Thomas v. Blue Cross and Blue Shield Ass'n

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-15881 JANUARY 21, 2010
________________________ JOHN LEY
ACTING CLERK
D. C. Docket No. 03-21296-CV-FAM

M.D. KENNETH A. THOMAS, et al.,

Plaintiffs,

versus

BLUE CROSS AND BLUE SHIELD ASSOCIATION,
et al.,

Defendants,

DR. RONALD ROBERTSON,

Appellant,

BLUE CROSS BLUE SHIELD OF FLORIDA, INC.,
HEALTH OPTIONS, INC.,

Defendants-Appellees.
________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 21, 2010)
Before EDMONDSON and PRYOR, Circuit Judges, and CAMP,* District Judge.

PRYOR, Circuit Judge:

This appeal presents the issue whether we have jurisdiction to review an

order that summarily denied a physician’s motion for permission to prosecute a

complaint against Blue Cross Blue Shield of Florida, Inc., and its subsidiary,

notwithstanding a permanent injunction that barred physicians from prosecuting

claims released as part of the settlement of a national class action. A class of

physicians had complained that Blue Cross and Blue Shield Association, Inc., and

its member plans had engaged in a scheme to deny, delay, and reduce payments to

the physicians. As part of the settlement, the physicians agreed to release the Blue

Cross plans from all claims arising from or related to the class action and settlement

agreement, and the district court permanently enjoined the members of the class

from prosecuting released claims against the Blue Cross plans. Dr. Donald W.

Robertson later moved for clarification as to whether the injunction barred his

complaint in a Florida court against Blue Cross Blue Shield of Florida, Inc., and

Health Options, Inc. Because the order that denied Robertson’s motion is not final

or otherwise appealable, we dismiss this appeal for lack of jurisdiction.

*
Honorable Jack T. Camp, United States District Judge for the Northern District of
Georgia, sitting by designation.

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 I. BACKGROUND

In May 2003, several physicians, on behalf of themselves and all other

similarly situated physicians, filed a complaint against Blue Cross and Blue Shield

Association, Inc., and its member plans throughout the United States. The

complaint asserted claims of conspiracy and aiding and abetting under the

Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961–1968, and

sought damages as well as declaratory and injunctive relief. The physicians’ claims

were based on allegations that the health insurance companies had “engaged in a

conspiracy to improperly deny, delay, and/or reduce payments to physicians,

physician groups, and physician organizations by engaging in several types of

allegedly improper conduct.”

The parties eventually agreed to a settlement of the class action. The district

court later entered an order that certified the class and granted final approval of the

settlement agreement. Love v. Blue Cross & Blue Shield Ass’n, Inc., No. 03-21296

(S.D. Fla. Apr. 19, 2008). As part of the settlement, the Blue Cross plans agreed to

implement business practice initiatives and establish a settlement fund for payment

of claims to class members. In exchange, the class members agreed to release the

Blue Cross plans from all claims arising out of or related to matters referenced in

the class action and the settlement agreement:

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 Upon the Effective Date, the “Released Parties[]” . . . shall be
released and forever discharged . . . from any and all causes of action .
. . of whatever kind, source or character whether arising under any
federal or state law, which . . . includes, but is not limited to, the
Racketeer Influenced and Corrupt Organizations Act, antitrust and
other statutory and common law claims, intentional or non-intentional,
. . . arising on or before the Effective Date, that are, were or could have
been asserted against any of the Released Parties by reason of, arising
out of, or in any way related to any of the facts, acts, events,
transactions, occurrences, courses of conduct, business practices,
representations, omissions, circumstances or other matters referenced
in the Action, or addressed in this Agreement . . . .

The district court permanently enjoined the releasing parties from filing or

prosecuting “any or all Released Claims against one or more Released Parties.”

The parties do not dispute that Robertson is a releasing party or that Blue Cross

Blue Shield of Florida and Health Options are released parties. In a separate order,

the district court entered judgment in the class action and dismissed all claims

against Blue Cross and its member plans with prejudice. The district court

expressly retained jurisdiction as to matters relating to the interpretation,

administration, and consummation of the settlement agreement, and the

enforcement of extant injunctions.

Robertson commenced a civil action against Blue Cross Blue Shield of

Florida and its subsidiary, Health Options, in a Florida court in July 2003, two

months after the complaint had been filed in the national class action. Robertson’s

complaint asserted claims of tortious interference with a business relationship,

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unauthorized publication, breach of contract, and violation of the duty of good faith

and fair dealing. According to Robertson, “the gravamen [of his Florida action] is

not Blue Cross’ improper policies and procedures with respect to reimbursements

and referrals . . . but the retaliatory targeting of Dr. Robertson for speaking out

against those policies and procedures.”

Although all class members were given an opportunity to opt out of the

settlement agreement, Robertson failed to opt out by the prescribed deadline. He

attempted to opt out two weeks after the deadline, but the settlement administrator

denied his request. Several weeks after the district court granted final approval of

the settlement agreement and enjoined class members from filing or prosecuting

released claims, the Florida Blue Cross plans demanded that Robertson dismiss his

Florida action.

Robertson filed a motion in the district court for two kinds of relief. First,

Robertson sought an order declaring that the settlement agreement did not release

his claims and granting him permission to prosecute his complaint in the Florida

court. Second, Robertson sought an order declaring that, if the district court

decided to reconsider its earlier order denying the similar request of a class member

to opt out belatedly of the settlement agreement, then it would consider Robertson’s

request to opt out belatedly as well.

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 On September 4, 2008, the district court denied Robertson’s motion in its

entirety, but the district court did not address the merits of Robertson’s motion. The

order stated only that the district court “ha[d] considered the motion, response and

the pertinent portions of the record.”

II. DISCUSSION

Neither party challenges our jurisdiction to entertain this appeal, but “we are

obligated to address jurisdictional questions sua sponte.” Frulla v. CRA Holdings,

Inc., 543 F.3d 1247, 1250 (11th Cir. 2008). In their briefs, both Robertson and the

Florida Blue Cross plans asserted that we have jurisdiction because the order that

denied Robertson’s motion is a final decision that disposed of all of his claims. At

oral argument, the Florida Blue Cross plans reluctantly conceded that the order is

“probably” not a final decision, but Robertson argued that we should exercise

jurisdiction under the Declaratory Judgment Act, which provides that declaratory

judgments are final decisions, 28 U.S.C. § 2201.

The potential bases for our jurisdiction are few and well defined. Our

jurisdiction is ordinarily limited to appeals from final decisions of the district

courts. 28 U.S.C. § 1291; see also World Fuel Corp. v. Geithner, 568 F.3d 1345,

1348 (11th Cir. 2009). We also have jurisdiction over a narrow class of cases

excepted from the final judgment rule under the collateral order doctrine. Cohen v.

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Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 1225–26 (1949);

Miccosukee Tribe of Indians v. S. Fla. Water Mgmt. Dist., 559 F.3d 1191, 1198

(11th Cir. 2009). Additionally, we have jurisdiction to review certain interlocutory

orders of the district courts—those “granting, continuing, modifying, refusing or

dissolving injunctions, or refusing to dissolve or modify injunctions.” 28 U.S.C. §

1292(a)(1); see also Birmingham Fire Fighters Ass’n 117 v. Jefferson County, 280

F.3d 1289, 1292 (11th Cir. 2002).

Because our jurisdiction is limited to a narrow class of decisions, our

jurisdiction to entertain this appeal hinges on the nature of the order that denied

Robertson’s motion. The district court entered the order in a postjudgment

proceeding. Robertson’s motion relied on the jurisdiction that the district court

retained to interpret the settlement agreement and enforce the permanent injunction

barring class members from prosecuting released claims. Robertson’s motion

sought clarification regarding whether the claims in his Florida action are released

claims that are enjoined from prosecution. Robertson’s motion, styled as a “Motion

for Permission to Proceed with His Claims against Defendants Blue Cross and Blue

Shield of Florida, Inc. and Health Options, Inc.,” described the relief Robertson

sought as “an order allowing the Robertson Action to proceed,” an “[o]rder stating

that the Robertson Action is not stayed by this action,” and an order stating that “the

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Settlement did not release Blue Cross from Dr. Robertson’s claims.”

Because the district court did not discuss the merits of Robertson’s motion,

the effect of the order summarily denying Robertson’s motion is unclear. One

plausible interpretation is that the denial is an implicit ruling that Robertson’s

claims are released and that he is enjoined from prosecuting them, but another

plausible interpretation is that the district court denied Robertson’s motion for a

procedural defect. In the absence of an explanation from the district court, we are

left to guess about the reason for its decision.

Robertson’s motion does not fit neatly within our traditional scheme for the

enforcement of injunctions, and it is possible that the district court denied the

motion on that basis. As we have explained repeatedly, “injunctions are enforced

through the district court’s civil contempt power.” Alabama v. U.S. Army Corps of

Eng’rs, 424 F.3d 1117, 1134 n.23 (11th Cir. 2005); see also Reynolds v. McInnes,

338 F.3d 1201, 1208 (11th Cir. 2003); Reynolds v. Roberts, 207 F.3d 1288, 1298

(11th Cir. 2000); Newman v. Alabama, 683 F.2d 1312, 1318 (11th Cir. 1982). If a

party contends that another party is violating an injunction, the aggrieved party

should move the court for an order to show cause why the other party should not be

held in civil contempt. Roberts, 207 F.3d at 1298.

The most we can say about the order that summarily denied Robertson’s

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motion is that it did not alter the status quo. The order did not enforce the

permanent injunction by imposing noncontingent contempt sanctions on Robertson

for prosecuting released claims, which plainly would be an appealable order.

Combs v. Ryan’s Coal Co., 785 F.2d 970, 976–77 (11th Cir. 1986). Nor did the

order deny a motion for an order to show cause why Robertson should not be held

in contempt, which also would be an appealable order. Davis v. Bd. of Sch.

Comm’rs, 517 F.2d 1044, 1052 (5th Cir. 1975). Nor did the order deny contempt

sanctions at the conclusion of a show cause hearing, which also would be an

appealable order. See Combs, 785 F.2d at 976–77. The order left the parties in the

same position as before Robertson filed his motion.

With this understanding of the order, we consider three potential bases for

exercising jurisdiction over Robertson’s appeal. First, we consider whether the

order is a final decision within the meaning of section 1291. Second, we consider

whether the order falls within our jurisdiction under the collateral order doctrine.

Third, we consider whether the order constitutes an interlocutory order that

qualifies for appeal under section 1292(a)(1). In making these determinations, “we

take a ‘functional approach, looking not to the form of the district court’s order, but

to its actual effect.’” Birmingham Fire Fighters, 280 F.3d at 1293 (quoting Sierra

Club v. Marsh, 907 F.2d 210, 213 (1st Cir. 1990)).

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 A. Section 1291 Jurisdiction

Under section 1291, we “have jurisdiction of appeals from all final decisions

of the district courts.” 28 U.S.C. § 1291. In a conventional case, “[a] final order is

one that ends the litigation on the merits and leaves nothing for the court to do but

execute its judgment.” World Fuel Corp., 568 F.3d at 1348 (internal quotation

marks omitted). In postjudgment proceedings, the meaning of a “final decision” is

less clear because the proceedings necessarily follow a final judgment. Ass’n of

Cmty. Orgs. for Reform Now v. Ill. State Bd. of Elections, 75 F.3d 304, 306 (7th

Cir. 1996). Postjudgment decisions “‘are themselves subject to the test of finality.’”

Delaney’s Inc. v. Ill. Union Ins. Co., 894 F.2d 1300, 1304 (11th Cir. 1990) (quoting

9 James W. Moore et al., Moore’s Federal Practice ¶ 110.14[1], at 196–97 (2d ed.

1988)). We “treat the postjudgment proceeding as a free-standing litigation, in

effect treating the final judgment as the first rather than the last order in the case.”

Ass’n of Cmty. Orgs for Reform Now, 75 F.3d at 306. A postjudgment order is

final for purposes of section 1291 only if the order disposes of all issues raised in

the motion. Autotech Techs. LP v. Integral Research & Dev. Corp., 499 F.3d 737,

745 (7th Cir. 2007); see also Motorola, Inc. v. Computer Displays Int’l, Inc., 739

F.2d 1149, 1154 (7th Cir. 1984).

For two reasons, we conclude that the order denying Robertson’s motion

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lacks the finality required for us to exercise jurisdiction under section 1291. First,

as we discussed above, the summary denial of Robertson’s motion did not expressly

rule that Robertson’s claims are released. Nor did it rule that his claims are not

released. We are reluctant to put words into the mouth of the district court,

especially given the unconventional nature of Robertson’s motion. The order did

not “finally settle[] the matter in litigation.” Delaney’s, 894 F.2d at 1305.

Second, even if the order implicitly advised Robertson that his claims are

released and that he is enjoined from prosecuting them, the order did not dispose of

the matter because it “did not hold [Robertson] in contempt or impose any sanction”

for violating the injunction. Major v. Orthopedic Equip. Co., 561 F.2d 1112, 1115

(4th Cir. 1977). Although the order did not direct the parties to take any further

action, our decisions clearly instruct that permanent injunctions are enforced

through the civil contempt power of the court. E.g., Roberts, 207 F.3d at 1298.

Allowing the district court an opportunity to enforce the permanent injunction

through the usual means of contempt proceedings does not preclude appellate

review; it postpones our review until the district court has finally settled the matter

in litigation. If we were to exercise our appellate jurisdiction at this early stage,

before the district court has had an opportunity to enforce the permanent injunction,

“the effect would be to tie the hands of the district court . . . and augment our own

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workload.” Combs, 785 F.2d at 977.

At oral argument, Robertson argued that we should construe the order that

denied his motion as a declaration of his rights with respect to the settlement

agreement, even though he did not file a complaint under the Declaratory Judgment

Act, 28 U.S.C. §§ 2201–2202. Section 2201 provides that “any court of the United

States, upon the filing of an appropriate pleading, may declare the rights and other

legal relations of any interested party seeking such declaration, whether or not

further relief is or could be sought.” A declaration under that Act has “the force and

effect of a final judgment or decree and shall be reviewable as such.” Id.

It is true that Robertson’s motion sought an order declaring that his claims

are not released, but Robertson did not file a complaint for a declaratory judgment.

Robertson instead filed a motion in a postjudgment proceeding. As the Ninth

Circuit recently explained, “‘a party may not make a motion for declaratory relief,

but rather, the party must bring an action for a declaratory judgment.’” Kam-Ko

Bio-Pharm Trading Co., Ltd.-Australasia v. Mayne Pharma (USA), Inc., 560 F.3d

935, 943 (9th Cir. 2009) (quoting Int’l Bhd. of Teamsters v. E. Conference of

Teamsters, 160 F.R.D. 452, 456 (S.D.N.Y. 1995)). The Federal Rules of Civil

Procedure “govern the procedure for obtaining a declaratory judgment under 28

U.S.C. § 2201.” Fed. R. Civ. P. 57. As a result, “the requirements of pleading and

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practice in actions for declaratory relief are exactly the same as in other civil

actions,” including the requirement that “the action is commenced by filing a

complaint.” 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal

Practice and Procedure § 2768 (3d ed. 1998).

Robertson urges us to follow the approach of the Third Circuit in

Interdynamics, Inc. v. Firma Wolf, 698 F.2d 157 (3d Cir. 1982). That court ruled

that it had jurisdiction over an appeal of an order entered in a postjudgment

proceeding related to a consent decree that enjoined a company from infringing the

patent of another company. Id. at 159–63. The allegedly infringing party, Trans

Tech, moved for an order requiring the complaining party to show cause why Trans

Tech should be held in contempt for producing a certain product. Id. at 159–62.

After a hearing to show cause, the district court entered an order advising Trans

Tech that it would be in civil contempt if it produced and marketed the product. Id.

at 160. The Third Circuit noted that the order was not final in the traditional sense,

given that it “expressly contemplated the initiation of further legal proceedings

before any sanctions would be imposed on Trans Tech,” but the court nonetheless

held that the order amounted to a declaratory judgment and was appealable as a

final decision on that basis. Id. at 164–65. It reached this decision even though

Trans Tech did not elect to sue under the Declaratory Judgment Act. Id. at 165.

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The Third Circuit stated that its decision was influenced by the “special role” of

declaratory judgments in patent cases. Id.

We are not bound by the decision of the Third Circuit in Interdynamics, and

we choose not to follow it for two reasons. See Cuban Am. Bar Ass’n v.

Christopher, 43 F.3d 1412, 1424 n.9 (11th Cir. 1995). First, unlike the order in

Interdynamics, the order that denied Robertson’s motion does not explicitly rule

that Robertson’s claims are released or that he would be held in contempt if he

continues to prosecute his claims. In fact, the order does not declare anything

except that Robertson’s motion is denied. Second, the Declaratory Judgment Act

and the Federal Rules of Civil Procedure impose specific requirements for

declaratory judgment actions, and we should not lightly disregard those

requirements to exercise jurisdiction over an otherwise nonfinal order. In reaching

its decision, the Third Circuit explained that declaratory judgments play a special

role in patent cases because they allow a possible infringer to avoid the accrual of a

large amount of avoidable damages and prevent a patent holder from making

oppressive use of the patent. Interdynamics, 698 F.2d at 164–65. Even if the

special role of declaratory judgments in patent cases were a sufficient reason to

construe an otherwise nonfinal order as a declaratory judgment to provide

immediate appellate review, the postjudgment enforcement of a permanent

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injunction barring members of a national class from prosecuting released claims

about racketeering and physician billings would not present the same, or even

similar, concerns. The Declaratory Judgment Act is clear that only declarations

made “upon the filing of an appropriate pleading” have “the force and effect of a

final judgment.” 28 U.S.C. § 2201. Robertson’s motion is not an appropriate

pleading, see Fed. R. Civ. P. 7, and the order that denied his motion is not a final

decision.

B. Collateral Order Jurisdiction

The order that denied Robertson’s motion also is not appealable under the

collateral order doctrine. “‘To come within the “small class” of decisions excepted

from the final-judgment rule by [the collateral order doctrine], the order must [1]

conclusively determine the disputed question, [2] resolve an important issue

completely separate from the merits of the action, and [3] be effectively

unreviewable on appeal from a final judgment.’” Miccosukee Tribe, 559 F.3d at

1198 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S. Ct. 2454,

2458 (1978)). We easily conclude that the order does not satisfy this stringent test.

As explained above, the order does not finally settle the issue whether Robertson is

enjoined from prosecuting his complaint in the Florida court. As a result, the order

does not “conclusively determine the disputed question.”

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 C. Section 1292(a)(1) Jurisdiction

Finally, we consider whether section 1292(a)(1), which allows appeals of

orders modifying injunctions, provides a basis for jurisdiction. For purposes of

1292(a)(1), the distinction between an order clarifying an underlying injunction and

an order modifying an injunction is of crucial importance, as only the latter is an

appealable order. See Birmingham Fire Fighters, 280 F.3d at 1292–93; Ass’n of

Cmty. Orgs. for Reform Now, 75 F.3d at 306; Major, 561 F.2d at 1115. An order

modifies, rather than clarifies, the underlying injunction “when it actually changes

the legal relationship of the parties.” Birmingham Fire Fighters, 280 F.3d at 1293.

An order that interprets an injunction changes the legal relationship of the parties

only when it blatantly misinterprets the injunction. Id. To determine whether an

order blatantly misinterprets the injunction, we look for misinterpretations that

“leap[] from the page.” Id. This limited inquiry prevents the modification

provision of section 1292(a)(1) from “‘serving as a back door to appellate review of

every administrative clarification the district court makes.’” Id. (quoting Gautreaux

v. Chi. Hous. Auth., 178 F.3d 951, 957 (7th Cir. 1999)).

Even if we construe the order as ruling that Robertson’s claims are released

and that Robertson is enjoined from prosecuting them, the order does not qualify for

appeal under section 1292(a)(1) because that ruling would constitute a clarification,

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not a modification, of the underlying injunction. The claim release is extremely

broad, extending to any and all claims arising from or related to matters referenced

in the class action or settlement agreement. Robertson’s claims are based on

allegations that the Florida Blue Cross plans retaliated against him for complaining

about the plans’ improper reimbursement practices. Allegations that the Blue Cross

plans improperly delayed, denied, and reduced payments to physicians formed the

crux of the class action. The order that denied Robertson’s motion, at most,

clarified that Robertson’s complaint in a Florida court was released, but the order

did not modify the permanent injunction. “It is simply an interpretation, not

appealable under 28 U.S.C. § 1292(a)(1).” Major, 561 F.2d at 1115.

III. CONCLUSION

We DISMISS Robertson’s appeal for lack of jurisdiction.

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