                                                        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this opinion should not be published and is not precedent except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
