Respondents Brief — Carol A. Lewis, et al., Petitioners v. Robert F. Kennedy, Jr., Secretary of Health and Human Services

No. 24-1158

In the Supreme Court of the United States

CAROL A. LEWIS, ET AL., PETITIONERS

v.

ROBERT F. KENNEDY, JR.,

SECRETARY OF HEALTH AND HUMAN SERVICES

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

D. JOHN SAUER

Solicitor General

Counsel of Record

BRETT A. SHUMATE

Assistant Attorney General

CHARLES W. SCARBOROUGH

JOSHUA M. KOPPEL

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly dismissed an

appeal of an order denying class certification for lack of

jurisdiction where the named plaintiffs’ claims had been

resolved in their favor and plaintiffs disclaimed any continuing personal stake in the litigation.

(I)

TABLE OF CONTENTS

Page

Opinions below ................................................................................ 1

Jurisdiction ...................................................................................... 1

Statement ......................................................................................... 2

Argument ......................................................................................... 6

Conclusion ...................................................................................... 18

TABLE OF AUTHORITIES

Cases:

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) ................................................................... 7

Becerra v. Empire Health Foundation,

597 U.S. 424 (2022) ................................................................. 2

Belveal v. Heckler, 796 F.2d 1261 (10th Cir. 1986) ............. 14

Bowen v. City of New York, 476 U.S. 467 (1986) ............. 2, 18

Cameron-Grant v. Maxim Healthcare Services, Inc.,

347 F.3d 1240 (11th Cir. 2003), cert. denied,

541 U.S. 1030 (2004) ............................................................. 15

Culver v. City of Milwaukee, 277 F.3d 908

(7th Cir. 2002) ........................................................................ 15

Deposit Guaranty National Bank v. Roper,

445 U.S. 326 (1980) ......................................................... 4, 7, 8

Flast v. Cohen, 392 U.S. 83 (1968) ........................................... 9

Food Marketing Institute v. Argus Leader Media,

588 U.S. 427 (2019) ................................................................. 7

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000) .................... 10

Genesis Healthcare Corp. v. Symczyk,

569 U.S. 66 (2013) ................................................................... 8

Jin v. Shanghai Original, Inc., 990 F.3d 251

(2d Cir. 2021) ............................................................... 5, 13, 14

Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) ........ 7

(III)

IV

Cases—Continued:

Page

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .......... 12

Lusardi v. Xerox Corp., 975 F.2d 964 (3d Cir. 1992) .......... 15

Mathews v. Eldridge, 424 U.S. 319 (1976) ............................. 2

Reed v. Heckler, 756 F.2d 779 (10th Cir. 1985).................... 14

Richards v. Delta Air Lines, Inc., 453 F.3d 525

(D.C. Cir. 2006) ..................................................................... 15

Sosna v. Iowa, 419 U.S. 393 (1975) ......................................... 9

Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) ..... 5, 9, 11, 12, 14

Summers v. Earth Island Institute,

555 U.S. 488 (2009) ......................................................... 11, 12

TransUnion LLC v. Ramirez, 594 U.S. 413 (2021) ...... 11, 12

United Airlines, Inc. v. McDonald,

432 U.S. 385 (1977) ............................................................... 16

United States Parole Commission v. Geraghty,

445 U.S. 388 (1980) ................................................... 5, 6, 9-13

Wisniewski v. United States, 353 U.S. 901 (1957) .............. 15

Constitution, statutes, and rules:

U.S. Const.:

Art. III ............................................................ 3, 4, 10, 12, 14

42 U.S.C. 405(g) ......................................................................... 2

42 U.S.C. 1395 et seq. ................................................................ 2

42 U.S.C. 1395ff(b)(1)(A) .......................................................... 2

Fed. R. Civ. P.:

Rule 23(a)(1) ................................................................... 3, 17

Rule 23(a)(2) ....................................................................... 18

Rule 23(a)(3) ....................................................................... 18

Rule 23(f ) ............................................................................ 14

Miscellaneous:

85 Fed. Reg. 70,358 (Nov. 4, 2020) .......................................... 3

V

Miscellaneous—Continued:

Page

86 Fed. Reg. 73,860 (Dec. 28, 2021) ......................................... 3

In the Supreme Court of the United States

No. 24-1158

CAROL A. LEWIS, ET AL., PETITIONERS

v.

ROBERT F. KENNEDY, JR.,

SECRETARY OF HEALTH AND HUMAN SERVICES

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-19a)

is reported at 111 F.4th 65. The opinion of the district

court (Pet. App. 20a-55a) is available at 2022 WL

1262122. A subsequent opinion of the district court

(Pet. App. 56a-92a) is available at 2023 WL 3884595.

JURISDICTION

The judgment of the court of appeals was entered on

August 2, 2024. A petition for rehearing was denied on

January 7, 2025 (Pet. App. 95a-101a). On April 1, 2025,

the Chief Justice extended the time to file a petition for

a writ of certiorari until May 7, 2025, and the petition

was filed on that date. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. a. Medicare is a federal health-insurance program for the elderly and disabled that is administered

by the Centers for Medicare & Medicaid Services

(CMS) in the Department of Health and Human Services (HHS). See 42 U.S.C. 1395 et seq.; Becerra v. Empire Health Foundation, 597 U.S. 424, 428-429 (2022).

A Medicare beneficiary dissatisfied with a benefits determination may, after exhausting administrative remedies, seek judicial review by filing a civil action within

60 days of a final administrative decision. See 42 U.S.C.

405(g), 1395ff(b)(1)(A); Mathews v. Eldridge, 424 U.S.

319, 328 (1976).

This case concerns Medicare coverage of continuous

glucose monitors for diabetic patients. Petitioners are

two Medicare beneficiaries with diabetes whose claims

for continuous glucose monitors between 2015 and 2017

were denied. See Pet. App. 3a-4a, 25a-26a & n.4. After

exhausting administrative review, petitioners timely

filed suit in 2018, and in 2020 moved to certify a class of

“ ‘all persons who submitted claims for coverage of continuous glucose monitor equipment or supplies whose

claims were denied (and not later reversed on appeal)

since December 13, 2012’—regardless of whether these

individuals had exhausted administrative remedies or

timely sought judicial review.” Id. at 4a (brackets and

citation omitted); see id. at 25a, 28a.

The district court denied class certification. Pet.

App. 20a-55a. The court held that categorically waiving

the exhaustion requirement or tolling the limitations

period for claimants was unwarranted given the circumstances. Id. at 40a-46a; see Bowen v. City of New York,

476 U.S. 467 (1986). As a result, the court found that

the class would include only 17 putative class members

3

(not including the two named plaintiffs) with claims that

were both administratively exhausted and timely, and

that petitioners “do not contest this number.” Pet. App.

51a. The court explained that the class was therefore

too small to satisfy the numerosity requirement of Federal Rule of Civil Procedure 23(a)(1). Pet. App. 50a-53a.

b. After the denial of class certification, the government moved for partial entry of judgment in petitioners’

favor, based on intervening developments. See Pet.

App. 4a. In November 2020, while the case was pending, CMS published a proposed rule that would allow

Medicare coverage of continuous glucose monitors. 85

Fed. Reg. 70,358 (Nov. 4, 2020). The proposed rule was

finalized in December 2021 and became effective in February 2022. 86 Fed. Reg. 73,860 (Dec. 28, 2021). And in

May 2022, the CMS Administrator issued a ruling formally rescinding a prior 2017 ruling that had excluded

continuous glucose monitors from coverage. See Pet.

App. 3a. In light of the new regulation and CMS ruling,

the government paid petitioners’ claims in full. See id.

at 62a-63a. The district court thus entered judgment in

favor of petitioners on their individual claims challenging the denial of coverage, vacated the administrative

decisions denying coverage, and dismissed petitioners’

remaining claims as moot. Id. at 93a-94a.

Petitioners appealed, but “d[id] not challenge any

aspect of their favorable merits judgment” or the dismissal of their remaining claims. Pet. App. 5a. Instead,

they sought to “challenge only the denial of their motion

for class certification.” Ibid.

2. The court of appeals dismissed the appeal for lack

of jurisdiction, holding that petitioners lacked Article

III standing to challenge the denial of class certification

4

given the judgment in their favor on the individual

claims. Pet. App. 1a-19a.

The court of appeals observed that “in a federal appellate court, an appellant must show a concrete and

particularized injury ‘fairly traceable to the judgment

below’ and likely to be redressed by a favorable ruling

on appeal.” Pet. App. 6a (citation omitted). The court

concluded, however, that petitioners’ “abstract interest

in serving as class representatives” was “insufficient to

satisfy Article III.” Id. at 19a. The court explained that

in Deposit Guaranty National Bank v. Roper, 445 U.S.

326 (1980), this Court held that named plaintiffs whose

individual claims were resolved favorably on the merits

had appellate standing to challenge the denial of class

certification because they retained a “ ‘personal stake in

the appeal’ ” arising from their desire “to shift part of

their litigation costs” to the class. Pet. App. 6a-7a (citation omitted).

The court of appeals explained that unlike in Roper,

petitioners had no such personal stake in appealing the

denial of class certification. The court observed that petitioners had expressly “disavowed any theory of standing based on the possible recovery of costs or fees from

absent class members”; “declined to press any theory of

standing based on the possible recovery of increased

fees from the government”; and “d[id] not claim standing as next friends of other diabetic Medicare beneficiaries.” Pet. App. 10a-11a & n.2. Instead, the court

noted, petitioners “allege[d] only one injury—losing the

asserted right to represent the interests of absent class

members.” Id. at 10a. The court explained that petitioners’ alleged injury was “a ‘bare procedural violation,

divorced from any concrete harm’ to [petitioners],” and

thus insufficient to support Article III standing. Id. at

5

11a (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 341

(2016)).

The court of appeals acknowledged this Court’s holding in United States Parole Commission v. Geraghty,

445 U.S. 388 (1980), that “a prisoner could appeal a denial of class certification even after his release had

mooted his individual claim.” Pet. App. 12a. But the

court of appeals explained that unlike the prisoner’s

claim in Geraghty, petitioners’ claims here were not

mooted, but instead resolved in their favor. The court

thus concluded that “Roper—not Geraghty—is the directly controlling precedent.” Id. at 16a. The court also

observed that “Geraghty’s reasoning—reducing constitutional standing to a functionalist concern about adversary presentation—does not reflect current law.” Id. at

14a. Accordingly, the court acknowledged that though

it “remain[ed] bound by Geraghty’s specific holding,”

Roper was the more relevant precedent. Id. at 16a.

The court of appeals acknowledged (Pet. App. 12a13a) that its decision departed from the Second Circuit’s

decision in Jin v. Shanghai Original, Inc., 990 F.3d 251

(2021), which held that a named plaintiff who prevailed

on his individual claim at trial had standing to appeal a

pretrial order decertifying the class because he had an

interest “akin to the interest of a private attorney general” in “deterring misconduct through private enforcement of vital public policies,” id. at 259. But the court

viewed Jin as unpersuasive because the Second Circuit

improperly read Roper’s reliance on the plaintiff ’s independent personal stake in the class (namely, the interest in shifting the costs of litigation) as setting forth

merely a sufficient condition of standing to appeal a denial of class certification, rather than a necessary one.

Pet. App. 12a-13a.

6

3. The court of appeals denied rehearing en banc

with no noted dissents and no calls for a vote. Pet. App.

95a-101a. Judge Pillard concurred in the denial of rehearing, observing that the panel’s decision “will likely

have only limited precedential impact.” Id. at 97a. She

explained that “[i]n most cases—unlike in this case—

parties owing fees may arrange to share that obligation

with the unnamed class members” such that the named

plaintiffs would have appellate standing under Roper;

counsel for a proposed class could “request interlocutory review of a denial of class certification under Rule

23(f )”; or counsel could “recruit other putative class

members to substitute or intervene post-judgment to

appeal the denial of class certification.” Id. at 101a.

Judge Pillard further observed that because petitioners’ claims “were mooted by a generally applicable

change in policy,” this case “does not present the concern that defendants have attempted to ‘pick off ’ the

named plaintiffs before a class can be certified.” Id. at

97a.

ARGUMENT

Petitioners ask this Court to review their contention

(Pet. 12-37) that they have standing to appeal the denial

of class certification notwithstanding the entry of judgment in their favor and the lack of any continuing personal stake in the class’s claims. The court of appeals

correctly rejected that contention, and its decision does

not conflict with any decision of this Court, including

United States Parole Commission v. Geraghty, 445

U.S. 388 (1980). Petitioners also overstate the conflict

with decisions of other courts of appeals. And the decision below lacks prospective importance because petitioners failed to avail themselves of longstanding and

well-known methods to preserve putative class repre-

7

sentatives’ ability to seek appellate review of an order

denying class certification. This Court’s review is unwarranted.

1. a. The Constitution “denies federal courts the

power ‘to decide questions that cannot affect the rights

of litigants in the case before them,’ and confines them

to resolving ‘real and substantial controversies admitting of specific relief.’ ” Lewis v. Continental Bank

Corp., 494 U.S. 472, 477 (1990) (brackets and citations

omitted). “To qualify as a case fit for federal-court adjudication, ‘an actual controversy must be extant at all

stages of review.’ ” Arizonans for Official English v.

Arizona, 520 U.S. 43, 67 (1997) (citation omitted). The

standing requirement must therefore “be met by persons seeking appellate review, just as it must be met by

persons appearing in courts of first instance.” Id. at 64.

An appealing litigant “must demonstrate that it has suffered an actual or imminent injury that is ‘fairly traceable’ to the judgment below” and that “a favorable ruling

from [the appellate court] would redress [that] injury.”

Food Marketing Institute v. Argus Leader Media, 588

U.S. 427, 432-433 (2019) (citation omitted).

This Court most relevantly addressed the standing

of plaintiffs to challenge the denial of class certification

in Deposit Guaranty National Bank v. Roper, 445 U.S.

326 (1980). There, after the district court denied class

certification, the defendant tendered the maximum

amount that each of the putative class representatives

could have recovered in the suit, and on that basis the

court entered judgment in the plaintiffs’ favor, over

their objection. See id. at 327-330. This Court explained that where “appropriate,” a prevailing party

may appeal “an adverse ruling collateral to the judgment on the merits, * * * so long as that party retains

8

a stake in the appeal satisfying the requirements of

Art[icle] III.” Id. at 334. The Court observed that the

plaintiffs in Roper had such a “personal stake in the

appeal”—namely, “their desire to shift the successful

class litigants a portion of those fees and expenses that

have been incurred in this litigation and for which they

assert a continuing obligation.” Id. at 334 n.6; see Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 78 (2013)

(explaining that the plaintiffs in Roper “possessed a

continuing personal economic stake in the litigation,

even after the defendants’ offer of judgment”).

The court of appeals here correctly applied Roper in

holding that petitioners lack appellate standing because

they have no cognizable stake in appealing the denial

of class certification, given the favorable judgment on

their individual claims. Pet. App. 10a-12a. Unlike the

plaintiffs in Roper, petitioners have expressly “disavowed any theory of standing based on the possible recovery of costs or fees from absent class members.” Id.

at 10a. Petitioners likewise have “declined to press any

theory of standing based on the possible recovery of increased fees from the government.” Ibid. And they “do

not claim standing” under third-party standing doctrines. Id. at 11a n.2.

Instead, each petitioner asserted only “the mere desire to serve as a class representative” as the relevant

interest. Pet. App. 10a. The court of appeals correctly

rejected that interest as a cognizable “stake in the appeal satisfying the requirements of Art[icle] III,” Roper

445 U.S. at 334. As the court observed, even “[i]f HHS

now reimbursed all absent class members, it would benefit [petitioners] ‘no more directly and tangibly’ than it

would benefit ‘the public at large,’ ” thus rendering their

“continued discontent with the denial of class certifica-

9

tion” simply “a ‘generally available grievance about the

government.’ ” Pet. App. 10a (brackets and citations

omitted). The court likewise appropriately rejected any

interest in correcting an “alleged misapplication of Rule

23” to establish appellate standing. Id. at 11a. As the

court explained, any “alleged misapplication of Rule 23

was a ‘bare procedural violation, divorced from any concrete harm’ to [petitioners]—which cannot support

their standing.” Ibid. (quoting Spokeo, Inc. v. Robins,

578 U.S. 330, 341 (2016)).

b. Contrary to petitioners’ assertion, the decision

below does not conflict with Geraghty, supra. There,

the Court held that a prisoner had standing to appeal

the denial of class certification even after his own claim

had become moot during the pendency of the appeal because of his release from prison. 445 U.S. at 397-407.

The Court relied on two rationales, both of which it justified on the ground that the Court no longer adhered

to a “strict, formalistic perception of Art[icle] III,” as

evidenced by the decision in Flast v. Cohen, 392 U.S. 83

(1968). Geraghty, 445 U.S. at 404 n.11.

First, the Court noted that Sosna v. Iowa, 419 U.S.

393 (1975), had already “held that mootness of the

named plaintiff ’s individual claim after a class has been

duly certified does not render the [class] action moot.”

Geraghty, 445 U.S. at 397. The Court explained that

under “a ‘relation back’ approach,” the same should be

true if the named plaintiff ’s claim becomes moot after

class certification is erroneously denied, especially

when (as in Geraghty) the claims are “inherently transitory,” such that “the trial court [might] not have even

enough time to rule on a motion for class certification

before the proposed representative’s individual interest

expires.” Id. at 398-399; see id. at 406-407 n.11.

10

Second, the Court stated that the putative class representative has a sufficient personal stake in the class

claims in the form of a procedural “right to have a class

certified if the requirements of the Rules are met.”

Geraghty, 445 U.S. at 403. The Court acknowledged

that “[t]his ‘right’ is more analogous to the private attorney general concept than to the type of interest traditionally thought to satisfy the ‘personal stake’ requirement.” Ibid. The Court also acknowledged that

“[a] ‘legally cognizable interest’ * * * in the traditional

sense rarely ever exists with respect to the class certification claim.” Id. at 402 (citation omitted). But the

Court justified its holding on the ground that Sosna

“[i]mplicit[ly]” determined that “vigorous advocacy can

be assured through means other than the traditional requirement of a ‘personal stake in the outcome.’ ” Id. at

404 (emphasis added).

Neither rationale is applicable here, and the second

one in particular has been undermined by subsequent

case law. Unlike Sosna or Geraghty, this case does not

involve a named plaintiff ’s claim that became moot after

the certification decision, much less an inherently transitory claim. Instead, like Roper, it involves a claim that

was resolved in the plaintiff ’s favor on the merits. The

court of appeals thus correctly determined that “Roper—

not Geraghty—is the directly controlling precedent for

assessing whether plaintiffs who have prevailed on the

merits may appeal a denial of class certification.” Pet.

App. 16a.

After all, there is a meaningful difference between

an individual claim that has been resolved favorably on

the merits and one that has become moot. This Court

has held that mootness is less stringent than Article III

standing, see Friends of the Earth, Inc. v. Laidlaw En-

11

vironmental Services (TOC), Inc., 528 U.S. 167, 192

(2000), and Geraghty’s reference to inherently transitory claims and well-known exceptions to mootness, see

445 U.S. at 398-399, suggest that the Court in Geraghty

might have viewed a named plaintiff as still having a

sufficient cognizable personal stake in the lawsuit even

where his individual claim is no longer viable because

of happenstance. Cf. id. at 400 (relying on “the flexible

character of the Art[icle] III mootness doctrine”). No

analogous circumstance or flexibility would justify finding a continuing personal stake where the plaintiff has

prevailed on the merits and received all the relief that

was requested on the individual claim, absent an independent interest like the financial one in Roper.

Petitioners thus err in attempting to extend

Geraghty’s “relation back” rationale to this case. Indeed, Geraghty itself disclaimed addressing situations

where the named plaintiff “settles the individual claim

after denial of class certification,” 445 U.S. at 404 n.10—

even though as a logical matter the relation-back principle would seem to apply equally there (especially since

the denial of class certification itself may have induced

the settlement). A fortiori, Geraghty should not be extended to situations directly covered by Roper, which

was decided on the same day.

As for Geraghty’s second rationale, the court of appeals correctly determined that it “does not reflect current law.” Pet. App. 14a. Since Geraghty, the Court has

repeatedly made clear that a “bare procedural violation,

divorced from any concrete harm,” does not “satisfy the

injury-in-fact requirement of Article III.” Spokeo, 578

U.S. at 341; see TransUnion LLC v. Ramirez, 594 U.S.

413, 440 (2021) (same); Summers v. Earth Island Institute, 555 U.S. 488, 496 (2009) (“[D]eprivation of a proce-

12

dural right without some concrete interest that is affected by the deprivation—a procedural right in

vacuo—is insufficient to create Article III standing.”);

Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7

(1992) (only a “person who has been accorded a procedural right to protect his concrete interests” can rely on

that right for standing; “persons who have no concrete

interests affected” cannot rely on procedural rights).

Geraghty itself acknowledged that the bare procedural “ ‘right’ ” to have a class certified is not “the type

of interest traditionally thought to satisfy the ‘personal

stake’ requirement” of Article III, 445 U.S. at 403, and

the Court’s subsequent case law has confirmed that the

requirement cannot be dispensed with. E.g., TransUnion, 594 U.S. at 440; Spokeo, 578 U.S. at 341; Summers, 555 U.S. at 496. Geraghty thus cannot be read to

support petitioners’ standing to vindicate a bare procedural interest in “the asserted right to represent the interests of absent class members,” Pet. App. 10a. Petitioners rely (Pet. 28) on Geraghty’s dictum that the prisoner’s “ ‘personal stake’ in the outcome of the litigation

is, in a practical sense, no different from that of the putative class representatives in Roper,” 445 U.S. at 401.

But that dictum is plainly incorrect, given that the class

representatives in Roper had a direct financial stake in

shifting litigation costs, while the prisoner in Geraghty

asserted only the procedural injury.

At all events, Geraghty acknowledged that “the approach to take in applying Art[icle] III is issue by issue”; that “[a]pplication of the personal-stake requirement to a procedural claim, such as the right to represent a class, is not automatic or readily resolved”; and

that a “ ‘legally cognizable interest’ ” “in the traditional

sense rarely ever exists with respect to the class certi-

13

fication claim.” 445 U.S. at 401-402 (citation omitted).

The Court in Geraghty may have viewed the prisoner’s

claim as one of those “rare[]” cases, id. at 402, and the

court of appeals here recognized that it was “bound by

Geraghty’s specific holding,” Pet. App. 16a. But that

does not justify extending Geraghty to different situations and thereby converting what Geraghty itself

thought would be a rare occurrence into a commonplace.

2. Petitioners contend (Pet. 31-35) that the decision

below conflicts with decisions from other courts of appeals. Although petitioners significantly overstate the

conflict, they are correct that the decision below conflicts with decisions from the Second and Tenth Circuits. Nevertheless, that minor conflict does not warrant this Court’s review.

As the court of appeals here acknowledged (Pet.

App. 12a-17a), the decision below conflicts with the Second Circuit’s decision in Jin v. Shanghai Original, Inc.,

990 F.3d 251 (2021), which held that a named plaintiff

could appeal from a pretrial order decertifying a class

after prevailing on his individual claims at trial. Id. at

256, 259-260. But as the court explained (Pet. App. 12a),

Jin erroneously read Roper’s reliance on the named

plaintiff ’s personal stake in class certification as merely

setting forth a sufficient, rather than necessary, condition of standing. See Jin, 990 F.3d at 258. At the same

time, Jin incorrectly relied on the plaintiff ’s supposed

“ ‘right to have a class certified if the requirements of

Rule 23 are met,’ ” which it viewed as being “akin to the

interest of a private attorney general” in “deterring

misconduct through private enforcement of vital public

policies.” Id. at 259 (brackets and citation omitted). As

noted, that purely procedural interest is incompatible

14

with modern standing doctrine. At a minimum, the narrow circuit conflict created by Jin’s outlier holding and

reasoning would benefit from further percolation.

In addition, the Second Circuit in Jin pointed out

that the district court there had sua sponte decertified

the class on the eve of trial, and that although the named

plaintiff proceeded to trial (and prevailed) on his individual claims, he also timely filed a Rule 23(f ) petition

for interlocutory review of the decertification order.

990 F.3d at 256, 260 n.13. Had the Second Circuit

granted that petition, nobody doubts that it would have

had jurisdiction to address the plaintiff ’s challenge to

the decertification order. But the Second Circuit denied

the petition as “unnecessary” and instead construed it

as a notice of appeal from the final judgment. Id. at 260

n.13. The Second Circuit did not deem those circumstances to be “determinative,” ibid., but they further indicate that Jin is an outlier that does not give rise to a

square conflict warranting this Court’s review.

Nor does the conflict with the Tenth Circuit’s 40year-old decision in Reed v. Heckler, 756 F.2d 779 (1985),

warrant further review. Reed forthrightly acknowledged that it was “extend[ing] Geraghty,” not merely

applying it. Id. at 786. Reed, moreover, reasoned that

Article III was satisfied “[s]o long as the claims of the

unnamed plaintiffs are presented in a sufficiently adversarial relationship to sharpen the issues,” irrespective of the named plaintiff ’s personal stake in the matter. Id. at 787. That reasoning is flatly inconsistent

with modern standing doctrine. See, e.g., Spokeo, supra. Petitioners offer no basis to believe that, if presented with the issue afresh, the Tenth Circuit would

adhere to Reed. Cf. Belveal v. Heckler, 796 F.2d 1261,

15

1265 (10th Cir. 1986) (acknowledging that Reed “extended Geraghty” and refusing to “further extend[]” it).

Petitioners err in asserting any broader conflict beyond Jin and Reed. Contrary to petitioners’ assertion

(Pet. 33-35), the decision below does not conflict with

decisions from the Third, Seventh, Eleventh, or D.C.

Circuits. Lusardi v. Xerox Corp., 975 F.2d 964 (3d Cir.

1992), and Cameron-Grant v. Maxim Healthcare Services, Inc., 347 F.3d 1240 (11th Cir. 2003) (per curiam),

cert. denied, 541 U.S. 1030 (2004), held that plaintiffs

who settled their claims could not challenge the denial

of class certification and the denial of a motion to proceed as a collective action, respectively. Lusardi, 975

F.2d at 973-984; Cameron-Grant, 347 F.3d at 1244-1249.

Neither holding conflicts with the decision below. Culver v. City of Milwaukee, 277 F.3d 908 (7th Cir. 2002),

simply applied Geraghty in a case where the named

plaintiff ’s claim had become moot—not, as here and in

Roper, where the plaintiff ’s claim was favorably resolved on the merits. See id. at 910. And in Richards

v. Delta Air Lines, Inc., 453 F.3d 525 (D.C. Cir. 2006),

the court of appeals relied on the named plaintiff ’s continued “interest in shifting attorney fees and other litigation costs” to the class, id. at 529—i.e., the very interests on which Roper relied and which petitioners in this

case have expressly disclaimed, see Pet. App. 10a. Besides, any intracircuit conflict would not merit this

Court’s review. See Wisniewski v. United States, 353

U.S. 901, 902 (1957) (per curiam) (“It is primarily the

task of a Court of Appeals to reconcile its internal difficulties.”).

3. At all events, the question presented does not

warrant this Court’s review because it is of “only limited

precedential impact.” Pet App. 97a (Pillard, J., concur-

16

ring in the denial of rehearing en banc). The decision

below acknowledged that, under Roper, named plaintiffs will have standing to appeal the denial of class certification if they retain a monetary interest in the case,

such as “in spreading costs to absent putative class

members” or, possibly, “increas[ing] their expected fee

award” under the Equal Access to Justice Act. Id. at

18a.

Judge Pillard explained that “[i]n most cases,”

named plaintiffs “owing fees may arrange to share that

obligation with the unnamed class members,” thereby

ensuring that they have the type of personal stake in

the denial of class certification that Roper recognized.

Pet. App. 101a. At the same time, if the named plaintiffs

do not retain that kind of personal stake, their “possible

difficulty in pursuing a final-judgment appeal may

strengthen their case for discretionary interlocutory review under Federal Rule of Civil Procedure 23(f ).” Id.

at 19a; see id. at 101a (Pillard, J., concurring in the denial of rehearing en banc). And if that fails, counsel may

seek to represent absent class members to intervene

post-judgment in order to appeal the denial of class certification. Ibid.; see United Airlines, Inc. v. McDonald,

432 U.S. 385, 394-396 (1977) (holding that the district

court should have granted a putative class member’s

motion to intervene filed after final judgment for the

purpose of appealing the earlier denial of class certification). As Judge Pillard observed, those longstanding,

well-known, and easily employed methods for putative

class representatives to retain a sufficient personal

stake in the class certification decision, even when their

individual claims are resolved on the merits, greatly

minimize the prospective importance of the decision below. See Pet. App. 97a, 101a.

17

Petitioners’ policy concerns (Pet. 36-37) are misplaced. The decision below will not discourage attorneys from becoming class counsel; rather, it will ensure

that counsel take one or more of the steps just outlined

to ensure that some party, whether a named plaintiff or

an absent plaintiff-intervenor, has standing to appeal

any order denying class certification (or decertifying a

previously certified class). The failure of petitioners’

counsel in this case to take such readily available steps

is hardly a reason for this Court to step in to address a

policy concern that will rarely if ever materialize in the

future.

Additionally, “because the named plaintiffs’ claims

were mooted by a generally applicable change in policy,

this case does not present the concern that defendants

have attempted to ‘pick off ’ the named plaintiffs before

a class can be certified.” Pet. App. 97a (Pillard, J., concurring in the denial of rehearing en banc). Under the

new policy, HHS paid the Medicare claims of all beneficiaries whose claims had been denied under the prior

policy and whose Medicare claims or appeals were still

pending. See C.A. App. 602-603. As a result, any unnamed plaintiffs with pending claims or appeals, or

whose claims were fully exhausted and for whom the

time to seek judicial review had not yet run, were entitled to the same payments as petitioners.

4. Finally, this case is a poor vehicle in which to address the question presented because petitioners would

not obtain any meaningful benefit even if that question

were resolved in their favor. The district court was

plainly correct in denying class certification. The proposed class fell far short of meeting the numerosity requirement of Rule 23(a)(1) because it contained only 17

unnamed class members whose claims were exhausted

18

and timely. Pet. App. 51a. Petitioners “d[id] not contest

this number.” Ibid. Instead, petitioners previously argued that the district court should have certified a class

that included individuals with unexhausted or untimely

claims. See id. at 37a. But such claimants could not

possibly satisfy the commonality and typicality requirements of Rule 23(a)(2) and (3), and petitioners have established no basis to suggest that exhaustion should categorically be waived or the limitations period categorically tolled. Cf. Bowen v. City of New York, 476 U.S.

467 (1986) (class including individuals with untimely or

unexhausted claims could be certified only because, in

the circumstances of that case, exhaustion was waived

and the limitations period tolled for all members).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

BRETT A. SHUMATE

Assistant Attorney General

CHARLES W. SCARBOROUGH

JOSHUA M. KOPPEL

Attorneys

AUGUST 2025