Amos v. Palmetto Government Benefit Administrator , 122 F. App'x 105 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 28, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
Summary Calendar
No. 04-30547
MATTIE MAE AMOS
Plaintiff - Appellant
v.
PALMETTO GOVERNMENT BENEFIT ADMINISTRATOR; KATHY GRIFFIN,
Palmetto Government Benefit Administrator; DEBBIE DIXON,
Palmetto Government Benefit Administrator Supervisor; BONNIE
MICHALSKI, Palmetto Government Benefit Administrator
Technician; KEN GODBOLD, Palmetto Government Benefit
Administrator Supervisor; ROCKY MOUNTAIN HEALTH SYSTEMS;
SHAWNDRA WHITE; CONRAD & ASSOCIATES; BLUE CROSS & BLUE
SHIELD OF NEW MEXICO; BLUE CROSS AND BLUE SHIELD OF SOUTH
CAROLINA; BLUE CROSS & BLUE SHIELD ADMINISTRATOR;
TRI-SPAN, Incorporated
Defendants - Appellees
Appeal from the United States District Court for the
Western District of Louisiana, Lafayette
No. 03-CV-1814
Before KING, Chief Judge, and JONES and DENNIS, Circuit Judges.
PER CURIAM:*
This case arises out of Mattie Amos’s unsuccessful pro se
attempts to sue certain Medicare intermediaries and individuals
associated with them. To date, Amos, the plaintiff-appellant,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
has filed three such suits, all of which have been dismissed.
She now appeals the dismissal of her third lawsuit. For the
following reasons, we AFFIRM the judgment of the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Amos is a Louisiana resident who owns a home health care
agency, P.D.C. Health Care (“PDC”). PDC offers home health
services to patients receiving Medicare benefits. During the
relevant time periods, the United States Department of Health and
Human Services (“HHS”) contracted with several private insurance
companies to act as fiscal intermediaries between Medicare and
PDC, including Blue Cross & Blue Shield (“BCBS”) of New Mexico,
Palmetto Government Benefit Administrators (“PGBA”), and BCBS of
South Carolina. These intermediaries were, inter alia, in charge
of processing PDC’s Medicare reimbursement claims.
On April 30, 2001, Amos, proceeding pro se, sued BCBS of New
Mexico and five individual defendants in the Western District of
Louisiana for failing to approve Medicare claims submitted by
PDC. According to Amos’s lawsuit, these defendants falsified
records in an effort to steal millions of dollars from her
business. The individual defendants responded by filing a motion
to dismiss, and the claims against them were dismissed at the
outset of the litigation pursuant to FED. R. CIV. P. 12(b)(4) &
(5). BCBS of New Mexico then moved to dismiss the complaint
because of Amos’s failure to exhaust her administrative remedies.
2
On June 7, 2002, before the district court ruled on BCBS of New
Mexico’s motion to dismiss, Amos re-filed her action against the
individual defendants in another division of the Western District
of Louisiana. On August 7, 2002, this new case was consolidated
with the case still pending against BCBS of New Mexico. On
November 6, 2002, a magistrate judge issued a report and
recommendation suggesting that the district court dismiss all of
Amos’s claims because she had not exhausted her administrative
remedies. On December 3, 2002, the district court adopted the
magistrate judge’s recommendations and dismissed Amos’s claims
for lack of subject matter jurisdiction. On June 18, 2003, this
court affirmed the judgment of the district court in an
unpublished decision. See Amos v. Blue Cross NM, No. 03-30064,
2003 WL 21756364 (5th Cir. June 18, 2003).
Undeterred, Amos, proceeding pro se and in forma pauperis,
filed yet another complaint in the Western District of Louisiana
on September 29, 2003. In this complaint, Amos sued BCBS of New
Mexico, BCBS of South Carolina, PGBA, Kathy Griffin (an employee
of PGBA), Debbie Dixon (a PGBA supervisor), Bonnie Michalski (a
PGBA technician), Ken Godbold (a PGBA supervisor), BCBS
Administrator, Rocky Mountain Health Systems, Shawndra White,
Tri-Span, Inc. (collectively, the “federal defendants”), and
Conrad & Associates (“Conrad”). Amos had previously named five
of these parties as defendants in her April 30, 2001, complaint:
3
BCBS of New Mexico, Kathy Griffin, Debbie Dixon, Bonnie
Michalski, and Ken Godbold.
Amos’s September 29, 2003 complaint, similar to her prior
complaints, alleged that certain Medicare intermediaries: (1)
failed to approve Medicare claims submitted by PDC; and (2)
falsely claimed that they made overpayments to PDC. According to
this complaint, these intermediaries are still claiming monies
not due to them and are withholding monies due to Amos in an
attempt to defraud her. Specifically, Amos alleges that BCBS and
PGBA have colluded with each other to defraud her. Furthermore,
she states that the defendants “put together an elaborate scheme
that successfully stole millions of dollars from plaintiff and
her company through fraud and falsification of records to two
separate governmental agencies.” Amos also claims that PGBA
wrongfully took monies for overpayments totaling hundreds of
thousands of dollars, although she does not specify precisely
when this taking occurred.
While Amos’s latest complaint is difficult to comprehend and
does not specify precisely how the defendants took money from
her, a review of the record shows that her claims relate to two
actions taken by BCBS of New Mexico. In 1993, BCBS of New Mexico
determined that PDC had been overpaid in the amount of $465,953.
Accordingly, it issued a Notice of Program Reimbursement on
September 7, 1993, notifying PDC of the overpayment and of its
right to appeal within 180 days. At the time that Amos’s prior
4
complaints were dismissed in 2002 for failure to exhaust her
administrative remedies, Amos had not appealed this overpayment
determination. However, on August 23, 2003, approximately eight
months after the dismissal of her prior claims and nearly ten
years after the issuance of the 1993 Notice of Program
Reimbursement, Amos filed an appeal of this overpayment
determination. This appeal is still pending. Similarly, BCBS of
New Mexico notified PDC of another overpayment of $318,540 on
September 7, 1994, and it once again gave PDC 180 days to appeal
the Notice of Program Reimbursement. Amos did file a timely
appeal of this overpayment determination. However, on July 23,
2002, the HHS’s Provider Reimbursement Review Board (“PRRB”)
dismissed this appeal because Amos failed to appear at the
hearing on the appeal.
Shortly after Amos filed her September 29, 2003 complaint,
all of the defendants filed motions to dismiss. On April 27,
2004, a magistrate judge issued a report and recommendation
suggesting that the district court grant the defendants’ motions
to dismiss. The federal defendants (i.e., all defendants other
than Conrad) moved to dismiss for lack of subject matter
jurisdiction because Amos failed to exhaust her administrative
remedies prior to filing suit. The magistrate judge recommended
that all claims against the federal defendants be dismissed for
this reason. Conrad, an accounting firm that audited reports
submitted by Amos to PGBA, also moved to dismiss on a number of
5
grounds. The magistrate judge recommended that Amos’s claims
against Conrad be dismissed because they were baseless (i.e.,
because Amos only mentioned Conrad in her jurisdictional
allegations and in her prayer for relief). The magistrate judge
also included a “Sanctions” section in her report. In this
section, she stated that “[i]n light of the clearly duplicative
filings by Amos, plaintiff is warned that future filings of
frivolous suits may result in sanctions, including the assessment
of attorneys fees and costs against plaintiff.” The magistrate
judge then concluded that “in order to prevent future filings of
duplicative cases containing the same procedural defects, the
undersigned recommends that the court require Amos to obtain
leave of court to file future cases in any office of the Federal
Court in the Western District of Louisiana.”
On May 14, 2004, the district court accepted the magistrate
judge’s recommendations, dismissed Amos’s claims, and ordered
Amos not to file future claims without first obtaining leave of
court. Amos now appeals the district court’s dismissal of her
case.
II. STANDARD OF REVIEW
This court reviews a dismissal under FED. R. CIV. P. 12(b)(6)
de novo, applying the same standards as the district court.
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per
curiam). A complaint will be dismissed under Rule 12(b)(6) only
6
if “it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Similarly, this court reviews questions of subject matter
jurisdiction de novo. Bissonnet Invs. LLC v. Quinlan (In re
Bissonnet Invs. LLC), 320 F.3d 520, 522 (5th Cir. 2003).
Pro se pleadings are held to less stringent standards than
formal pleadings drafted by lawyers. Miller v. Stanmore, 636
F.2d 986, 988 (5th Cir. Unit A Feb. 1981). However, even if a
plaintiff is proceeding pro se, “conclusory allegations or legal
conclusions masquerading as factual conclusions will not suffice
to prevent a motion to dismiss.” Fernandez-Montes v. Allied
Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993).
III. ANALYSIS
On appeal, Amos claims that the district court erred when
it: (1) refused to grant default judgment in her favor after the
defendants failed to file timely responses to her September 29,
2003 complaint; (2) found that she had not exhausted her
administrative remedies; (3) concluded that the sixty-day
limitations period for filing a civil action had expired before
she filed the present lawsuit; and (4) granted Conrad’s motion to
dismiss. Below, we address each of these arguments in turn.
A. Failure To Grant Default Judgment
7
First, Amos claims that the district court erred by not
granting default judgment in her favor when the defendants failed
to respond in a timely manner to her complaint. This claim fails
because the defendants filed timely responses to Amos’s
complaint.
The record in the present case indicates that the district
court granted several extensions of time for the defendants to
file their responsive pleadings to Amos’s September 29, 2003
complaint. Ultimately, it gave Conrad until December 24, 2003 to
file its responsive pleading. On December 5, 2003, Conrad filed
a timely motion to dismiss. Likewise, the district court gave
the remaining defendants until January 1, 2004 to file their
responsive pleadings. They jointly filed a timely motion to
dismiss on December 30, 2003. Accordingly, none of the
defendants failed to file a timely response to Amos’s complaint,
as Amos alleges. Moreover, even if one or more of the defendants
filed a late response--which they did not--this circuit has
“adopted a policy in favor of resolving cases on their merits and
against the use of default judgments.” Rogers v. Hartford Life
and Accident Ins. Co., 167 F.3d 933, 936 (5th Cir. 1999); Sun
Bank of Ocala v. Pelican Homestead & Sav. Ass'n, 874 F.2d 274,
276 (5th Cir. 1989) ("Default judgments are a drastic remedy, not
favored by the Federal Rules and resorted to by the courts only
in extreme situations." (internal footnotes omitted)). Finally,
the federal defendants are considered agents of the federal
8
government. See Peterson v. Weinberger, 508 F.2d 45, 51-52 (5th
Cir. 1975) (holding that fiscal intermediaries that processed
Medicare reimbursement claims were agents of the federal
government). Accordingly, the district court could not enter
default judgment against them because FED. R. CIV. P. 55(e)
prohibits default judgment against the government and employees
and agencies thereof. For all of these reasons, the district
court did not err when it refused to grant Amos’s request for
default judgment.
B. Exhaustion Of Administrative Remedies
Second, Amos contends that the district court erred when it
found that she had failed to exhaust her administrative remedies
before filing the present lawsuit. In support of this claim,
Amos appears to argue that the PRRB cannot hear certain of her
claims (e.g., her theft, fraud, intimidation, and harassment
claims). Hence, she appears to argue that it would be futile for
the district court to require her to exhaust her administrative
remedies. Amos’s arguments in this regard fail.
Under 42 U.S.C. § 405, a party may file a lawsuit pertaining
to a Medicare reimbursement dispute only after exhausting her
administrative remedies.1 Specifically, a company or individual
who is unhappy with a determination made by a Medicare
1
While 42 U.S.C. § 405 sets forth Social Security review
procedures, the relevant provisions of this statute are made
applicable to Medicare disputes by 42 U.S.C. § 1395ii.
9
intermediary may request a hearing before the PRRB within 180
days of the issuance of the Notice of Program Reimbursement,
provided that the amount in controversy is greater than $10,000.
42 U.S.C. § 1395oo; 42 C.F.R. § 405.1841(a). After conducting a
hearing, the PRRB can affirm, reverse, or modify the fiscal
intermediary’s determination. 42 C.F.R. § 405.1841(b). The
Secretary of HHS then has sixty days within which it may affirm,
reverse, or modify the PRRB’s decision. 42 U.S.C.
§ 1395oo(f)(1); 42 C.F.R. § 403.1875. The company or individual
that filed the appeal has sixty days from the date of the
Secretary’s decision to file a civil action. 42 U.S.C.
§ 1395oo(f). The Supreme Court has recognized that a party may
not file a civil suit regarding a reimbursement claim under the
Medicare Act until it has exhausted its administrative remedies.
See Heckler v. Ringer, 466 U.S. 602, 617-19 (1984) (dismissing a
reimbursement dispute under the Medicare Act for failure to
exhaust administrative remedies); Weinberger v. Salfi, 422 U.S.
749, 764 (1975) (holding that when a party is required to exhaust
administrative remedies before filing suit, a final
administrative decision is a jurisdictional prerequisite to
suit).
In the present case, Amos has failed to exhaust her
administrative remedies. With respect to the 1993 overpayment
determination, Amos has only recently filed an appeal. Her
appeal appears to be untimely, since it was filed many years
10
after the 180-day limitations period for filing it expired.1
Nevertheless, since Amos only recently filed her appeal, the PRRB
has yet to render a decision on it. Accordingly, no final agency
decision regarding this claim exists, and there is no basis for
this court to exercise jurisdiction over this claim.
With respect to the 1994 overpayment determination, Amos
filed a timely appeal, which was dismissed by the PRRB because
Amos failed to show up at the hearing on the appeal. The
magistrate judge found that by failing to attend the hearing,
Amos failed to exhaust her administrative remedies. Similarly,
according to the federal defendants, the PRRB’s dismissal of her
claim was not a final agency decision and, accordingly, Amos has
not exhausted her administrative remedies. If the PRRB’s
dismissal was not a final agency decision, then Amos has failed
to exhaust her administrative remedies regarding the 1994
overpayment determination, and the district court lacked
jurisdiction to hear her lawsuit regarding it. Conversely, if
Amos is correct and the PRRB’s dismissal was a final agency
decision, the district court still lacked jurisdiction to hear
Amos’s lawsuit regarding it because she did not file suit within
the sixty-day limitations period (the PRRB dismissed Amos’s claim
on July 23, 2002, but Amos did not file this lawsuit until more
2
The 180-day period for filing an appeal of the
September 1993 overpayment determination expired in March 1994,
but Amos did not file her appeal until August 2003.
11
than a year later, on September 29, 2003). See 42 U.S.C. §
1395oo(f) (stating that a party may file a civil action within
sixty days of the receipt of notice of any final decision by the
PRRB or of any reversal, affirmance, or modification by the
Secretary of HHS). Thus, regardless of whether or not the PRRB’s
dismissal of Amos’s claim was a final agency decision, the
district court lacked jurisdiction to hear Amos’s lawsuit
regarding it.
C. The Sixty-Day Limitations Period
Third, Amos claims that the district court erred when, in
Amos’s words, it stated that “the 60day [sic] status [sic] of
limitation [sic] had expired for filing a civil claim.” Amos
does not explain what she means by this, nor does she attempt to
justify her position with any arguments. Moreover, a review of
the district court’s ruling on the defendants’ motions to dismiss
and the magistrate judge’s report and recommendation shows that
neither court ever said that a sixty-day statute of limitations
deadline had expired for Amos to file a civil claim.
While Amos does not explain what limitations period she is
referring to, her reference to a sixty-day limitations period
likely refers to the fact that, as discussed above, a party has
sixty days to file a civil action after the PRRB or the Secretary
of HHS renders a final decision on an appeal of an overpayment
determination. See 42 U.S.C. § 1395oo(f). As stated above, no
12
final decision has been rendered regarding Amos’s recent appeal
of the 1993 overpayment determination. Likewise, assuming
arguendo that the PRRB’s dismissal of Amos’s claim was a final
agency decision (if not, Amos’s claim regarding it is barred
because she has not exhausted her administrative remedies), Amos
did not file a civil suit regarding the dismissal within the
sixty-day limitations period but instead waited more than a year
before filing suit. Accordingly, Amos fails in her argument that
the district court erred when it found that the sixty-day statute
of limitations had expired for the filing of a civil claim.
D. Dismissal Of Conrad & Associates
Finally, Amos argues that the district court erred by
granting Conrad’s motion to dismiss. According to Amos, Conrad
should be held accountable for “submitting fraudulent information
violating public policy.” Amos also makes the following
statement in her appellate brief: “The accountants knew or
should have known that employees can not be denied salaries
worked for or benefits. These accounts submitted error
information causing employees not to be paid.” Amos does not
explain what she means by this statement.
Under 28 U.S.C. § 1915(3)(2), this court can dismiss a
complaint filed in forma pauperis if the complaint is frivolous
and malicious or if it fails to state a claim upon which relief
may be granted. Furthermore, in order to survive a motion to
13
dismiss, a plaintiff must plead specific facts in her complaint.
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th
Cir. 2000). Conclusory allegations will not suffice to avoid a
motion to dismiss. Id.; Mills v. Crim. Dist. Ct. # 3, 837 F.2d
677, 678 (5th Cir. 1988).
Amos has put forward no concrete allegations whatsoever
against Conrad in her complaint, response to Conrad’s motion to
dismiss, appellate brief, or reply to Conrad’s brief on appeal.
In her complaint, Amos only mentions Conrad in her jurisdictional
allegations and in her prayer for relief. Similarly, in her
appellate brief, Amos again fails to state a valid cause of
action against Conrad--at most, she vaguely contends that it
breached the standard of care applicable to accountants. She
does not, however, provide any specifics about how or when this
occurred. As the magistrate judge and the district court
correctly concluded, Amos has pled no facts that could possibly
indicate that Conrad may be liable for any of its actions.
Accordingly, Amos’s allegations provide no basis for relief
against Conrad, and the district court properly dismissed her
claims against it.
IV. CONCLUSION
For the foregoing reasons, the we AFFIRM the judgment of the
district court.
14