[00:00:00] Speaker 04: We will begin with 24-6124 of Lamley, and I know I'm going to pronounce the defendant's name incorrectly, but AIDS. [00:00:11] Speaker 04: But Council for Appellant, if you would make your appearance and proceed, please. [00:00:20] Speaker 05: Thank you. [00:00:20] Speaker 05: I may please the court. [00:00:21] Speaker 05: My name is Craig Griffel for the Appellant. [00:00:23] Speaker 05: We're here today because the court dismissed this case on a 12-and-6 motion. [00:00:28] Speaker 05: And we all know what Twomley says, so I'm not going to spend my time on it. [00:00:31] Speaker 05: I think what was interesting in Twomley, the Supreme Court made the statement stating that well-pled complaint may proceed even if it strikes a savvy judge that actual proof of the facts is in probable and recovery is revered and most likely. [00:00:44] Speaker 05: The Supreme Court followed later in the Skinner [00:00:48] Speaker 05: Talking about the fact that in reviewing a 1226 motion, the court does not assess a complaint, the complaint's legal feasibility or weigh the evidence that would be offered at trial. [00:00:57] Speaker 05: That's exactly what the district court did in this case. [00:00:59] Speaker 05: The district court tried this case in the motion to dismiss. [00:01:04] Speaker 05: This is a 1983 action. [00:01:07] Speaker 05: this in in West Yadkins the Supreme Court stated that the state of Cleveland in 1983 the plaintiff must do two things. [00:01:14] Speaker 05: Allege a violation of a right secured by federal law and show that the alleged deprivation was conducted under a person acting under color of law. [00:01:22] Speaker 05: The plaintiff has the appellant has done both of those. [00:01:26] Speaker 05: Now we are proceeding under 42 U.S. [00:01:28] Speaker 05: 1396 AA. [00:01:29] Speaker 05: It's referred to as the reasonable prompt the standard Medicaid. [00:01:33] Speaker 05: What it talks about it says people [00:01:35] Speaker 05: wishing to apply for Medicaid are free to do so, and the state must allow them to do so and furnish benefits with reasonable promise. [00:01:44] Speaker 05: There are two implementing regulations that are at issue here. [00:01:47] Speaker 05: The first requires that those applications be reviewed and processed within 45 days. [00:01:53] Speaker 05: That clearly didn't happen here. [00:01:54] Speaker 05: In Ms. [00:01:55] Speaker 05: Lamley's case, at the time of filing the complaint, it was 181 days since she had filed her application. [00:02:00] Speaker 05: In Ms. [00:02:01] Speaker 05: Houston's case, it was 117 days. [00:02:03] Speaker 05: The second implementing regulation that's at issue here is the state, as the district court found, the state is not free to just ask anything it wants to in those Medicaid applications. [00:02:13] Speaker 05: There are limits. [00:02:14] Speaker 05: The implementing regulation prohibits the agency from requiring information which is not necessary to making the eligibility determination. [00:02:21] Speaker 05: So what's really going on here? [00:02:23] Speaker 05: What's this case about? [00:02:25] Speaker 04: What the case is about initially is whether you have a right to be heard. [00:02:29] Speaker 04: I mean, the elephant in the room is jurisdiction. [00:02:32] Speaker 04: And so I need to have you explain to me, although it is not precedential, why the reasoning of PECA does not apply here and does not say that we don't have jurisdiction. [00:02:45] Speaker 04: And as I see it, just to cut to the trace of what my concern is, as I read your brief, you say that PECA is distinguishable because appellants are not asking for an injunction ordering their certification of Medicaid eligibility and the payment of Medicaid benefits, but rather are questioning the process that the appellees used and its lack of conformity with federal law. [00:03:10] Speaker 04: But the reality is, I look at paragraphs A and B of the second amended complaint, and they ask for exactly those things that you say you're not asking for. [00:03:19] Speaker 04: I mean, A and B talk about an injunction, they talk about an injunction that would allow you to get benefits. [00:03:25] Speaker 04: Why isn't this, why doesn't PECA map nicely onto this case? [00:03:30] Speaker 05: Okay, I tried PECA, and when this case was filed, Ms. [00:03:34] Speaker 05: Lamley and Ms. [00:03:34] Speaker 05: Houston were alive. [00:03:35] Speaker 05: That's why those paragraphs are in the complaint. [00:03:38] Speaker 05: They died during the pendency of the complaint, or during the pendency of the action. [00:03:42] Speaker 05: Now, what PECA stands for is we go back to the 11th Amendment immunity, which says an individual cannot sue the state. [00:03:48] Speaker 05: However, we have the ex parte young decision by the US Supreme Court that carved out an exception to that. [00:03:53] Speaker 05: That exception is that an individual can pursue against the state if they're seeking prospective adjunctive relief. [00:03:59] Speaker 00: Yeah, and ex parte young will get you past the 11th Amendment, but how does that get you past spookness? [00:04:05] Speaker 05: Well, on the PECA decision, what happens is the Miss Lamley and Miss Houston asked for three relief. [00:04:13] Speaker 05: They didn't just ask for their Medicaid applications to be certified. [00:04:17] Speaker 05: They asked for three different things. [00:04:18] Speaker 05: They asked, number one, that their applications be processed timely. [00:04:22] Speaker 05: They asked, number two, the second claim for relief is that the correct criteria be applied in processing those applications. [00:04:28] Speaker 05: And then, number three, they asked for certification of their Medicaid benefits. [00:04:32] Speaker 05: Now, because of their death, the third claim goes away. [00:04:35] Speaker 05: But the other two do not. [00:04:37] Speaker 00: OK, let's say we agree with you. [00:04:41] Speaker 00: But I don't mean to point at you. [00:04:42] Speaker 00: I have a bad habit of doing that. [00:04:43] Speaker 05: I get it all the time. [00:04:44] Speaker 00: Sorry. [00:04:46] Speaker 00: So if we grant a prospective injective relief and say, Ms. [00:04:51] Speaker 00: Lambley and Ms. [00:04:52] Speaker 00: Houston were entitled to a timely processing, a decision within 45 days, and Ms. [00:04:57] Speaker 00: Eades should not have been asking these irrelevant questions, and we grant relief [00:05:04] Speaker 00: How does that help you? [00:05:06] Speaker 00: The Medicaid benefits, I mean, I assume that they want a prompt decision and they want relevant questions in order to facilitate something that will benefit them other than just better process. [00:05:24] Speaker 00: They can't get Medicaid benefits to pay for nursing home. [00:05:28] Speaker 00: They're not in a nursing home. [00:05:29] Speaker 00: They're deceased. [00:05:30] Speaker 05: Well, under 1396 AA 34, it does allow for the retroactive payment of benefits, even to an estate. [00:05:39] Speaker 00: Yeah. [00:05:39] Speaker 00: And that's why I was asking about perspective injunctive relief. [00:05:42] Speaker 05: Okay. [00:05:42] Speaker 05: So what we are asking for, the appellants are the estates and what the estates are asking for, [00:05:48] Speaker 05: is that the applications be processed timely under the correct criteria. [00:05:51] Speaker 05: The estates believe that if that happens, that there will be an approval for benefits. [00:05:57] Speaker 05: The estates not asking the court to order that the state certify and require the state to pay those benefits, that's what PECA is about. [00:06:06] Speaker 05: That's what PECA says. [00:06:10] Speaker 05: PECA was all about, the only claim in PECA was a claim for certification for the retroactive payment benefits. [00:06:18] Speaker 00: So if we grant perspective injunctive relief, you get better process, and so ideally you get retroactive benefits, but that is clearly barred by the 11th Amendment. [00:06:32] Speaker 00: Ex parte Young involves an action against an individual officer in his or her official capacity for perspective injunctive relief. [00:06:41] Speaker 00: I don't know how Ex parte Young would get you past the bar under the 11th Amendment for retroactive monetary relief. [00:06:52] Speaker 00: That seems clearly barred under the 11th Amendment. [00:06:55] Speaker 00: Because what? [00:06:55] Speaker 05: The court is not ordering it. [00:06:57] Speaker 00: I see. [00:06:57] Speaker 05: The court cannot order that. [00:06:59] Speaker 05: And we have to believe, if the court requires the state to process those applications correctly, then the state's going to do what they should do. [00:07:06] Speaker 05: And then they would find eligibility. [00:07:08] Speaker 05: We don't know that. [00:07:09] Speaker 05: This case is not about eligibility. [00:07:10] Speaker 00: Okay, so let's say they find eligibility. [00:07:12] Speaker 00: How can you ultimately get benefits in light of this [00:07:20] Speaker 00: dual bar between the 11th Amendment on retroactive monetary relief and the mootness of prospective injunctive relief? [00:07:29] Speaker 05: Well, the 11th Amendment bars and the court from acting to do that. [00:07:35] Speaker 00: Yeah. [00:07:36] Speaker 05: It doesn't bar the state from doing it. [00:07:38] Speaker 00: Oh, I see. [00:07:38] Speaker 05: Okay. [00:07:39] Speaker 05: We believe in good faith that the state will do what they're supposed to if they're asking the right questions. [00:07:44] Speaker 05: But the bar in the 11th Amendment bars the court from making that order. [00:07:49] Speaker 05: That's what PECA was about. [00:07:52] Speaker 05: Now, as far as mootness, it is not moot. [00:07:54] Speaker 05: There is still, if the case is processed correctly and the [00:08:00] Speaker 05: The benefits are awarded, the estates are entitled to receive those benefits. [00:08:04] Speaker 05: So there's still an amount of controversy in this case that's still alive. [00:08:07] Speaker 04: What PECA addressed though was the notion of a continual injury. [00:08:13] Speaker 04: And there is no injury to an individual for what is at stake here, which is ultimately, you're talking about process, but it's process with the end game which you acknowledge of getting benefits. [00:08:25] Speaker 04: And so what is, there is not an individual that is suffering an ongoing injury of federal law. [00:08:35] Speaker 05: because PECA was awarding benefits. [00:08:37] Speaker 05: In this particular case, the ongoing injury is the estate, those applications that are sitting there that are not being processed timely or in their correct criteria is affecting the estates of those individuals. [00:08:49] Speaker 05: The appellants in this case are the estates of the individuals. [00:08:52] Speaker 05: So if the court orders [00:08:55] Speaker 05: that those applications be processed correctly. [00:08:58] Speaker 05: We believe the state will do that, award those benefits which then flow to the estate. [00:09:03] Speaker 04: I guess what I'm struggling with, and as I see what you're saying, and correct me if I'm wrong, which is [00:09:10] Speaker 04: Essentially, this case is not PECA because it's one distance removed from PECA. [00:09:15] Speaker 04: PECA was dealing with the actual award of benefits. [00:09:18] Speaker 04: In this case, you're talking about process. [00:09:20] Speaker 04: You didn't get the process you think you're due. [00:09:23] Speaker 04: In your view, if you were to receive relief as it relates to process, you would ultimately, the state would do the right thing and ultimately give you benefits. [00:09:32] Speaker 04: That is correct, Your Honor. [00:09:33] Speaker 04: Okay. [00:09:34] Speaker 04: Well, as it relates to that, the question still becomes, in order to have a finding of that process was incorrect or wrong, you have to have a violation of federal law, an ongoing violation of federal law, as it relates to somebody. [00:09:54] Speaker 04: I mean, there has to be, you know, you say there's a process violation, but who is in a position to claim injury [00:10:02] Speaker 04: by virtue of process. [00:10:03] Speaker 04: If you say the estate, I don't see how PECA would call for that. [00:10:09] Speaker 05: Well, it is the estates, but again, PECA is limited to the 13th and 11th Amendment bars the court from ordering that. [00:10:17] Speaker 05: It doesn't bar the state from granting that. [00:10:20] Speaker 04: No, I get that. [00:10:22] Speaker 04: But at least by your own admission, as I understand it, you're acknowledging that this is one step along the road to get benefits, right? [00:10:32] Speaker 04: That is correct. [00:10:33] Speaker ?: Okay. [00:10:33] Speaker 04: And on this particular step, though, you have to have some sort of perspective relief provided to you. [00:10:43] Speaker 04: Is that not true? [00:10:44] Speaker 04: That is correct. [00:10:44] Speaker 04: Okay. [00:10:45] Speaker 04: And on that perspective relief, that perspective relief, the underpinning of that has to be an ongoing violation of federal law. [00:10:56] Speaker 04: And that ongoing violation of federal law has to inflict a continual injury on somebody, right? [00:11:05] Speaker 04: Correct. [00:11:06] Speaker 04: Okay. [00:11:06] Speaker 04: Well, then the somebody in this instance, as you understand it, I think, and you correct me, it would be the estates, right? [00:11:17] Speaker 04: Correct. [00:11:18] Speaker ?: Okay. [00:11:19] Speaker 04: If PECA doesn't map onto this, then give me your best case that tells me why the estate is in this situation. [00:11:31] Speaker 04: Because the reality is, the statute, it speaks in terms of individuals. [00:11:38] Speaker 05: Okay. [00:11:39] Speaker 05: So the estate is out the money that should have been paid on the Medicaid benefits. [00:11:45] Speaker 05: That's the injury. [00:11:46] Speaker 05: And the federal law that's at issue is 1396 AA8, which requires that benefits for all eligible individuals be provided timely. [00:11:56] Speaker 05: Now, the implementing regulation that's at issue is in 42 CFR chapter, it's 435 9.07 E1. [00:12:05] Speaker 05: And the district court even recognized that implementing regulation. [00:12:09] Speaker 05: And the district court even recognized that the state doesn't have an absolute right to go ask anything they want to in processing the applications. [00:12:18] Speaker 05: So if the perspective relief is granted as to processing the applications correctly, it's our belief the state will do that, award the benefits which go to the state will do that, which will go to the estate. [00:12:33] Speaker 05: There's the ongoing claim. [00:12:34] Speaker 04: What's the authority, which is what I asked you, that would support this matter? [00:12:39] Speaker 04: Because if you're claiming PECA is inapplicate and distinguishable, then there must be something that you rely on that says that the estate actually, in this process, can be suffering a continual injury by virtue of violation of federal law. [00:12:54] Speaker 05: Okay, that's Title 42, USC 1396A, [00:12:58] Speaker 05: A34, which allows the state to recover Medicaid benefits for a deceased individual. [00:13:05] Speaker 05: It specifically says that in that paragraph. [00:13:07] Speaker 04: Well, that they would have been entitled to, the benefits would have been awarded. [00:13:11] Speaker 04: The state can get the benefits that have been awarded. [00:13:13] Speaker 04: Here, no benefits have been awarded. [00:13:15] Speaker 05: The state can even file an application to have the person deceased. [00:13:19] Speaker 04: To get benefits, right? [00:13:20] Speaker 04: Yes. [00:13:21] Speaker 05: Well, there have been no benefits awarded. [00:13:23] Speaker 05: That's the problem. [00:13:24] Speaker 05: Well, but they can file an application after the person's deceased to recover benefits under that paragraph. [00:13:30] Speaker 03: That should have been granted. [00:13:32] Speaker 05: That should have been granted. [00:13:33] Speaker 03: All right. [00:13:36] Speaker 03: So we're talking about the timeline where benefits would have been granted to these three deceased people who were alive when they applied for the benefits. [00:13:48] Speaker 03: Yes. [00:13:49] Speaker 03: And they should have been granted the benefits, and they wouldn't have been given money. [00:13:59] Speaker 05: I'm going to give you another minute because I'm going to deal with this right now as it relates to Ms. [00:14:12] Speaker 04: Eads as in your [00:14:16] Speaker 04: Reply brief, you say the issue of Ms. [00:14:18] Speaker 04: Eads' personal liability was never ruled on by the district court. [00:14:22] Speaker 04: Therefore, it was improper for appellants to raise this issue on appeal. [00:14:26] Speaker 04: And then you go on to cite cases like Pacific Frontier, where they did a remand. [00:14:30] Speaker 04: Well, you didn't ask for a remand in the reply brief. [00:14:34] Speaker 04: In your opening brief, you didn't make a fulsome argument regarding why you're entitled to relief as it relates to Ms. [00:14:39] Speaker 04: Eads. [00:14:40] Speaker 04: So I don't understand why Ms. [00:14:42] Speaker 04: Eads, you haven't waived that. [00:14:45] Speaker 04: waive the claim against Ms. [00:14:46] Speaker 04: Eades? [00:14:46] Speaker 04: Absolutely. [00:14:48] Speaker 04: Because the court entered judgment, whether it spoke about Ms. [00:14:52] Speaker 04: Eades or not, it entered a full judgment in favor of the defendants. [00:14:57] Speaker 04: And so if you were going to challenge something about what the court did, even the court's failure to speak about Ms. [00:15:04] Speaker 04: Eades, [00:15:05] Speaker 04: Now was the time. [00:15:07] Speaker 04: And the fact that you say it's not the proper time, it is exactly the proper time. [00:15:11] Speaker 04: So you haven't done that. [00:15:12] Speaker 04: And so I don't understand why Ms. [00:15:15] Speaker 04: Eads, any claim against her is not waived. [00:15:20] Speaker 05: Well, it wasn't ruled upon, but we addressed everything that the district court ruled upon. [00:15:25] Speaker 05: I was referring to the 11th Amendment. [00:15:26] Speaker 05: The 11th Amendment doesn't apply to an individual. [00:15:28] Speaker 04: My point was that whether the district court ruled upon it or not, it expressly did not say anything about Ms. [00:15:36] Speaker 04: Eads. [00:15:37] Speaker 04: It entered judgment. [00:15:38] Speaker 04: And when you address that in your reply brief, you cited cases in which [00:15:45] Speaker 04: in which we had ordered a remand. [00:15:49] Speaker 04: What I'm saying is you did not ask for a remand in the reply brief. [00:15:53] Speaker 04: So what ground is it for us to do anything? [00:15:58] Speaker 05: Please, go ahead. [00:15:59] Speaker 05: Your Honor, when judgment was entered, we contested the judgment that was entered. [00:16:03] Speaker 05: So if the judgment dealt with Ms. [00:16:05] Speaker 05: Ead's liability, [00:16:08] Speaker 05: We objected to that, to that order being entered that would dismiss that liability. [00:16:13] Speaker 04: You didn't say anything in there. [00:16:14] Speaker 04: You didn't make an argument in the opening brief, did you? [00:16:17] Speaker 04: Or did I miss it about Ms. [00:16:18] Speaker 04: E's liability? [00:16:19] Speaker 05: We made an argument to everything that the court addressed. [00:16:22] Speaker 05: All right. [00:16:23] Speaker 05: And so if those rulings dismissed her liability, we contested those. [00:16:27] Speaker 04: OK. [00:16:29] Speaker 04: As I said, I'll give you an additional minute in rebuttal, unless there are any questions from my colleagues. [00:16:36] Speaker 04: Thank you. [00:16:36] Speaker 04: All right. [00:16:37] Speaker 04: Thank you. [00:16:43] Speaker 02: Your Honor, may it please the court. [00:16:44] Speaker 02: My name is Daniel Card. [00:16:46] Speaker 02: I'm here on behalf of Deborah Shropshire in her official capacity and Susan Eads in her individual capacity. [00:16:55] Speaker 02: Your Honor, I'd like to begin with the mootness argument. [00:17:00] Speaker 02: The PECA court was directly on point. [00:17:05] Speaker 02: It's been decades of constitutional law. [00:17:08] Speaker 02: It's constitutionally moot if the [00:17:12] Speaker 02: The plaintiff is requesting prospective relief in an adjunction and the prospective relief is no longer viable. [00:17:23] Speaker 02: It's now impossible because the individual is dead. [00:17:26] Speaker 04: The PECA is not directly on point. [00:17:28] Speaker 04: I mean, we have a footnote four which says that we will not ruminate or opine on whether the outcome would have been different if Ms. [00:17:36] Speaker 04: PECA's estate was the plaintiff appellant. [00:17:40] Speaker 04: Well, we have a state here, so you have to explain to me why we should nevertheless apply PECA. [00:17:48] Speaker 02: Because the individual to whom the Medicaid regulations and statutes are applicable [00:17:55] Speaker 02: is no longer living. [00:17:58] Speaker 02: So she can no longer be given, she no longer has to go to a nursing home because she doesn't, she's not alive anymore. [00:18:05] Speaker 02: Therefore there's no benefits to pay. [00:18:07] Speaker 03: What about retroactive benefits if they should have been granted? [00:18:12] Speaker 02: I would like to address that because I don't believe that was addressed in the opening brief and I would like, if the court is going to consider that statute, I believe you said 1396 AA, [00:18:22] Speaker 02: I would like a chance for the parties to brief that specific issue, if the court is so inclined, about retroactive benefits and how they interact with mootness and whatnot, because that wasn't fully briefed. [00:18:35] Speaker 02: I don't believe it was brought up in the opening brief. [00:18:38] Speaker 02: I certainly didn't respond to it. [00:18:40] Speaker 04: And to be clear, I thought I heard opposing counsel say that the state had a legal authorization [00:18:48] Speaker 04: to seek benefits that were essentially denied through timeliness or denied through some sort of improper process, there was a provision that would allow them to do that. [00:19:01] Speaker 04: Do you disagree with that? [00:19:03] Speaker 04: A provision in the... In the statute? [00:19:07] Speaker 02: I don't know the answer to that because it wasn't briefed, Your Honor. [00:19:13] Speaker 04: That is not a position they've taken before now, is what you're saying? [00:19:15] Speaker 02: That is correct. [00:19:16] Speaker 04: Okay. [00:19:24] Speaker 02: But substantively, Your Honor, if I may move on, the elements of an informal loan for it to be bona fide are a few things. [00:19:37] Speaker 02: One, there has to be a loan between individuals who are not in the business of lending or providing money or providing credit. [00:19:44] Speaker 02: And the repayment plan must be feasible, meaning the borrower has to be able to pay it back. [00:19:51] Speaker 02: And DHS has to know, can that person pay it back? [00:19:55] Speaker 02: In these two instances, for instance, the borrower in Ms. [00:19:59] Speaker 02: Houston's case had to pay about $90,000 a year back. [00:20:03] Speaker 02: In the Lamley case, it was about $40,000 a year back. [00:20:08] Speaker 02: That's a pretty substantial amount for any individual to pay back per year for a loan. [00:20:15] Speaker 02: Thus, it would make sense then [00:20:17] Speaker 02: for DHS and its employees to inquire, can this borrower in fact make these payments? [00:20:25] Speaker 02: As the court is aware, a separate DHS non-party employee asked five questions. [00:20:34] Speaker 02: The plaintiffs refused to answer them. [00:20:36] Speaker 02: Ms. [00:20:36] Speaker 02: Eads then steps in and provides authorization, excuse me, legal citations including the Rose case, including the statutes, including the regulations. [00:20:47] Speaker 02: about why they're asking these specific questions. [00:20:50] Speaker 02: For instance, were they in the business of lending money? [00:20:54] Speaker 02: That's the first element of whether it's an informal loan or not. [00:20:59] Speaker 02: Whether collateral was given? [00:21:01] Speaker 02: Well, if collateral was given, the lender can sell it, get their money back, and perhaps the borrower is more likely to pay him back. [00:21:09] Speaker 02: They've got a collateral on the line. [00:21:12] Speaker 02: Every one of these have to do exactly with whether [00:21:16] Speaker 02: the borrower can pay back this $90,000 a year or $40,000 a year. [00:21:23] Speaker 02: And the plaintiffs acknowledged explicitly that they didn't provide any information that would let DHS know whether it was feasible for the borrows to pay it back. [00:21:36] Speaker 02: And I know that because it's in the emails. [00:21:38] Speaker 02: It said the only possible element not answered by the note itself is the feasibility of repayment plan. [00:21:45] Speaker 02: That's their words. [00:21:48] Speaker 02: that is followed up by threats of lawsuit, not anything but threats of lawsuit. [00:21:53] Speaker 02: There's no, but if you look at this document, or let me help you, or we would like to get approved for benefits, so let me tell you why it's feasible for these repayments to be done. [00:22:02] Speaker 02: None of that happened. [00:22:04] Speaker 04: What do we do with Ms. [00:22:05] Speaker 04: Eads in this case? [00:22:07] Speaker 04: I'm struggling to figure out, is she in this case? [00:22:10] Speaker 04: What is the implication of the posture of the briefing in this case as it relates to Ms. [00:22:17] Speaker 04: Eads? [00:22:18] Speaker 02: I briefed it under the impression that she was still in the case and they were still trying to go after her for money damages under 1983. [00:22:27] Speaker 02: briefed it and understood it, though I think I even put it in my brief that the jurisdictional statement was confusing to me because part of it they end at, we want injunctive relief. [00:22:37] Speaker 02: And then toward the end they said, well, Ms. [00:22:41] Speaker 02: Eads, 11th Amendment doesn't apply to Ms. [00:22:43] Speaker 02: Eads. [00:22:44] Speaker 02: So it was confusing to me. [00:22:45] Speaker 02: So what I did is I just did the shotgun approach and briefed it as if Ms. [00:22:49] Speaker 02: Eads was still in the case. [00:22:51] Speaker 02: That's it. [00:22:52] Speaker 02: Well, go ahead, please. [00:22:55] Speaker 02: not at the district court level, and not at this level, has the plaintiff provided one single case that would deny Ms. [00:23:07] Speaker 02: Ead's right to absolute immunity, or qualified immunity for that matter. [00:23:11] Speaker 04: What do we do with the fact that the district court did not address Ms. [00:23:15] Speaker 04: Eads' liability? [00:23:16] Speaker 04: What is the implication of that? [00:23:18] Speaker 04: And I thought it was your contention that they had abandoned any claim against Ms. [00:23:23] Speaker 04: Eads. [00:23:23] Speaker 04: I thought there was some language in the reply group to that event. [00:23:26] Speaker 02: I believe what was written was, it's not clear if they abandoned it, but assuming they didn't, here you go. [00:23:32] Speaker 02: Here's our argument against it, because I wanted to make sure it was caught. [00:23:36] Speaker 04: Okay. [00:23:36] Speaker 04: Well, what do we do with the fact that the district court did not address Ms. [00:23:40] Speaker 04: East? [00:23:41] Speaker 04: Is that a matter of legal significance? [00:23:44] Speaker 02: Well, not for her liability, because she raised absolute immunity, she raised qualified immunity, and the district court, whether she said her name or not, [00:23:55] Speaker 02: The district court went through the analysis and what Ms. [00:23:58] Speaker 02: Eads was alleged to have done and said there was no right violated by DHS. [00:24:04] Speaker 02: And this was through Ms. [00:24:06] Speaker 02: Eads alleged conduct. [00:24:07] Speaker 02: Therefore, there was no right that Ms. [00:24:10] Speaker 02: Eads violated. [00:24:12] Speaker 02: And as the Supreme Court told us in Pearson versus Callahan, [00:24:15] Speaker 02: The district court doesn't have to get to, it can do either prong of the qualified immunity analysis in either way it sees fit. [00:24:24] Speaker 02: A lot of times they'll go straight to whether it was clearly established law, this time the district court went to, was there a right actually violated? [00:24:31] Speaker 02: And she definitively determined there was not a right actually violated. [00:24:35] Speaker 04: They're seeking, as I understand it, under 1983, individual liability as it relates to misdeeds, right? [00:24:44] Speaker 02: That's correct. [00:24:45] Speaker 04: OK. [00:24:45] Speaker 02: For asking questions over email. [00:24:50] Speaker 02: All right. [00:24:51] Speaker 02: For absolute immunity, they cite Mitchell versus Forsyth, which only stood for the proposition [00:25:01] Speaker 02: that just because you're an attorney general in the United States doesn't mean you're absolutely immune. [00:25:06] Speaker 02: What the court should look at is the function of the government attorney and what he or she is doing at the time of the alleged wrongdoing. [00:25:15] Speaker 02: It's clear what Ms. [00:25:16] Speaker 02: Eads was doing. [00:25:17] Speaker 02: She is an attorney for DHS. [00:25:20] Speaker 02: DHS is her only client. [00:25:23] Speaker 02: DHS was getting pushback from a lawyer [00:25:26] Speaker 02: for not answering feasibility questions which are really pretty straightforward and you would think would be readily available just to hand it over. [00:25:33] Speaker 02: They didn't do that. [00:25:34] Speaker 02: So Mrs. Eads stepped in and she asked the questions and cited authority. [00:25:39] Speaker 03: They take the position that in their long request for Medicaid the answers are in there. [00:25:46] Speaker 03: I'm sorry? [00:25:46] Speaker 03: They take the position that in their long [00:25:51] Speaker 03: multiple page application for Medicaid. [00:25:54] Speaker 03: The answers to these questions are in there. [00:25:56] Speaker 02: You can check that. [00:25:59] Speaker 02: They're not. [00:26:00] Speaker 02: It's just not true. [00:26:02] Speaker 02: There's nothing in there about feasibility. [00:26:04] Speaker 02: There's nothing in there about a lot of it's transferring mineral rights and mineral deeds and bank statements, but it has nothing to do with whether the borrower can actually repay this loan. [00:26:18] Speaker 00: Even if it's not true, [00:26:20] Speaker 00: Since we're here on a 12b6, can we affirm the dismissal just based on us saying, well, the plaintiff's allegations are just not true? [00:26:30] Speaker 00: Isn't that contrary to our standard? [00:26:33] Speaker 02: They didn't allege that they met feasibility in the complaint. [00:26:36] Speaker 02: So the answer is no, because that's not how it was planned. [00:26:40] Speaker 02: They said, we violated the 45-day rule, and that they believe they have a right to Medicaid. [00:26:48] Speaker 02: But they never said, [00:26:50] Speaker 02: Here is the documentation that we provided that made it possible for Jason Lamley to pay back this $90,000 loan. [00:27:00] Speaker 02: That was never in the complaint. [00:27:01] Speaker 02: It wasn't in the documents. [00:27:03] Speaker 02: And it was never provided to us. [00:27:05] Speaker 02: To this day, it was not provided to us. [00:27:07] Speaker 04: Let me circle back to where you began regarding PECA. [00:27:11] Speaker 04: Let's assume for the moment that there's enough there that we find PECA persuasive and that at least it would seem to me that that deals with the prospective claims. [00:27:23] Speaker 04: What does that do with Ms. [00:27:25] Speaker 04: E, since we're talking about her being in this case, what does that do with the claims against her? [00:27:30] Speaker 04: which are not seeking prospective relief. [00:27:33] Speaker 04: In other words, the logic of PECA was you're seeking prospective claims, you have to have an ongoing injury, you have dead folks, and you can't have an ongoing injury, therefore we have no jurisdiction. [00:27:45] Speaker 04: But what does that do with the claims against Ms. [00:27:48] Speaker 04: Eads where she's not seeking, they're not seeking prospective relief, they're seeking damages. [00:27:53] Speaker 04: What happens then? [00:27:54] Speaker 04: Let's assume that scenario. [00:27:56] Speaker 04: What would happen to those claims? [00:27:57] Speaker 02: I think PECA is inopposite to Ms. [00:27:59] Speaker 02: Eads. [00:28:00] Speaker 02: Okay. [00:28:00] Speaker 02: So PECA is only going to apply to DHS or Shropshire in her official capacity. [00:28:05] Speaker 04: So we would still have to deal with, on the merits, whether their claim has any, whether their challenge, appellate challenge, has any viability as it relates to Ms. [00:28:14] Speaker 04: Eads? [00:28:15] Speaker 04: That's correct. [00:28:15] Speaker 02: Okay. [00:28:20] Speaker 02: Back to the functionality, it was clear what Ms. [00:28:21] Speaker 02: Eads was doing. [00:28:22] Speaker 02: She was investigating the case on behalf of the government agency in preparation for [00:28:27] Speaker 02: administrative hearings, which are allowed if they're denied Medicaid. [00:28:30] Speaker 02: Federal lawsuits, which clearly happen if Medicaid benefits are denied. [00:28:36] Speaker 02: This is the basis for the functionality test, which is absolute immunity, case after case. [00:28:42] Speaker 02: But even if she weren't absolutely immune, it's clear she has qualified immunity. [00:28:49] Speaker 02: What is the claim here? [00:28:50] Speaker 02: That a lawyer for a government agency wrote an email and asked questions [00:28:57] Speaker 02: related to a Medicaid application. [00:29:00] Speaker 02: That's it. [00:29:01] Speaker 02: That is the extent of Ms. [00:29:03] Speaker 02: Eade's wrongdoing, according to plaintiff, is wrote an email and asked questions. [00:29:09] Speaker 02: They never alleged that she actually denied them Medicaid benefits, nor could they, because she doesn't have the power to do that. [00:29:15] Speaker 02: She's their lawyer. [00:29:17] Speaker 02: And by the way, how is she supposed to defend the case if it goes forward? [00:29:22] Speaker 02: Is she to be asked, how did you advise your client on these Medicaid applications? [00:29:27] Speaker 02: Surely not. [00:29:29] Speaker 02: DHS has a right to attorney-client privilege. [00:29:34] Speaker 02: And if we go to qualified immunity, as I said, the district court determined that there was no right violated, so she didn't need to go to whether it was clearly established. [00:29:45] Speaker 02: In the district court, in this court, I've yet to see a case from the plaintiff that clearly distinguishes a government agency can't ask questions over email. [00:29:56] Speaker 02: I've not seen that. [00:29:57] Speaker 02: I haven't seen that these specific questions are out of balance. [00:30:00] Speaker 00: Well, let me play devil's advocate. [00:30:02] Speaker 00: She asked those questions after the 45-day period expired, did she not? [00:30:07] Speaker 02: She did. [00:30:09] Speaker 00: Is that a problem? [00:30:11] Speaker 02: It's not. [00:30:12] Speaker 00: Why not? [00:30:14] Speaker 02: Especially for EADS, because she's not the one that denied the benefits. [00:30:17] Speaker 00: Okay. [00:30:18] Speaker 02: She's asking questions, but to answer your question, there's a lot going on between those 45 days and those questions. [00:30:24] Speaker 02: For instance, there was a [00:30:28] Speaker 02: In Lamley, the mineral interest value between DHS and the plaintiffs was finally agreed on on December 20th, 2021, which is within the 45 days. [00:30:39] Speaker 02: In other words, it's back and forth going on over the place. [00:30:41] Speaker 02: It just happens to be those five questions that were at issue, that was after the 45 days. [00:30:46] Speaker 02: But it wasn't radio silence. [00:30:47] Speaker 02: We weren't sitting on our hands just waiting for something to happen. [00:30:52] Speaker 02: In Houston, the promissory note was not received. [00:30:55] Speaker 02: They applied on 1-27-22. [00:30:58] Speaker 02: They said it was attached to the exhibit as a prom or so. [00:31:01] Speaker 02: Well, it wasn't attached. [00:31:02] Speaker 02: So we didn't get the promissory note until March 30th, 2022. [00:31:06] Speaker 02: So the point is we weren't sitting on our hands. [00:31:08] Speaker 02: Things are happening behind the scenes, but those questions may have been after the 45 days. [00:31:13] Speaker 02: That doesn't mean nothing was happening. [00:31:14] Speaker 02: It doesn't mean DHS wasn't preparing the application. [00:31:21] Speaker 02: Susan Eads is entitled to absolute immunity. [00:31:24] Speaker 02: She's certainly entitled to qualified immunity. [00:31:26] Speaker 02: She shouldn't have been sued in the first place. [00:31:29] Speaker 02: It is my wholehearted belief this was retribution against a lawyer they disagree with. [00:31:33] Speaker 02: She shouldn't have been here. [00:31:34] Speaker 02: I request respectfully an affirmation. [00:31:43] Speaker 04: Thank you. [00:31:43] Speaker 04: If you would add, yes, that works. [00:31:47] Speaker 05: First, I would say that [00:31:50] Speaker 05: I'll pick up with Miss Eads. [00:31:54] Speaker 05: I'm sorry, I'm at 318. [00:31:55] Speaker 05: I mean. [00:31:58] Speaker 01: Now you get 15 minutes. [00:32:01] Speaker 01: Yeah. [00:32:01] Speaker 01: She's got 13 right there. [00:32:02] Speaker 05: That's fine with me, but the red button's on. [00:32:05] Speaker 05: Now I'm at 16. [00:32:08] Speaker 05: OK. [00:32:08] Speaker 05: All right. [00:32:09] Speaker 05: Miss Eads, I don't take suing any other lawyer lightly. [00:32:12] Speaker 05: She was warned multiple times. [00:32:15] Speaker 05: The advantage I have over counsel, as I was involved in this case all the way through, [00:32:19] Speaker 05: Let's talk about the two applicants. [00:32:22] Speaker 05: Miss Lamley was 78 years old. [00:32:24] Speaker 05: She filed an application that was 994 pages long. [00:32:27] Speaker 05: Miss Houston, 627 pages, and she was 98. [00:32:30] Speaker 05: In the applications, they were told that these ladies were incapable of caring for themselves. [00:32:35] Speaker 05: They were in a nursing home. [00:32:37] Speaker 05: The applicants gave five years' worth of tax returns. [00:32:40] Speaker 05: They gave full financial disclosures, and I get a question, are they in the business of loaning money? [00:32:45] Speaker 04: What is the clearly established law that would support your 1983 claim against Ms. [00:32:50] Speaker 04: Eads? [00:32:51] Speaker 04: 1396 A.A. [00:32:53] Speaker 04: No, no, no, you're saying the statute itself is your clearly established law? [00:32:57] Speaker 04: We have no 10th Circuit case? [00:32:59] Speaker 05: No, I cite the cases in my brief regarding her absolute and qualified immunity. [00:33:03] Speaker 05: She does not have absolute immunity, only the judiciary does. [00:33:08] Speaker 04: And I was speaking as it relates to qualified immunity, and if you know what is your best case, they would say that she committed, violated clearly established federal law. [00:33:21] Speaker 04: I don't remember off the top of my head, Your Honor. [00:33:23] Speaker 04: Okay, that's fine. [00:33:24] Speaker 04: I'll go back to you. [00:33:25] Speaker 05: One of the other questions that was asked, my personal favorite, [00:33:29] Speaker 05: Now remember, they're trying to determine feasibility of the repayment. [00:33:32] Speaker 05: So the question is, what did the lender do with the note? [00:33:37] Speaker 05: What does that have to do if the borrower can repay? [00:33:40] Speaker 05: Nothing is the answer. [00:33:42] Speaker 05: Another question is, what did the borrower do with the assets? [00:33:46] Speaker 05: All these questions are simply a matter of delay, delay, delay. [00:33:50] Speaker 05: See, they gained PECA. [00:33:51] Speaker 05: That's what's happening here. [00:33:53] Speaker 05: They're weaponizing PECA. [00:33:54] Speaker 05: The longer they can delay, the longer they can put it off. [00:33:58] Speaker 05: Then they use PECA as an excuse not to pay benefits. [00:34:01] Speaker 05: We've heard it today, have we not? [00:34:03] Speaker 05: We've seen it in the briefs. [00:34:05] Speaker 05: That's what's going on here. [00:34:06] Speaker 05: That's the real battle. [00:34:08] Speaker 05: If we can delay, delay, delay. [00:34:09] Speaker 05: And I will tell you, as handling this case from beginning to end, there was radio silence. [00:34:15] Speaker 05: The 45 days came and gone. [00:34:18] Speaker 05: When we filed the application, we followed up. [00:34:20] Speaker 05: Had you guys got it? [00:34:21] Speaker 05: Do you need anything else? [00:34:22] Speaker 05: I mean, I think 1,000 pages would probably cover it. [00:34:25] Speaker 05: If they would have read the application, they would have known that the borrowers, the assets that were transferred under the note, generated income that was two times the payment under the note. [00:34:36] Speaker 03: What would they know that the person who got it could pay that? [00:34:41] Speaker 05: Could they pay that? [00:34:42] Speaker 05: Yeah. [00:34:42] Speaker 05: Well, that's the problem, your honor. [00:34:44] Speaker 05: They never asked those questions. [00:34:45] Speaker 05: The question is, what's the under rose? [00:34:47] Speaker 05: What was the amount of the note? [00:34:48] Speaker 05: What's the borrower's living expenses? [00:34:50] Speaker 05: And what's the borrower's income? [00:34:52] Speaker 05: We would, we're more than happy. [00:34:53] Speaker 05: We told them those were the under, we decided roads. [00:34:56] Speaker 05: Those are the questions. [00:34:58] Speaker 05: We're happy to answer those questions. [00:35:00] Speaker 05: Council make it sounds like we're obstinate. [00:35:01] Speaker 05: We weren't. [00:35:02] Speaker 05: We were just trying to get the right questions. [00:35:05] Speaker 05: Trying to get what? [00:35:06] Speaker 05: The correct questions. [00:35:07] Speaker 05: under Rose, those are the correct questions. [00:35:10] Speaker 05: It's not all these others that have nothing to do with repayment. [00:35:15] Speaker 04: And who gets to make the determination whether they have to do with repayment or not? [00:35:19] Speaker 05: Well, Rose did, Your Honor. [00:35:21] Speaker 05: This court did. [00:35:22] Speaker 05: This court addressed feasibility in Rose v. Brown. [00:35:26] Speaker 05: That was a 2021 case. [00:35:27] Speaker 04: It's in the briefs. [00:35:28] Speaker 05: Okay. [00:35:29] Speaker 05: They talked about repayment feasibility. [00:35:31] Speaker 05: We're following the direction of the 10th Circuit. [00:35:33] Speaker 05: The 10th Circuit in signing the POM says those are the only three factors. [00:35:36] Speaker 05: The amount of the loan, the income of the borrower, and the expenses. [00:35:42] Speaker 05: We beg to answer those questions, but they never would let us. [00:35:48] Speaker 04: All right, counsel, thank you for your arguments. [00:35:50] Speaker 04: The case is submitted.