, on the brief), for Amicus Curiae United States in support of Appellee.
Before: KEARSE, WALKER, and STRAUB, Circuit Judges.
Plaintiff Toby Cohen appeals from a judgment entered in the United States District Court for the Southern District of New York, Allen G. Schwartz, Judge, dismissing her complaint alleging that defendant Empire Blue Cross and Blue Shield ("Empire") failed, in its capacity as a fiscal intermediary for Medicare, to pay Cohen's Medicare claims, and that Empire failed to process claims properly in its capacity as her private insurer. The district court granted Empire's motion to dismiss the complaint on grounds of immunity, lack of subject matter jurisdiction, and failure to state a claim on which relief can be granted. On appeal, Cohen contends that the district court erred in dismissing with prejudice her claims against Empire as a private insurer. Empire contends, inter alia, that the appeal must be dismissed for lack of appellate jurisdiction because the notice of appeal filed by Cohen, proceeding pro se in the district court, was filed some 57 days after the entry of judgment. Cohen argues that her notice of appeal was timely because the United States is a party to this action. The United States, as amicus curiae, urges dismissal on the ground that it is not a party. For the reasons that follow, we conclude that the United States is not and was not a party to the action, and that the appeal must be dismissed.
Cohen commenced the present action pro se in New York City Civil Court in December 1993, using a form provided by that court to describe her claim. Her claim, which named Empire as the only defendant, alleged
[f]ailure to provide proper services, failure to pay for insurance claim, breach of contract. Blue Cross refuses to reimburse any Medicare claims because it is under the erroneous impression that I have another policy....
Empire promptly removed the case to the district court, invoking 28 U.S.C. § 1441(b) on the ground that the complaint related to the federal Medicare program, that Empire processed claims under that program as an agent of the United States pursuant to a contract entered into with the Department of Health and Human Services ("HHS") in accordance with the Medicare statute, and that the matter thus arose under federal law.
Cohen's original complaint asserted that Empire, as fiscal intermediary for Medicare, was refusing to process or pay her Medicare claims. The provenance of her assertions was that prior to April 1993, Empire also had provided private health insurance coverage to Cohen; that because the premium due in April 1993 was not paid, Empire canceled the policy; and that the cancellation, retroactive to April 1993, apparently took place in August 1993. In the meantime, from April 1993 until December 1993, Empire as Medicare intermediary denied Cohen's Medicare claims on the basis that she still had primary private insurance coverage. (See Letter from plaintiff to district court dated January 22, 1996, at 5 ("The private branch of Blue Cross knew that I had Medicare.... It also knew that Medicare would not pay any of my claims until it was notified that my private policy was canceled, and that Medicare was now my primary insurer, and hence the one responsible for 80 percent of my medical bills. I assumed--given such knowledge--that the private branch of Blue Cross would have informed the Medicare branch that it had canceled my private plan. But apparently it felt under no such obligation.... I and the Soon after removal of the case to federal court, Cohen's Medicare claims were resolved. In January 1994, Assistant United States Attorney ("AUSA") Lorraine S. Novinski, representing Donna E. Shalala, Secretary of HHS ("the Secretary" or "the government"), wrote the district judge to whom the case was first assigned, requesting that Empire be given an extension of its time to answer or move with respect to the complaint, in anticipation that those claims might be resolved:
physicians and hospitals treating me then spent the next eight months writing to the Medicare branch of Blue Cross telling it that the private branch of Blue Cross had canceled the policy....").)
I have been advised that Blue Cross is reviewing its actions on plaintiff's Medicare claims, but I do not yet know the results of that review. Of course, if the review results in a decision to pay the claims, no litigation would be necessary.
(Letter from AUSA to district court dated January 25, 1994, at 1.) The AUSA also indicated that since the Secretary is responsible for Medicare and "is the real party in interest in any litigation involving administration of the program," if continued litigation of the Medicare claims were necessary the AUSA would "move to intervene on behalf of the Secretary." (Id.)
In a February 9, 1994 status conference with the court, attended by the parties and the government, it transpired that Cohen's Medicare claims would be paid, but that those payments would not end the litigation:
THE COURT:.... As I understand the plaintiff's complaint to me, she incurred some medical expenses, she understands that her Blue Cross policy was not in effect at the time these expenses were incurred, and that she then sought Medica[re] coverage, that Medicare keeps telling her, your primary carrier has to pay its part first, so she is going around in a circle, where no one is attempting to identify where that circle stops.
Can you two sort this out for her in an expeditious manner?....
(Hearing Transcript, February 9, 1994 ("Feb. 1994 Tr."), at 2-3.) In response to Cohen's request for damages, the AUSA stated that
[u]nder the statute she would have no right to any sort of damages under Medicare. Medicare is a federally established program, the Secretary has a sovereign immunity defense. There is no statutory grant of damages for any problems here.
Now, Empire is a private corporation, something that I can't speak to, so I don't know what sort of remedy she could have against them.
(Id. 4-5.) Cohen responded, in part, "My problem is not with the government but rather with the way in which Empire Blue Cross goes about processing claims." (Id. 5.)
At the next court conference, which Cohen did not attend, the AUSA informed the court that the Medicare claims had been resolved and that the government therefore would not move to intervene:
MS. NOVINSKI:.... We had intended to move to dismiss the action, move to intervene the secretary as the defendant and then dismiss the action. That was all on the understanding that what she was suing about was the failure to pay properly on her Medicare claims.
I believe those claims have all been resolved. In fact, there is no issue regarding the amount of money she is owed under Medicare.
At the last conference, as I recall, she conceded that the Medicare problem had been resolved but she was still unhappy with the fact that Blue Cross had in her view mishandled her Medicare claims and in fact had a history of prior difficulties with Blue Cross. And at that point it looked as if she was interested in suing Blue Cross for their actions that they took as opposed to suing them for more money on Medicare claims.
....
MS. NOVINSKI: The original problem was with her [Medicare] enrollment, which has been corrected.
(Hearing Transcript, September 8, 1994, at 3-4.) At the following conference, Cohen confirmed that her Medicare claims had in fact been resolved. (Hearing Transcript, October 28, 1994, at 6 ().)
Cohen wished to proceed, however, on her request for damages. Efforts at mediation of that claim failed, and the district court eventually permitted Empire to move against the complaint. Empire moved to dismiss, arguing that it was entitled to judgment as a matter of law on various...
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