
USCA1 Opinion

	




          March 2, 1993     UNITED STATES COURT OF APPEALS                                For The First Circuit                                 ____________________          No. 92-2079                               ROBERT GRIFFITH, ET AL.,                               Plaintiffs, Appellants,                                          v.                          LOUIS M. SULLIVAN, M.D., SECRETARY                            OF HEALTH AND HUMAN SERVICES,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               Sarah F. Anderson, Greater  Boston Legal Services, with whom               _________________          Diane  F.  Paulson,  Massachusetts  Medicare   Advocacy  Project,          __________________          Greater  Boston Elderly  Legal Services,  and Alfred  J. Chiplin,                                                        ___________________          Jr.,  National Senior  Citizens  Law Center,  were  on brief  for          ___          appellants.               Gerard  Keating, Attorney,  Department of  Health and  Human               _______________          Services,  Office of  the General  Counsel, with  whom Stuart  M.                                                                 __________          Gerson, Assistant  Attorney General,  A. John  Pappalardo, United          ______                                ___________________          States Attorney, Susan K.  Zagame, Acting General Counsel, Darrel                           ________________                          ______          J. Grinstead,  Associate General Counsel, and  Henry R. Goldberg,          ____________                                   _________________          Deputy Associate  General Counsel for Litigation, U.S. Department          of Health and Human Services, were on brief for appellee.                                 ____________________                                    March 2, 1993                                 ____________________                    TORRUELLA, Circuit Judge.   Appellants seek relief from                               _____________          the district court's dismissal of their challenge to the Medicaid          Part  B reimbursement process.   We  do not  reach the  merits of          appellant's claims, because we lack appellate jurisdiction.                                         FACTS                                        FACTS                                        _____                    As  the facts relevant to  the merits of  this case are          set forth  fully in the district court opinion,1 we do not repeat          them here.   We will  recount only  those facts pertinent  to the          issue of appellate jurisdiction.                      Robert  Griffith commenced  this  case  with  Katherine          Nadworny "for  themselves  and all  others  similarly  situated."          Plaintiffs  claimed that  they were  denied coverage  for durable          medical equipment under Medicare Part B in violation of statutory          and  constitutional law.2   The  complaint  indicated plaintiffs'          intent to seek class certification.                      Before  the district  court  certified  the class,  the          Department  of Health and  Human Services ("HHS")  sent checks to          Griffith and Nadworny for the amount they would have received had          their Medicare Part B claims been granted.                    The   district   court   later   certified   a   class,          substituting   June   Burns   and   Amelio   Bianchi   as   class                                        ____________________          1  Reported at 789 F. Supp. 478 (D. Mass. 1992).          2  Plaintiffs claimed violations of the Medicare Act, Pub. L. No.          89-97,  79 Stat 286 (codified as amended in scattered sections of          42  U.S.C.,  principally     1935  et  seq.), the  Administrative                                             ________          Procedures Act,  5 U.S.C.     551  et seq., 701  et seq.,  3105 &                                             _______       _______          3344,   and  the  Due   Process  Clause  of   the  United  States          Constitution.                                           -3-          representatives.     Robert   Griffith  and   Katherine  Nadworny          continued to sue individually.  The district court found no merit          in the substance of plaintiffs' claims, and this appeal followed.                    The  notice of appeal in  this case was  filed with the          style of "Robert  Griffith, et  al., plaintiffs."   It stated  in          relevant part  "Robert Griffith, et al.,  plaintiffs named above,          hereby appeal . . . ."                                    LEGAL ANALYSIS                                    LEGAL ANALYSIS                                    ______________                    Fed.  R.  App. P.  3(c)  plainly  requires that  "[t]he          notice  of appeal shall specify  the party or  parties taking the          appeal."     The   rule  is   a  jurisdictional   threshold;  its          requirements must be met before we can exercise jurisdiction over          an appeal.  Torres v. Oakland Scavenger Co., 487 U.S. 312, 314-15                      ______    _____________________          (1988).  Thus, the "failure to name a party in a notice of appeal          . . .  constitutes a failure  of that party  to appeal."   Id. at                                                                     ___          314.   The  rule ensures  that both  the appellee  and the  court          receive  notice of the identity  of the appellants,  and that the          appellee and the court are advised  as to exactly who is bound by          an adverse judgment and who is not.  Id. at 318.                                                 ___                    Appellant argues  that the  "Robert  Griffith, et  al."          designation sufficed  to properly name  the certified class  as a          party to the appeal.  We disagree.  "Et al." does not provide the          necessary  specificity for us,  or appellee, to  know who besides          Robert Griffith is a party.  As the Supreme Court stated, "use of          the phrase 'et al.,' which literally  means 'and others,' utterly          fails  to provide such notice to either intended recipient."  Id.                                                                        ___                                         -4-          The  fact that a class has been  certified does not make "et al."          suddenly effective.   Hammon v.  Kelly, 980 F.2d  785, 786  (D.C.                                ______     _____          Cir. 1992);  Ooley v. Schwitzer  Div., Household  Mfg., Inc.  961                       _____    ______________________________________          F.2d 1293,  1305-06 (7th  Cir.), cert.  denied, 61 U.S.L.W.  3261                                           _____________          (1992).                      The decisions  in Rendon v. A.T. & T. Technologies, 883                                      ______    ______________________          F.2d  388, 398  n.8 (5th  Cir. 1989)  and  Al-Jundi v.  Estate of                                                     ________     _________          Rockefeller,  885  F.2d 1060,  1061  n.1  (2d  Cir. 1989),  cert.          ___________                                                 _____          denied,  Mancusi  v. Al-Jundi,  112 S.  Ct.  182 (1991),  are not          ______   _______     ________          contrary to  our result.   In those  cases, the courts  held that          when  the class representative was named in the notice of appeal,          with the  designation "et al."  following, the  entire class  had          appealed properly.    In  the present  case,  however,  even  the          minimal requirement imposed by the Fifth and  Second Circuits was          not met:  the class representative was not named.  As neither the          class nor any  other potential  appellant was named  as a  proper          party to this appeal, we have no jurisdiction over their claims.                    For  the  purpose  of  informing  future  class  action          appellants exactly  what this court expects the  notice of appeal          to  contain, we  adopt  the requirement  imposed  by the  Seventh          Circuit and the  D.C. Circuit.  As  the D.C. Circuit  framed this          requirement, "the notice  of appeal  should state the  name of  a          proper class representative along with some general invocation of          his representative capacity,  such as  'John Smith,  individually          and on behalf of  all other persons similarly situated'  or 'John          Smith, as class representative.'"  Hammon, 980 F.2d at 786.                                             ______                                         -5-                    The only  remaining plaintiff  is Robert Griffith.   We          must  dismiss his appeal as  moot because, as  the district court          noted, he has already  received everything that he claims  he was          entitled  to  recover.   Wilson v.  Secretary  of Health  & Human                                   ______     _____________________________          Services, 671 F.2d 673, 679 (1st Cir. 1982).          ________                    Appeal dismissed.                    ________________                                         -6-
