[00:00:00] Speaker 04: Phase number 23-5152. [00:00:03] Speaker 04: Carol A. Lewis and Douglas B. Sargent, on behalf of themselves and all others similarly situated, at balance, versus Xavier Becerra, in his capacity as Secretary of the United States Department of Health and Human Services. [00:00:16] Speaker 04: Mr. Pistorino, for the balance, Mr. Koppel, for the epally. [00:00:21] Speaker 02: Good morning, and may it please the court. [00:00:24] Speaker 02: There are at least two just basic fundamental errors in the district court's decision in this case. [00:00:30] Speaker 02: First, the district court actually decided the merits of the case as a condition of class certification, when at the same time, the Supreme Court has said at least twice, you don't do that. [00:00:41] Speaker 02: So just from the get-go, you don't decide the merits. [00:00:44] Speaker 02: Second, and again, [00:00:48] Speaker 02: Amgen, the Supreme Court says, an evaluation of the probable outcome on the merits is not properly part of the class certification decision. [00:00:54] Speaker 02: And there, the Supreme Court's even just citing the comments to Rule 23. [00:00:59] Speaker 02: Second, continuing on that, Judge Wall, the district court, and the secretaries [00:01:06] Speaker 02: approach of deciding whether claims are viable, just whether they're viable, is barred by at least Eisen, Amgen, this court's decisions in Venoman, and also we would contend Malik and the rule itself. [00:01:19] Speaker 00: Moreover, again, it would- Before you get too deeply into the merits, can I ask you about standing? [00:01:28] Speaker 00: Yes. [00:01:28] Speaker 00: Your clients won summary judgment and you're peeling. [00:01:35] Speaker 00: That's an odd procedural posture. [00:01:40] Speaker 02: I might characterize a little bit differently. [00:01:42] Speaker 02: I'd say our clients lost summary judgment. [00:01:44] Speaker 02: The secretary moved for summary judgment. [00:01:46] Speaker 00: It's got relief on the merits. [00:01:50] Speaker 00: So the only question is. [00:01:54] Speaker 00: Why can you appeal from an order? [00:01:57] Speaker 00: That gives your clients all the relief. [00:02:01] Speaker 00: on the merits you want. [00:02:03] Speaker 00: The most likely explanation is Roper says, well, if you win, if you appeal the denial of class certification and you win, then maybe there will be some mechanism for spreading costs, getting costs from absent class members, right? [00:02:25] Speaker 02: I think both Ropers and U.S. [00:02:27] Speaker 02: Parole Commission both say that there's an independent interest in being a representative of a class action. [00:02:33] Speaker 00: Are you relying on that theory? [00:02:37] Speaker 00: Suppose I disagree with you about that. [00:02:39] Speaker 00: Suppose I think your clients need a particularized interest as individuals. [00:02:46] Speaker 02: I think, at least as I understand both Ropers and US Pro Commission, I think that would be contrary to both of those. [00:02:52] Speaker 02: And again, I think Roper and US Pro Commission indicate that one reason that we have Rule 23F for discretionary interlocutory appeal is because the right to appeal [00:03:05] Speaker 02: the right to appeal is part of the premise of the whole thing. [00:03:09] Speaker 02: So again, your honor's question about, aren't we in the same position? [00:03:12] Speaker 02: We've got everything we want. [00:03:14] Speaker 02: If I may, I'd just say, I think that was exactly the situation of the plaintiffs in Roper. [00:03:18] Speaker 00: In Roper, the court said they had a traditional individualized interest. [00:03:27] Speaker 00: Because if they reversed the denial of class certification, [00:03:32] Speaker 00: they might recover costs from absent class members that they would otherwise have to bear. [00:03:39] Speaker 00: That was the theory of Roper. [00:03:42] Speaker 02: If I understood it correctly, actually, I think in Roper, the defendant tendered to the plaintiffs everything they asked for. [00:03:48] Speaker 02: The plaintiffs refused, and the court imposed it, just like here. [00:03:52] Speaker 02: Just like here. [00:03:52] Speaker 02: The court imposed it. [00:03:53] Speaker 02: And what the Supreme Court, I think, said is, you can't do that. [00:03:56] Speaker 02: You can't impose exactly what they want on them as part of that and sent it back. [00:04:00] Speaker 02: So again, if you're going to have [00:04:02] Speaker 00: Is there is there any mechanism under which your clients in this case individually will be better off if you win the appeal on the class certification denial? [00:04:21] Speaker 00: I mean, I can think of two possibilities. [00:04:24] Speaker 00: One is you get costs from absent class members, which I think was the rationale of Roper. [00:04:34] Speaker 00: The other, which you haven't really articulated, but is lurking in the record, is that you might get a higher EJA award of fees. [00:04:46] Speaker 02: So, again, I think, and actually, I think this might be in the U.S. [00:04:49] Speaker 02: Pearl Commission, right? [00:04:50] Speaker 02: Again, what the Supreme Court came back to is the issue of why would we let people appeal the denial of class certification, even if judgment is entered in their favor? [00:04:59] Speaker 02: I think that went to exactly the issue you're raising. [00:05:01] Speaker 02: And they said, yes, we will, because one, they have the separate interest in representing the class members, right? [00:05:06] Speaker 02: And as part of that, they identified, again, one idea of the Rule 23, the whole Rule 23 process is spreading the cost, spreading the cost of getting attorneys, spreading the cost of getting attorneys. [00:05:17] Speaker 02: So again, to come back to they would have an interest, again, in vindicating their interest as identified by the Supreme Court in being class representatives, and also an interest, again, in even being able to start the case. [00:05:29] Speaker 05: Mr. Pistorino though, have you argued that there is a cost spreading rationale for maintaining this appeal? [00:05:36] Speaker 05: Well, in our briefs- Is that just something we should assume after Roper, that that's always a reason for maintaining standing? [00:05:45] Speaker 05: Yeah, so- In class action context? [00:05:47] Speaker 02: My short answer would be yes. [00:05:49] Speaker 02: I think after Roper, and I actually think it's the U.S. [00:05:51] Speaker 02: Parole Commission, right? [00:05:52] Speaker 01: The short answer to Judge Rao's first question, no. [00:05:55] Speaker 01: What was this? [00:05:56] Speaker 01: Was this in your brief? [00:05:58] Speaker 02: So no, I actually think our brief did cite to these. [00:06:01] Speaker 01: Where in the brief? [00:06:02] Speaker 02: I'll get you that. [00:06:03] Speaker 02: I'm on reply. [00:06:03] Speaker 02: I'll get you the particular page numbers. [00:06:04] Speaker 02: But I know, for example, I did cite this exact thing about, I think it's from US parole commission, talking about. [00:06:10] Speaker 01: About spreading litigation costs. [00:06:11] Speaker 02: Yes. [00:06:12] Speaker 02: Yes. [00:06:12] Speaker 02: And again, if you just think about it, practically, if you were wanting to start a class action and you told the potential attorneys, again, the idea is to get potential attorneys, you said, well, if my individual guy wins, [00:06:24] Speaker 02: The class representatives wins. [00:06:26] Speaker 02: The plaintiff's able to, quote unquote, buy them off. [00:06:29] Speaker 02: The case will be completely over. [00:06:30] Speaker 02: You wouldn't be able to appeal. [00:06:32] Speaker 02: You're contending that the simply enter of judgment over their objection in favor of the name representatives deprives them of standing. [00:06:39] Speaker 02: Again, it would just be inconsistent with Roper and deposit guarantee. [00:06:44] Speaker 02: And no attorney would take that case, right? [00:06:46] Speaker 02: Oh, I'm going to get whatever you could get for an individual person versus a class action overall. [00:06:51] Speaker 05: So you're relying on the Roper rationale, not on the [00:06:54] Speaker 05: garrity rationale or the U.S. [00:06:56] Speaker 00: parole commission rationale as I at least I understand that I think they they're they're both because I recall your your broader rationale is none of this matters because the putative class rep has this private attorney general interest in representing the class which is distinct from the merits right correct that's a broad reading of Roper it [00:07:20] Speaker 00: might be supported by Garrity, we will deal with that as a legal argument. [00:07:25] Speaker 00: Suppose I disagree with that reading of the cases and think narrower reading of Roper, which is you need to show that the individual putative class reps, the named plaintiffs, have to show an individualized concrete injury. [00:07:44] Speaker 00: Do you have an argument on that point? [00:07:47] Speaker 02: I guess maybe my short answer would be no. [00:07:49] Speaker 02: So if the cases from the Supreme Court, if Roper and U.S. [00:07:53] Speaker 02: parole commission do not stand for the proposition that even if a judgment is entered in favor of the named plaintiffs, they lose the right to appeal because they don't have standing. [00:08:03] Speaker 02: Judgment entered in their favor. [00:08:04] Speaker 02: They lose the right to appeal because they no longer have standing. [00:08:07] Speaker 02: That will be a completely different role. [00:08:08] Speaker 02: That's not what the Supreme Court said in those cases. [00:08:11] Speaker 02: Individualized interests, the whole idea of Rule 23. [00:08:16] Speaker 02: Let's get all the cases together. [00:08:17] Speaker 02: Let's have the prospect of having a class counsel by litigating cases together when the individual litigation of each case individually would be uneconomic, as it would be here. [00:08:31] Speaker 02: Again, the average claim here, we say, is about $4,000. [00:08:34] Speaker 02: No one's going to litigate the case at this point for five and a half years. [00:08:38] Speaker 02: No attorney is going to litigate a case for five and a half years through appeal for $4,000. [00:08:42] Speaker 02: The only way you get a case, again, [00:08:44] Speaker 02: you combine them all together and as part of being able to start that whole process you've got to be able to appeal denials of class certification or the rule 20 rule 23 f discretionary appeals as we say in our do say in our papers right it would transform that into a case dispositive motion right wouldn't be despite it wouldn't be a discretionary we consider it's disfavored approach [00:09:05] Speaker 02: We only consider in special circumstances, right? [00:09:08] Speaker 02: If you were to lose the class certification at that stage, when you know your underlying case has merits, then the case will be over. [00:09:13] Speaker 02: You'd have to appeal to win it. [00:09:15] Speaker 02: And again, just contrary to Roper, contrary to US Parole Commission, contrary to discretionary nature of Rule 23. [00:09:21] Speaker 01: When you talk about interest, interest, interest, do you mean the attorney's interests or the plaintiff's interests? [00:09:30] Speaker 02: The plaintiff's interest in being a class representative, again, the Supreme Court identified it as a separate interest distinct from their interest in winning on the underlying merits. [00:09:38] Speaker 02: And again, as part of their interest in being a class representative and being able to bring the case, again, what the Supreme Court said is actually the attorney's fees is a significant component of that. [00:09:49] Speaker 02: How could Ms. [00:09:50] Speaker 02: Lewis? [00:09:51] Speaker 02: one of the representatives, how could she get an attorney to take her case on prepared to litigate it again for five and a half years when the underlying claim I think in this Lewis's case is like what $1500 something like that. [00:10:03] Speaker 02: She couldn't afford to fund the litigation. [00:10:06] Speaker 02: No attorney would take it if the potential reward at the end of the day is $1500 from this Lewis. [00:10:12] Speaker 02: So again, I think it would just be totally contrary to, again, what the Supreme Court has said in these cases. [00:10:18] Speaker 02: They want to transform Rule 23F to having a circuit court accept the discretionary, disfavored Rule 23F motion into a dispositive motion on the case. [00:10:30] Speaker 02: Again, every case that would be denied, again, you'd have to be a completely different world than what the Supreme Court said. [00:10:35] Speaker 02: in those cases is because of the ability to appeal and classification decision after judgment in favor of the of the name representatives. [00:10:46] Speaker 02: That's why they said, well, we're going to happy to have rule 23 at the discretionary. [00:10:50] Speaker 00: In a case like this, it's an APA like action. [00:10:56] Speaker 00: It's under the Medicare statute, but [00:10:59] Speaker 00: The award, as I understand it, is not an award of money damages. [00:11:05] Speaker 00: It's setting aside agency action. [00:11:08] Speaker 00: How does council get funded? [00:11:13] Speaker 00: I assume it's through some sort of contingency fee, and you hope you get an EJO award. [00:11:22] Speaker 00: So in terms of the actual component here, I'm not asking you about your private in general, because what I'm struggling with is it just. [00:11:31] Speaker 00: In a damages class. [00:11:34] Speaker 00: I get this where it's Roper says what Roper says, and it's easy to understand. [00:11:39] Speaker 00: It's easy to imagine a mechanism in which if the class gets certified. [00:11:44] Speaker 00: There's some mechanism for adjusting the damages awards to the absent class member to fund the thing. [00:11:51] Speaker 00: And that makes the individual named plaintiffs better off. [00:11:56] Speaker 00: I'm just not sure if that can work in an APA-like case, which is why I'm pressing you on what's the individualized interest at this point. [00:12:07] Speaker 02: Sure. [00:12:07] Speaker 02: So just coming back more generally, I think you're right in some sense, the way you're phrasing it, is that the ultimate award, again, [00:12:14] Speaker 02: You might be able to tell from the papers we've litigated this issue three times already in the prior cases where attorney's fees were awarded, right? [00:12:20] Speaker 02: So the judgment that comes out is not you win $4,000. [00:12:23] Speaker 02: What you win is an order to the secretary to rescind the denial and provide coverage. [00:12:29] Speaker 02: So one way that you can get attorney's fees, again, as we've won in three other cases now, actually four other cases, is you could get it under EJA. [00:12:38] Speaker 02: But I don't know that that's the only way that you could get it. [00:12:42] Speaker 02: I think you could actually get it on just traditional straight contingency agreement, right? [00:12:46] Speaker 02: Contingency agreement when the class members, right? [00:12:52] Speaker 02: When the denial is reversed, the class members would get the money. [00:12:55] Speaker 02: They were denied as for the coverage. [00:12:57] Speaker 02: I think you could get a component of that pursuant to contingency agreement. [00:13:00] Speaker 02: So it could actually be both in both instances. [00:13:05] Speaker 05: I had a question if we do if we do get to the merits and say, assume we disagree with you that the district court could properly exclude untimely and on exhausted claims. [00:13:19] Speaker 05: Do you dispute that if those claims are excluded, then there are only 17 viable claims? [00:13:25] Speaker 02: Yeah, yes. [00:13:26] Speaker 05: Do you dispute that number? [00:13:29] Speaker 02: Yes. [00:13:30] Speaker 05: OK. [00:13:31] Speaker 02: Yes. [00:13:31] Speaker 05: So again, where do you dispute that in your briefing? [00:13:35] Speaker 02: Yeah, I think it's actually, I want to say it's page 10 of the reply brief in particular. [00:13:39] Speaker 02: But in general, that number is disputed. [00:13:41] Speaker 02: As we've said, and I think actually district court's opinion actually summarizes my position as it's been all along. [00:13:47] Speaker 02: Again, we say you don't get to the merits, but at a minimum, [00:13:50] Speaker 02: assuming they were pled and assuming you could, in that hypothetical world, what you know is that the claims that would still be live, no matter what else happened, were all the claims that were live on the day the case was filed because of American Pipe. [00:14:03] Speaker 02: So we cited it below. [00:14:04] Speaker 02: I know we cited it in our papers. [00:14:05] Speaker 02: Because of American Pipe, every case, every claim by every person that was live on the day the claim complaint was filed in December 2018 is in the case because American Pipe stops all that. [00:14:16] Speaker 02: So again, I know [00:14:19] Speaker 02: I know in our papers, for example, we cite, if you look at, let's get to the JA site real quick here. [00:14:28] Speaker 02: If you look at JA 357 through 358, I actually provide a number sort of a couple of different ways. [00:14:34] Speaker 02: But taking the secretary's position that it should be claims 60 days before the complaint was filed, at that time it would be 117,000 claims filed by 34,000 people. [00:14:45] Speaker 02: So it's not 17, and as we say, it's premised on simply just ignoring American pipe. [00:14:51] Speaker 02: So again, you got an American pipe. [00:14:52] Speaker 02: The case could never be smaller than 34,000 people. [00:14:58] Speaker 02: I know the secretary cites to a case called Medellin from the Eighth Circuit, where it's the exact same thing. [00:15:03] Speaker 02: Again, actually quite instructive. [00:15:05] Speaker 02: They broke the potential class members out into four groups. [00:15:09] Speaker 02: And group three was all the claims that were alive when the claim complaint was filed. [00:15:14] Speaker 02: And of course, those all go on. [00:15:15] Speaker 02: And group four was the claims that came after. [00:15:18] Speaker 02: Claims that came after the complaint was filed. [00:15:20] Speaker 02: And again, I know what we say here is, if you look at, again, the last bit of discovery we have, again, I want to make this point, with regard to Part B claims, original Medicare claims, the last bit of discovery we have is from July 2019. [00:15:33] Speaker 02: And at that point, we calculate the Secretary was denying about 13,000 claims per month. [00:15:40] Speaker 02: And what we know from all this activity, go back into it, basically, the Secretary stopped applying that policy, they say, in May 2022. [00:15:50] Speaker 02: So you got about another one and a half, three years in there when claims are increasing at $13,000 a month. [00:15:55] Speaker 02: So you never get to $17,000. [00:15:57] Speaker 02: The $17,000 comes from assuming you ignore American Pipe. [00:16:01] Speaker 02: How many people went all the way through these five levels of process and got to the point where they could file a suit in district court? [00:16:09] Speaker 02: You know, again. [00:16:10] Speaker 02: just disregarding the whole idea of a class action, that you shouldn't have to do all that. [00:16:14] Speaker 02: That's where their 17 comes from. [00:16:15] Speaker 02: We found 17 people that weren't misled by all this stuff, went through the five levels, and got to the point where they could have filed suit in district court. [00:16:23] Speaker 02: But again, American Pipe says you don't do that. [00:16:26] Speaker 02: You don't do that. [00:16:27] Speaker 02: I'm sorry, do you not have a question? [00:16:30] Speaker 02: So just coming back again, I know that. [00:16:33] Speaker 02: So again, this first thing, this is just the poster child for a class action. [00:16:41] Speaker 02: You got more than 375,000 claims through July 2019, filed by 90,000 people. [00:16:48] Speaker 02: On average, again, as we calculated from the limited discovery we have from the secretary, the claims for about $4,000. [00:16:54] Speaker 02: It would be uneconomic to litigate each one. [00:16:57] Speaker 02: Every single one of the 90,000 people, they have the exact same theory of liability. [00:17:01] Speaker 00: That's true, but you do have the individualized defenses. [00:17:08] Speaker 02: I'm which defenses are referring to your honor. [00:17:12] Speaker 00: Statute of limitations, mounting controversy. [00:17:16] Speaker 02: So I don't understand the amount of controversy to have been an individualized defense here. [00:17:21] Speaker 02: I'm not aware of that. [00:17:23] Speaker 02: Likewise with regard to exhaustion and statute of limitations. [00:17:26] Speaker 02: Again, as we say in our papers, problem one seems like it wasn't ever pled. [00:17:33] Speaker 02: Never pled. [00:17:34] Speaker 02: So that seems a problem under Rule 8. [00:17:37] Speaker 02: Must affirmatively plead. [00:17:39] Speaker 02: Never happens. [00:17:40] Speaker 02: Even assuming it had happened from a class certification perspective, as we say, under 23A, it's not even relevant to 23A. [00:17:48] Speaker 02: Doesn't even come close to 23A. [00:17:51] Speaker 02: It's not a factor to be considered under 23B2. [00:17:59] Speaker 02: And with regard to 23B3, as we say, it wouldn't be individualized. [00:18:05] Speaker 02: Like, for example, one thing would be is, for claims filed after January 2017, appeal of them would be futile. [00:18:13] Speaker 02: The secretary, again, from Genesis litigation, in large part, in 2017, the secretary, without complying with notice and comment, issued a decision. [00:18:22] Speaker 02: Again, if you want to see it, I think we got to, [00:18:26] Speaker 02: at J.A. [00:18:27] Speaker 02: 688 through 703, where the secretary got a doctor, Mr. McConway, to say that the life-saving CGM doesn't serve a medical purpose, not primarily and customarily used to serve a medical purpose. [00:18:42] Speaker 02: And based on the issuance, illegal issuance of that, again, adjudicated bad faith position, based on that adjudicated bad faith position, again, the secretary's regulations say that everybody within Medicare [00:18:55] Speaker 02: all the way through from the initial initial consideration to redetermination through reconsideration, through the ALJ, through the MAC were required to deny CGM claims. [00:19:08] Speaker 02: So we want to talk about futility. [00:19:10] Speaker 02: They've got a mandatory policy saying that they could never come to an opposite conclusion. [00:19:15] Speaker 02: So is that particularized? [00:19:17] Speaker 02: Doesn't sound like it to me. [00:19:19] Speaker 02: And that's just picking one. [00:19:20] Speaker 02: So because of my base position, we should never look at the merits at this stage. [00:19:25] Speaker 02: And as we read every case, including Veneman from this court, saying you can't do that, inappropriately mixed the merits with class consideration. [00:19:35] Speaker 02: You couldn't do it. [00:19:36] Speaker 02: But even if you were, and I know identified five sort of five basic bases in our reply brief, these would be just straight up common issues. [00:19:44] Speaker 02: How about the issue about what did the initial denial say? [00:19:48] Speaker 02: Did they have the explanations complying with the statute? [00:19:51] Speaker 02: I haven't seen one that said that. [00:19:52] Speaker 02: And I've only seen the ones, again, I think an important point, I've only seen the ones for the Part B cases. [00:19:57] Speaker 02: We know in 90,000 of them, we contend, they just flat out lie to them that there's some statute that precludes it and there's no such statute. [00:20:05] Speaker 02: Nevertheless, it doesn't comply with the statute itself, that the denial has to be calculated in a manner to be understood by the beneficiary, a regular person. [00:20:14] Speaker 02: So they don't, of the ones we've been able to see, slash. [00:20:18] Speaker 02: They lie to them, told them the wrong purpose. [00:20:20] Speaker 02: And again, I think an important point that really comes back to some of the other issues here is there are about 25,000 [00:20:27] Speaker 02: Part C people, Medicare Advantage people that would be in the class through this day. [00:20:32] Speaker 02: There's never been a shred of discovery with regard to those people. [00:20:36] Speaker 02: What were they told? [00:20:38] Speaker 02: Were they told anything? [00:20:39] Speaker 02: We don't know. [00:20:41] Speaker 02: And again, a big problem here, again, coming back to the issue about trying to decide the merits as part of class certification. [00:20:47] Speaker 02: Where does that come from? [00:20:48] Speaker 02: Judge Walton found that those people failed to exhaust. [00:20:52] Speaker 02: Or I'm sorry, that exhaustion should not be weighed for those people. [00:20:55] Speaker 02: On what evidence? [00:20:58] Speaker 02: since nobody knows what they've been told because the denial of the discovery of it is out there. [00:21:02] Speaker 02: Again, it's just, I don't know, I guess they lose when nobody knows who they are. [00:21:06] Speaker 02: There's no evidence about it. [00:21:09] Speaker 02: Why don't you wrap up? [00:21:10] Speaker 02: Thank you. [00:21:11] Speaker 02: So just wrap up very quickly. [00:21:14] Speaker 02: And I'll sit down. [00:21:15] Speaker 02: If I may, again, as we say in our briefs, [00:21:18] Speaker 02: We also request, hope that the court will order the class certified. [00:21:23] Speaker 02: We've been here five and a half years. [00:21:25] Speaker 02: This is not in compliance with rule 23, right? [00:21:27] Speaker 02: This is not early, practicable date. [00:21:30] Speaker 02: It's the first thing in a class action case, and we're standing here arguing about it. [00:21:34] Speaker 02: Again, on rationale directly contradicted by the Supreme Court. [00:21:37] Speaker 02: And as we also request, we request the court reassign the case for the reasons set forth in our brief. [00:21:42] Speaker 02: Thank you, Your Honors. [00:21:55] Speaker 00: Mr. Cappell, you didn't address standing, but we have to deal with it. [00:22:01] Speaker 00: Does the government have any thoughts? [00:22:03] Speaker 00: You've heard the colloquy. [00:22:06] Speaker 03: Yes. [00:22:07] Speaker 03: May it please the court. [00:22:08] Speaker 03: We did not address standing in our brief. [00:22:10] Speaker 03: We do think this case is pretty close to Roper, although I do agree. [00:22:15] Speaker 00: Close to Roper in what sense that [00:22:20] Speaker 00: the mere fact of being a class rep, putative class rep, is enough to give standing or that this plaintiff has some concrete pocketbook injury because of the way fees or costs might be shifted? [00:22:37] Speaker 03: In the first sense, in the sense that being a [00:22:42] Speaker 03: And you think that's sufficient? [00:22:43] Speaker 03: Well, not necessarily. [00:22:44] Speaker 03: So this is what I was going to get to. [00:22:45] Speaker 03: I do think that there is a lot of truth. [00:22:47] Speaker 03: And you are correct in what you, I think, were saying that, especially in a case against the government where the fees are going to be paid most likely under EJA, there is no interest in spreading litigation costs among the class. [00:23:04] Speaker 00: The Roper rationale of shifting from absent class members to the named plaintiff doesn't seem to work. [00:23:13] Speaker 00: That's right. [00:23:15] Speaker 00: The EJA rationale might work, which is if they win on the issue that they want to put before us, maybe the EJA award to the named plaintiff is higher. [00:23:27] Speaker 03: But there's no Ijo Ward. [00:23:28] Speaker 03: Well, the plaintiff's attorney certainly has an interest here. [00:23:32] Speaker 03: The Ijo Ward to the plaintiff's attorney is going to be higher. [00:23:35] Speaker 00: Payable to the prevailing party. [00:23:38] Speaker 03: Nonetheless, I think that is really the attorney's interest. [00:23:42] Speaker 03: I don't think that that is the plaintiff's interest. [00:23:46] Speaker 03: So I do think that. [00:23:49] Speaker 00: So you're suggesting this broader reading of Roper [00:23:54] Speaker 03: Uh, not necessarily. [00:23:56] Speaker 03: We haven't taken a position on that. [00:23:57] Speaker 03: I we haven't taken a position on it, although I certainly understand that this case is certainly distinguishable. [00:24:05] Speaker 00: Okay, I'll let you go on. [00:24:07] Speaker 00: Thank you. [00:24:07] Speaker 03: Until today, I think, I did not understand. [00:24:11] Speaker 03: I don't think plaintiffs at all disputed that of the class they sought to certify, there were only 17 individuals in the same boat as the named plaintiffs with claims that were administratively exhausted and timely under the 60-day statute of limitations. [00:24:25] Speaker 03: Plaintiffs now say that on page 10 of their reply brief, they made this argument that there are more plaintiffs. [00:24:33] Speaker 03: There may be an oblique reference there. [00:24:35] Speaker 03: Even if the reference were clear, you can't preserve an argument in a reply brief. [00:24:39] Speaker 03: You certainly can't preserve an argument by raising it the first time at oral argument. [00:24:44] Speaker 03: Any argument that there are more than 17 unnamed plaintiffs with timely and exhausted claims is long forfeited at this point. [00:24:53] Speaker 03: And even if it weren't forfeited, I'll just note that plaintiffs suggest that the pendency of this class action told the statute of limitations for computer class members. [00:25:06] Speaker 03: That much is true, but it did not relieve any [00:25:10] Speaker 03: putative class members of any burden to exhaust administrative remedies. [00:25:13] Speaker 03: So any claims that were still working their way through the administrative process, those putative class members had to continue that administrative process. [00:25:22] Speaker 03: American Pipe deals with tolling of the statute of limitations. [00:25:25] Speaker 03: It does not deal with, it does not say that the dependency of the class action waives the requirement to exhaust administrative remedies. [00:25:35] Speaker 05: Can I just ask you a factual question? [00:25:36] Speaker 05: I'm wondering, with the change in policy at HHS, whether the agency is now just, as a routine matter, paying these claims for continuous glucose monitors? [00:25:49] Speaker 03: The agency is paying claims as they come up now. [00:25:52] Speaker 03: Certainly, in addition to under the policy past claims that are still working their way through the administrative process or where there is still [00:26:04] Speaker 03: claim the claimant is still within the window for an appeal, whether administrative appeal or to seek judicial review, the agency is paying those claims. [00:26:16] Speaker 03: So the other 99.98% of putative class members here couldn't meet the basic threshold requirements to state a claim under the Medicare Act because their claims were not administratively exhausted and not timely. [00:26:30] Speaker 03: And plaintiffs told the district court that they would explain at some later point why all those other putative class members could bring their claims nonetheless. [00:26:40] Speaker 03: But they steadfastly refused to make that argument at the class certification stage. [00:26:45] Speaker 03: Instead, plaintiffs ask the district court to certify a class now and figure out the proper number of claimants later. [00:26:52] Speaker 03: And that position would relieve plaintiffs of their burden to establish each of the requirements under Rule 23A, including numerosity, specifically would circumvent that numerosity requirement. [00:27:03] Speaker 00: For class certification purposes, the question is not whether that exhaustion [00:27:12] Speaker 00: whether your exhaustion defense has merit, right? [00:27:16] Speaker 00: It's whether you have to adjudicate it on an individualized basis, right? [00:27:25] Speaker 03: No, I think so. [00:27:26] Speaker 03: If you were looking at this under the Rule 23b3 predominance prong, I think that you would be looking at whether you need to, whether that exhaustion defense can be individualized or not. [00:27:38] Speaker 00: If it's a global defense, then his eyes and point is right. [00:27:43] Speaker 00: You don't decide the merits. [00:27:45] Speaker 03: Only with regards to predominance. [00:27:47] Speaker 03: You still need to establish numerosity. [00:27:49] Speaker 03: You also need to establish typicality and the exhaustion defense, which [00:27:55] Speaker 03: The name plaintiffs here had exhausted their claims. [00:27:57] Speaker 03: They had timely claims. [00:27:58] Speaker 03: So this issue also goes to typicality. [00:28:00] Speaker 03: The district court here only had to reach numerosity. [00:28:03] Speaker 03: Under Bowen, the district court was correct to determine at the outset whether the putative class members had exhausted and timely claims or whether they could [00:28:16] Speaker 03: waived the exhaustion requirement and told the statute of limitations, and because they could not, they were not proper members of that class. [00:28:23] Speaker 03: This court said in Zeng versus USCIS that a class certification order can't revive untimely claims [00:28:30] Speaker 03: nor can time-barred claimants be included in a class action. [00:28:34] Speaker 03: And that's exactly the case here. [00:28:35] Speaker 03: The district court applied that rule, applied Bowen, and applied the numerous cases from out of circuit to first determine whether the putative class members had viable claims, whether they could meet these threshold requirements of timeliness and exhaustion. [00:28:50] Speaker 03: Because they couldn't, the district court excluded those individuals, was left with a class of 17 unnamed plaintiffs, [00:28:56] Speaker 03: and said that doesn't meet the numerosity requirement of rule 23A. [00:29:03] Speaker 03: In addition to Bowen and Zeng, this [00:29:08] Speaker 03: cases I think is nearly identical, presents very similar facts to National Association of Government Employees from the Fifth Circuit, Gilchrist v. Bolger, which we cite in our brief from the Eleventh Circuit. [00:29:18] Speaker 03: In both of those cases, the district court denied an order, denied class certification, finding that most of the putative class members had untimely claims. [00:29:29] Speaker 03: And the number of class members with timely claims were in one case was 11 and in another case, [00:29:35] Speaker 03: The court couldn't figure out exactly how many individuals had timely claims. [00:29:38] Speaker 03: And so the court said that the plaintiffs in those cases couldn't establish the numerosity requirement of Rule 23. [00:29:44] Speaker 01: Do you think that the district judge in this case has proceeded more slowly than is appropriate? [00:29:56] Speaker 03: I don't know that that the district, whether the district court has proceeded more slowly than is appropriate. [00:30:02] Speaker 03: I want to apply on that. [00:30:03] Speaker 03: I would certainly say that reassignment in this case is unwarranted. [00:30:07] Speaker 03: In four and a half years, the district court decided a motion to dismiss a motion for preliminary injunction, a motion for class certification, numerous discovery motions and then entered final judgment. [00:30:17] Speaker 03: Plaintiffs don't like the way that the case turned out. [00:30:19] Speaker 03: They disagree with how the court decided many of those motions. [00:30:23] Speaker 03: But that doesn't mean that this case, as they say, has languished on the docket. [00:30:26] Speaker 03: It certainly has not. [00:30:28] Speaker 01: And in any event, I'm not sure I see the gap between it has not languished on the docket, but you're unwilling to say whether the district court has proceeded with a slowness that is inappropriate. [00:30:48] Speaker 03: Their claim on appeal, their argument on appeal is that the case should be reassigned. [00:30:51] Speaker 03: We certainly don't think that there are any facts here warranting reassignment. [00:30:57] Speaker 01: Part of why they say it should be reassigned is they say it languished on the docket. [00:31:01] Speaker 01: You say it hasn't languished on the docket, but if that's true, then it seems like you would be quick to say the district court proceeded with a speed that was appropriate. [00:31:14] Speaker 03: I do not litigate this in the district court. [00:31:16] Speaker 03: I can't speak to what is appropriate. [00:31:19] Speaker 03: I don't know. [00:31:21] Speaker 03: Appropriate within the realm of certainly not warranting reassignment, absolutely. [00:31:26] Speaker 03: Fair enough. [00:31:28] Speaker 03: Yeah. [00:31:31] Speaker 03: We ask that the court affirm the decision below. [00:31:33] Speaker 00: Thank you. [00:31:33] Speaker 03: Thank you. [00:31:42] Speaker 02: Thank you very much. [00:31:43] Speaker 00: I'll give you two minutes. [00:31:44] Speaker 02: Thank you, Your Honor. [00:31:45] Speaker 02: Judge Walker, I wanted to go to your points where we argue these things in our briefs. [00:31:49] Speaker 02: I think in our opening brief with regard to Roper and attorney's fees and that kind of thing, I think if you look at page 33 of our opening brief, and also I think if you look at pages 15, 19, and 20 of our reply briefs. [00:32:00] Speaker 01: So reply brief isn't enough to save you from forfeiture. [00:32:03] Speaker 01: And I thought you might say page 33 for your opening brief. [00:32:08] Speaker 01: You do talk about a paragraph about Roper [00:32:12] Speaker 01: You don't ever say you have an interest in spreading the litigation costs. [00:32:21] Speaker 01: And I guess maybe what you'll say is, well, all we had to do was cite Roper for a more general point. [00:32:29] Speaker 01: And that preserves an argument that you wanted to spread [00:32:32] Speaker 02: litigation costs is that I think in our I think I believe I'm correct I think in our opening brief we have a whole section I think the very first one saying the case is not moot for these same reasons right because you have the ability they have the independent interest where do you argue that you have an interest in spreading the litigation I don't believe we argued that you have an interest in spreading the litigation costs in the opening brief because they raise that in their opposition brief [00:32:57] Speaker 02: contending, I think, for example, that the plaintiff's no longer typical. [00:33:00] Speaker 02: So as a response to that, we're relying again on Roper. [00:33:03] Speaker 01: And then on the issue of spreading litigation costs versus just increasing litigation costs. [00:33:11] Speaker 01: So I get that, you know, if you could prolong the case, you would increase the litigation costs and then get more from EJA. [00:33:24] Speaker 01: But [00:33:26] Speaker 01: I'm not sure how you will be spreading the litigation costs that have already accumulated. [00:33:40] Speaker 02: I'm struggling with your question to say, in the first sense, of course, our goal has never been to prolong the litigation. [00:33:47] Speaker 02: Our goal since the beginning, I think actually since some of the first hearing before the district court has said, I'm ready to move for summary judgment. [00:33:53] Speaker 02: Let me ask you. [00:33:54] Speaker 01: I didn't ask the question very well. [00:33:56] Speaker 01: But as of right now, can you get the hours that you've worked on this case, can you get paid for that? [00:34:07] Speaker 01: I would say we don't know right we don't know because again the court would have to assess it right again if you limited yourself if the court assess the absent class certification if the court assessed it the way you want the court to assess it you could get paid for the hours you've worked. [00:34:23] Speaker 02: I think, again, when you say the court will assess it, if under EJA, under EJA, again, there's a prong. [00:34:30] Speaker 02: I think it's paragraph B and paragraph D. A court would first have to decide that the government's position allows substantial certification, or I think it's under D, that the government's position, again, was in bad faith. [00:34:40] Speaker 02: So if the court were to make those determinations under either of those two things, then yes, you could get different rates depending upon which one. [00:34:47] Speaker 02: You could get paid on under. [00:34:48] Speaker 01: You need to do that even if you got class certification, right? [00:34:52] Speaker 02: Well, again, if you're ultimately will be faced with that choice of doing that. [00:34:56] Speaker 02: That's correct. [00:34:57] Speaker 01: I'm just not seeing how class certification helps you get compensated more for the work you've already [00:35:07] Speaker 02: So again, as I said before, I think there could be two components of attorney fee compensation. [00:35:16] Speaker 02: Again, as the Supreme Court says, the contingency fees play a significant role in the class action context. [00:35:22] Speaker 02: So as I said before, I think you could get attorney fees under EJA and under contingency [00:35:26] Speaker 02: fee agreement. [00:35:27] Speaker 02: So again, your starting point is the broader the broader the class and the more potential awards attorneys fees could be. [00:35:34] Speaker 02: If I can, I just wanted to come back to a couple points. [00:35:37] Speaker 02: I heard Bowen again. [00:35:38] Speaker 02: I keep on hearing that. [00:35:39] Speaker 02: And I know we've submitted a motion for judicial notice where I provided the court with an actual copy of Judge Weinstein's order certifying the class within three months of the Bowen case being being filed. [00:35:50] Speaker 02: As I said all along, [00:35:51] Speaker 02: All the cases that I hear from the secretary, all the cases that are ever cited fall into two camps, right? [00:35:56] Speaker 02: One, where the defendant files a motion aimed at the named plaintiffs, named plaintiffs and the named plaintiffs who have attorneys and know of the case. [00:36:05] Speaker 02: oppose that and something happens in some way result. [00:36:07] Speaker 02: I think that might be the Niagara case. [00:36:09] Speaker 02: Many cases fall in that category. [00:36:10] Speaker 02: You move against the name plaintiffs. [00:36:12] Speaker 02: You fail to exhaust, for example, and the result on that determination could control the class certification. [00:36:19] Speaker 02: That's one of the big groups. [00:36:21] Speaker 02: Every other case that I've ever heard them cite, it's after a class is certified and after the class members have notice and counsel to champion their interest. [00:36:30] Speaker 02: that the court looks at the merits and then makes a determination and then may modify the class or not. [00:36:37] Speaker 02: In Bowen, class wasn't modified later. [00:36:40] Speaker 02: But there was never. [00:36:42] Speaker 02: There is no case where a court first, out of the gate, decides the merits with regard to the absent class members. [00:36:50] Speaker 02: Geez, you think it would be a good idea. [00:36:52] Speaker 02: Maybe they should know of the case. [00:36:54] Speaker 02: Maybe they should have attorneys to represent them. [00:36:56] Speaker 02: That would seem like a good thing. [00:37:00] Speaker 00: Thank you very much. [00:37:01] Speaker 00: Thank you, Your Honor.