NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-4475

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WILLIAM E. BROWN,

 Appellant

v.

UNITED STATES STEEL CORPORATION;

UNITED STATES STEEL AND CARNEGIE PENSION FUND

____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-10-cv-00780)

Magistrate Judge: Honorable Robert C Mitchell

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Submitted Pursuant to Third Circuit LAR 34.1(a)

October 25, 2011

Before: FISHER, VANASKIE and ROTH, Circuit Judges.

(Filed: November 17, 2011)

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OPINION OF THE COURT

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FISHER, Circuit Judge.

William E. Brown (“Brown”) appeals the District Court‟s conversion of the 

Defendants‟ motion to dismiss to a motion for summary judgment and its subsequent 

granting of the summary judgment motion. For the reasons stated below, we will affirm.
2

I.

We write principally for the parties, who are familiar with the factual context and 

legal history of this case. Therefore, we will set forth only those facts necessary to our 

analysis.

Brown began working for United States Steel Corporation (“U.S. Steel”) on 

August 5, 1968. On October 22, 1981, he suffered a work-related injury in a motor 

vehicle accident, which prevented him from returning to work. At the time, he was 

enrolled in U.S. Steel‟s self-insured workers‟ compensation program, which covered his 

medical bills and a portion of his lost wages in accordance with Pennsylvania workers‟ 

compensation law. At the time of his injury and thereafter, Brown‟s health insurance 

benefits were administered by the United States Steel and Carnegie Pension Fund (“the 

Pension Fund”) and paid for by U.S. Steel as part of a self-insured employer group health 

plan.

In 1986, Brown filed an Application for Retirement Benefits to the Pension Fund 

under the class of “permanent incapacity” retirement. U.S. Steel and the Pension Fund 

(the “Defendants”) argue that this is indicative of Brown‟s retirement from the company. 

Since July 1986, Brown has received monthly pension payments in the amount of 

$317.76 (which was later increased to $367.75 due to collective bargaining agreements) 

with a supplement of $400 per month until he attained the age of sixty-two or became 

eligible for Social Security Disability benefits as provided in Section 3.4 of the 1980 
3

Pension Agreement. Accordingly, his active employee insurance coverage ceased on 

June 30, 1986, and he enrolled in the company-paid hospital and physicians‟ services 

benefits under the Program of Hospital-Medical Benefits for Eligible Pensioners and 

Surviving Spouses. In 1987, Brown was awarded Social Security Disability benefits 

retroactive to 1984.

On June 26, 1989, the Pension Fund received a report from the Social Security 

Administration (“SSA”) indicating that Brown was entitled to Medicare Part A coverage 

as of July 1, 1984. Brown alleges that the U.S. Steel benefits office counseled him to 

apply for Medicare Part B coverage in 1989 and then again in 1992 after his first 

application was denied. His second application for Medicare Part B coverage was 

approved. Between 1992 and 2004, Medicare paid approximately $750,000 in medical 

expenses incurred by Brown and his family.

In September 2005, the SSA determined that Brown improperly applied for 

Medicare Part B benefits and refunded him the supplemental premiums that he had been 

paying since 1992. Brown argues that under the Medicare Secondary Payer statute 

(“MSP”), the Defendants are obligated to repay Medicare for these medical expenses that 
4

had been conditionally paid by Medicare but should have been paid by the company‟s 

health plan.1 He first notified U.S. Steel of the SSA‟s determination on June 1, 2006.

On June 8, 2010, Brown filed suit against the Defendants seeking to recover the 

amount allegedly owed by the Defendants.2 On August 26, 2010, Defendants filed a 

motion to dismiss or, in the alternative, a motion for summary judgment. In support of 

the motion, Defendants filed an affidavit from Michael Stehura, the Director of the 

Pension and Retiree Benefits Administration for the Pension Fund, with accompanying 

exhibits. On August 27, 2010, the District Court entered an order stating that the motion 

may be treated as a motion for summary judgment. On September 10, 2010, Brown 

submitted his response opposing both the conversion of the motion as well as summary 

 

1 Under the MSP, Medicare may make conditional payments for covered services 

“if a primary plan . . . has not made . . . payment with respect to such item or services 

promptly.” 42 U.S.C. § 1395y(b)(2)(B)(i). However, a primary plan must reimburse 

Medicare for such conditional payments “if it is demonstrated that such primary plan has 

or had the responsibility to make payment.” Id.

2

The Defendants argued in their motion for summary judgment that Brown lacked 

standing to bring suit because he did not suffer any injury when Medicare is not currently 

seeking reimbursement from Brown. We agree with the District Court that Brown has 

standing to sue because the June 1, 2009 letter from the Medicare Secondary Payer 

Recovery Contractor notified Brown that the “conditional payments are subject to 

reimbursement to Medicare from proceeds received pursuant to a workers‟ compensation 

settlement . . . [and they] are still investigating this matter to obtain any other outstanding 

Medicare conditional payments.” The imminent injury from unresolved conditional 

payments made on his behalf is sufficient to give Brown standing. See Friends of the 

Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 180 (2000) (citing Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560-61 (1992)).
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judgment. On October 29, 2010, the District Court converted the Defendants‟ motion to 

a motion for summary judgment and granted it. Brown timely appealed.

II.

The District Court had subject matter jurisdiction under 42 U.S.C. 

§ 1395y(b)(3)(A) and 28 U.S.C. § 1331. We have appellate jurisdiction under 28 U.S.C. 

§ 1291. We exercise plenary review when deciding whether the District Court erred in 

converting a motion to dismiss into a motion for summary judgment. In re Rockefeller 

Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287 (3d Cir. 1999). We review a claim that 

the District Court prematurely granted summary judgment for abuse of discretion. 

Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 510 (3d Cir. 1994) (citation omitted). Our 

review of the District Court‟s grant of summary judgment is plenary, and in making this 

determination, we view the facts in the light most favorable to the nonmoving party. 

Norfolk S. Ry. Co. v. Basell U.S.A. Inc., 512 F.3d 86, 91 (3d Cir. 2008).

III.

Brown first submits that the District Court erred in converting the Defendants‟ 

motion to dismiss into a motion for summary judgment. Under Rule 12(d) of the Federal 

Rules of Civil Procedure, a district court properly converts a motion to dismiss into a 

motion for summary judgment if (1) the materials submitted go outside of the pleadings 

and are not excluded by the court and (2) the parties had adequate notice of the district 

court‟s intention to convert. See In re Rockefeller, 184 F.3d at 287. The motion was 
6

properly converted here. First, the parties submitted affidavits and documents, such as 

the affidavit of Michael Stehura, that were not excluded by the District Court, which 

required conversion of the motion to dismiss because they went beyond the pleadings. 

Second, on August 27, 2010, the District Court entered an order advising the parties that 

the motion may be treated as a motion for summary judgment and notified Brown to file 

an appropriate response, including possible affidavits, in opposition to the motion by 

September 10, 2010. This provided adequate notice. Thus, the District Court properly 

converted the motion to dismiss into a motion for summary judgment.

Brown next submits that the District Court abused its discretion in granting the 

motion before giving Brown a reasonable opportunity for discovery. If a motion to 

dismiss is treated as a motion for summary judgment, then the “parties must be given a 

reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. 

Civ. P. 12(d). Brown asserts that this “reasonable opportunity to present all materials” 

includes the opportunity to engage in discovery to obtain the pertinent information. 

Brown is correct that we are “obliged to give a party opposing summary judgment an 

adequate opportunity to obtain discovery.” Dowling v. City of Phila., 855 F.2d 136, 139 

(3d Cir. 1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). But if a party 

believes it needs additional time for discovery, it must follow the procedure outlined in 

Rule 56(f) of the Federal Rules of Civil Procedure. Id. “This court has interpreted Rule 

56(f) as imposing a requirement that a party seeking further discovery in response to a 
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summary judgment motion submit an affidavit specifying . . . what particular information 

is sought; how, if uncovered, it would preclude summary judgment; and why it has not 

previously been obtained.” Id. at 139-40 (citing Hancock Indus. v. Schaeffer, 811 F.2d 

225, 229-30 (3d Cir. 1987)). We reject Brown‟s argument because his failure to file a 

Rule 56(f) affidavit is fatal to his claim of insufficient discovery. See Bradley v. United 

States, 299 F.3d 197, 207 (3d Cir. 2002) (citation omitted).

Brown contends that he constructively complied with Rule 56(f) when he filed an 

affidavit in response to the Defendants‟ motion stating, “It is my belief that there are 

many additional records maintained by the Defendants (personnel, workers 

compensation, payroll, health insurance, disability pension, benefits) that will confirm 

and support my contention that I was an „active employee‟ of U.S. Steel . . . even though 

I was disabled. It is also my belief that there are witnesses still employed at U.S. Steel 

who will corroborate my position if subpoenaed to testify.” There is a strong 

presumption against finding constructive compliance. Bradley, 299 F.3d at 207. And 

even if we were to find constructive compliance, Brown did not specify what particular 

information he was seeking. See Dowling, 855 F.2d at 140. Merely stating that the 

Defendants have “additional records” and employs potentially helpful witnesses was 

insufficient to identify the information Brown sought in discovery. Moreover, he failed 

to state why the information sought had not previously been obtained. See id. Therefore, 
8

the District Court did not abuse its discretion in granting the Defendants‟ motion for 

summary judgment without allowing Brown to seek additional discovery.

Next, Brown submits that the District Court abused its discretion under Federal 

Rule of Civil Procedure 56(d) by not deferring its consideration of the summary 

judgment motion. Rule 56(d) states, “[i]f a nonmovant shows by affidavit or declaration 

that, for specified reasons, it cannot present facts essential to justify its opposition, the 

court may: (1) defer considering the motion or deny it, (2) allow time to obtain affidavits 

or declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. 

Civ. P. 56(d). He argues that “where the facts are in possession of the moving party[,] a 

continuance of a motion for summary judgment for purposes of discovery should be 

granted almost as a matter of course.” Costlow v. United States, 552 F.2d 560, 564, (3d 

Cir. 1977) (citation omitted). The District Court did not abuse its discretion because 

under Rule 56(d), Brown failed to adequately state the specific reasons he could not 

present facts essential to justify his position. His unsubstantiated belief that Defendants 

have “additional records” and employ potentially helpful witnesses was insufficient to 

compel the District Court to exercise its discretion under Rule 56(d).

Finally, Brown submits that even without further discovery, the District Court 

erred in granting the summary judgment motion because there are genuine issues of 

material fact regarding his employment status. The District Court held that based on the 
9

record, Brown could not prevail on his MSP claim because he is a retiree, not an active 

employee, and MSP only applies to active employees. We agree with the District Court.

There is no genuine issue as to Brown‟s employment status at the time Medicare 

made the relevant payments. Stehura‟s affidavit states that Brown elected to retire from 

U.S. Steel, effective June 30, 1986. Brown began receiving retirement benefits under a 

“permanent incapacity” class of retirement, covered by the 1980 Pension Agreement, on 

July 1, 1986. Under section 5 of the 1980 Pension Agreement, Brown‟s retirement ended 

his continuous service. There is no evidence that his retirement status ever changed.

We need not entertain Brown‟s argument that Stehura lacked personal knowledge 

regarding Brown‟s employment status because this issue was never raised in the District 

Court. See Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 142 (3d Cir. 2001). Even if 

we were to entertain this claim, we must reject it. According to his affidavit, as the 

Director of the Pension and Retiree Benefits Administration for U.S. Steel, Stehura had

personal knowledge of the retirement benefits that [were] being provided to . . . Brown” 

and had “access to his file, which [he] . . . reviewed.”

We also reject Brown‟s argument that there are three pieces of evidence indicating 

he was an active employee. First, in a letter sent to the SSA on March 10, 1992, J.P. 

Finan, the Manager of Retiree Benefits for the Pension Fund, wrote “not applicable” in 

response to the question “Date Employment Terminated.” Brown argues that this 

indicates he was not regarded as a retiree. But in the preceding response, Finan also 
10

wrote that Brown‟s employer group health coverage was “still in effect” because “there is 

no reason [Brown‟s] coverage would be terminated. As [Brown] is Medicare eligible[,] 

his retiree health coverage is secondary to Medicare.” Read in context, Finan‟s responses 

demonstrate that Brown received retiree health coverage and the Pension Fund treated 

him as a retiree.

Second, a July 5, 1994 letter from Robert T. Wilson, Manager of Workers‟ 

Compensation for U.S. Steel, attempts to limit the company‟s liability for Brown‟s 

workers‟ compensation claim and states that “establishment of work capacity will 

undoubtedly impact” the other benefits he receives. Brown alleges that this is 

inconsistent with the claim that he had retired in 1986. However, under Pennsylvania 

law, workers‟ compensation benefits continue after retirement when the claimant shows 

that he intends to seek employment after retirement. See Armstrong World Indus. v. 

Workers’ Comp. Appeal Bd. (Evans), 703 A.2d 90, 91 (Pa. Commw. Ct. 1997). Thus, 

this statement regarding Brown‟s potential future employment fails to prove that U.S. 

Steel did not regard him as a retiree.

Third, the SSA‟s September 26, 2005 letter notified Brown that it was reimbursing 

him for past Supplemental Medical Insurance Premiums because he had been 

“improperly advised to apply for that coverage in March 1992.” Other than pointing to 

this language, Brown fails to show how this letter indicates there was a dispute as to his 

employment status. The fact that Brown was not eligible for Medicare coverage does not 
11

prove that he was an active employee of U.S. Steel. Thus, the evidence fails to 

demonstrate a genuine issue of material fact sufficient to defeat summary judgment.

IV.

For the foregoing reasons, we will affirm the District Court‟s order.