Reply 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 AND DOUGLAS B. SARGENT,

ON BEHALF OF THEMSELVES AND

ALL OTHERS SIMILARLY SITUATED,

Petitioners,

v.

ROBERT F. KENNEDY JR., IN HIS CAPACITY AS

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of A ppeals

for the District of Columbia Circuit

REPLY BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

A ndrew C. Gresik

Foley & Lardner LLP

150 East Gilman Street,

Suite 5000

Madison, WI 53703

James Pistorino

Parrish Law Office

788 Washington Road

Pittsburgh, PA 15228

384613

David B. Goroff

Counsel of Record

Foley & Lardner LLP

321 North Clark Street,

Suite 3000

Chicago, IL 60654

(312) 832-4500

dgoroff@foley.com

Counsel for Petitioners

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

The Panel’s Intentional Disregard Of Geraghty

Warrants Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

The Panel Misconstrued This Court’s Decision

In Roper, Further Supporting Review . . . . . . . . . . . 7

This Court Should Resolve The Circuit Split

That The Panel Decision Creates . . . . . . . . . . . . . . . . 9

This Court Should Remove The Threat The Panel

Decision Poses To Class Actions . . . . . . . . . . . . . . . . 10

This Is The Right Case To Resolve The

Questions Presented . . . . . . . . . . . . . . . . . . . . . . . . . . 11

A. Petitioners Have An Ongoing Personal

Stake In Representing The Class . . . . . . . 11

B. The Class Has 90,000+ Members,

Not 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

C. The Panel’s Errors Will Undermine Class

Actions Unless Redressed . . . . . . . . . . . . . 13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ii

TABLE OF CITED AUTHORITIES

Page

CASES

American Pipe & Const. Co. v. Utah,

414 U.S. 538 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Bowen v. City of New York,

476 U.S. 467 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Cameron-Grant v.

Maxim Healthcare Servs., Inc.,

347 F.3d 1240 (11th Cir. 2003) . . . . . . . . . . . . . . . . . . . 9

Coopers & Lybrand v. Livesay,

437 U.S. 463 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Culver v. City of Milwaukee,

277 F.3d 908 (7th Cir. 2002) . . . . . . . . . . . . . . . . . . 9, 10

Deposit Guaranty National Bank v. Roper,

445 U.S. 326 (1980) . . . . . . . . . . . . . . . . . . . 4, 7, 8, 9, 11

Genesis Healthcare Corp. v. Symczyk,

569 U.S. 66 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Jin v. Shanghai Original, Inc.,

990 F.3d 251 (2d Cir. 2021) . . . . . . . . . . . . . . . . . . . 9, 10

iii

Cited Authorities

Page

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Lusardi v. Xerox Corp.,

975 F.2d 964 (3d Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . 9

Mann Const., Inc. v. United States,

86 F.4th 1159 (6th Cir. 2023) . . . . . . . . . . . . . . . . . . . . 3

Medellin v. Shalala,

23 F.3d 199 (8th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . 12

Reed v. Heckler,

756 F.2d 779 (10th Cir. 1985) . . . . . . . . . . . . . . . . . 9, 10

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Summers v. Earth Island Institute,

555 U.S. 488 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

U.S. Parole Comm’n v. Geraghty,

445 U.S. 388 (1980) . . . . . . 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11

1

ARGUMENT

The Secretary’s1 Brief in Opposition (“Opp.”) cannot

overcome Petitioners’ three reasons why review should

be granted:

• The Panel’s Decision defies this Court’s holding

in U.S. Parole Comm’n v. Geraghty, 445 U.S. 388

(1980), that named plaintiffs in a class action retain

an Article III interest in representing the class

sufficient to appeal a denial of class certification

even if their individual claims are made moot after

that denial. To let the Decision stand would reward

disregard of this Court’s precedent and erode the

longstanding principle that lower courts must follow

such precedent unless this Court holds otherwise.

• The Panel’s Decision intentionally creates a circuit

split, as the Secretary concedes, which, unless

resolved, will leave one law for class actions brought

in the D.C. Circuit, including many against the

federal Government, and another for everywhere

else.

• The Panel’s Decision imperils the class action

device by allowing defendants, including the federal

Government, to negate standing by picking off

named plaintiffs over their objection by paying their

individual claims.

In suggesting this case is not the right vehicle for correcting

these fundamental errors, the Secretary mistakenly

1. This Reply uses terms defined in the Petition.

2

assumes a) that Petitioners have no continuing personal

stake in the litigation, when they retain an independent

stake in representing the class and where their counsel

retains a contingent fee interest in the outcome; b) that

only 17 class members have possible claims, when many

thousands indisputably do, because the filing of a class

action suspends the statute of limitations for all pending

claims of class members as of the filing date, and c) that

the case is unimportant because the Government changed

its policy (prospectively only), which failed to remedy

the harm from its 10-year practice (from 2012-2022) of

denying Medicare CGM coverage for Type 1 diabetics on

the specious ground that CGMs were not primarily used

for a medical purpose.

The Panel’s Intentional Disregard Of Geraghty Warrants

Review

The Secretary’s Opposition reinforces the importance

of granting review. The Secretary erroneously presumes

Geraghty does not reflect current law. Because it does

unless this Court holds otherwise, the Panel made a

grievous error, which will have an outsized impact negating

the viability of class actions, particularly those against the

federal Government, and should be immediately rectified.

Geraghty recognizes that named plaintiffs in class

actions have two Article III interests: first, in their

individual claim and, second, in representing absent

members. 445 U.S. at 402. The Panel erroneously declared

that Geraghty’s recognition of this second interest does

not reflect current law. The Secretary strives to identify

grounds for letting this erroneous ruling stand. None

provide any basis for denying review.

3

The Panel’s holding that Petitioners lack standing to

appeal the class certification denial because judgment

was subsequently entered in their favor conflicts with

Geraghty’s holding that “a proposed class representative

who proceeds to judgment on the merits may appeal denial

of class certification.” 445 U.S. at 399 (emphasis original).

The Secretary posits that Geraghty concerned mootness,

while Petitioners’ claims were satisfied through payment,

yet this demonstrates no meaningful distinction because

payment is one way to create mootness. E.g., Mann Const.,

Inc. v. United States, 86 F.4th 1159, 1163 (6th Cir. 2023)

(IRS refund and abatement of penalties mooted refund

claim). Geraghty’s reasoning applies to both situations.

The Secretary erroneously argues that Panel’s

Decision does not conflict with Geraghty because this

Court’s recognition of a “right to have a class certified if

the requirements of the Rules are met,” allegedly “has

been undermined by subsequent case law.” (Opp. 10).

That premise confirms that the Panel’s Decision conflicts

with Geraghty. Moreover, it presumes the Panel correctly

disregarded Geraghty’s holding, which assumes the

erroneous answer to the question Petitioners are asking

this Court to decide.

Geraghty recognized that “[a] plaintiff who brings

a class action presents two separate issues for judicial

resolution. One is the claim on the merits; the other is

that he is entitled to represent the class.” Id. at 402

(emphasis added). Geraghty stressed these are distinct

Article III interests. Geraghty explained that “‘a district

court’s final judgment fully satisfying named plaintiffs’

private substantive claims would preclude their appeal

on that aspect of the final judgment; however, it does not

4

follow that this circumstance would terminate the named

plaintiffs’ right to take an appeal on the issue of class

certification.’” Id. (citing Deposit Guaranty National

Bank v. Roper, 445 U.S. 326, 333 (1980)). Geraghty’s

recognition that named plaintiffs retain this interest even

after their individual claims were “fully satisfied” shows

they need not have their own ongoing economic interest

to have standing to appeal a class certification denial, as

the Panel erroneously held.

The Secretary acknowledges that Geraghty grounded

the named plaintiff ’s standing in the relation-back

principle, a traditional Article III concept. (Opp. 11).

Under that principle, “when a District Court erroneously

denies a procedural motion, which, if correctly decided,

would have prevented the action from becoming moot,

an appeal lies from the denial and the corrected ruling

‘related back’ to the date of the original denial.” 445 U.S.

at 404 n.11. Applied here, Petitioners had standing when

the District Court denied class certification, because the

Secretary only agreed to pay Petitioners’ claims and

moved for summary judgment after certification was

denied. 2

Instead, the Secretary argues the principle does not

apply because Geraghty left unresolved whether named

plaintiffs who settle their individual claims retain standing.

(Opp. 11) (citing Geraghty, 445 U.S. at 404 n.10). This is

a non sequitur: Petitioners did not settle their claims;

judgment was entered in their favor over their objection.

2. In Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75

(2013), this Court relied on Geraghty’s relation-back analysis to

distinguish class actions from FLSA collective actions.

5

The relation-back principle is particularly relevant

to standing, which considers a plaintiff’s interest when

suit commences. See Arizonans for Official English

v. Arizona, 520 U.S. 43, 68 n.22 (1997). Nevertheless,

the Secretary argues that Geraghty should only apply

where claims are “inherently transitory,” such as where

trial courts lack time to rule on class certification before

mootness occurs. (Opp. 9) (citing 445 U.S. at 397). Yet

Geraghty rejected this limitation, holding “the class action

aspect of the mootness doctrine does not depend on the

class claim’s being so inherently transitory that it meets

the ‘capable of repetition, yet evading review,’ standard.”

Id. at 398 n.6 (citation omitted).

Separate from the relation-back principle, Geraghty

held that a named plaintiff has an Article III stake in

representing the class under the “Private Attorney

General” concept, noting the benefits that a named

representative receives “generally are byproducts of

the class-action device.” 445 U.S. at 403. This belies the

Secretary’s contention that Petitioners would not benefit

directly if class members were fully paid, as that would

fulfill their mission as class representatives.

While the Secretary characterizes the denial of class

certification as a “bare procedural violation divorced from

any concrete harm,” (Opp. 11), Geraghty held otherwise:

The purpose of the ‘personal stake’ requirement

is to assure that the case is in a form capable

of judicial resolution. The imperatives of a

dispute capable of judicial resolution are

sharply presented issues in a concrete factual

setting and self-interested parties vigorously

6

advocating opposing positions. We conclude

these elements can exist with respect to the

class certification issue notwithstanding the

fact that the name plaintiff’s claim on the merits

has expired.

445 U.S. at 403. 3

Geraghty reaffirmed Coopers & Lybrand v. Livesay,

437 U.S. 463, 469-70 (1978) (cited 445 U.S. at 399-400),

where this Court rejected the necessity of interlocutory

appeal as of right for class certification denials because of

the “prospect of prevailing on the merits and reversing”

a class certification denial. The Panel Decision eliminates

this prospect.

Review should be granted to correct the Panel’s

departure from this Court’s controlling precedent in

Geraghty.

3. The cases the Secretary cites to argue that Geraghty

no longer reflects current law do not concern appeals of class

certification denials. See Opp. 11-12 (citing TransUnion LLC

v. Ramirez, 594 U.S. 413, 433-39 (2021) (finding subset of class

suffered no concrete injury and lacked standing); Spokeo, Inc.

v. Robins, 578 U.S. 330, 338-43 (2016) (remanding standing

determination where record left unclear whether procedural

violation caused named plaintiff concrete injury); Summers v.

Earth Island Institute, 555 U.S. 488, 495 (2009) (environmental

group member could not show particular timber sale which

threatened injury, precluding standing); Lujan v. Defenders of

Wildlife, 504 U.S. 555, 562-63 (1992) (environmental group showed

no risk of imminent harm, precluding standing).

7

The Panel Misconstrued This Court’s Decision In Roper,

Further Supporting Review

The Secretary tries to drive an illusory wedge

between Geraghty and Roper, wrongly suggesting the

latter requires a named plaintiff to retain a personal

interest separate from the interest representing the class

to appeal a class certification denial. This ignores that

they were companion cases, decided the same day and that

Geraghty relies heavily on Roper. Read correctly, Roper

holds that an individual economic interest is sufficient to

support standing to appeal certification denials but not

required. Otherwise, as here, defendants can sequentially

pick off named plaintiffs by paying their individual claims.

Roper emphasized that “a district court’s ruling on

class certification is often the most significant decision

rendered in these class action proceedings.” 445 U.S. at

339.

To deny the right to appeal simply because the

defendant has sought to “buy off” the individual

private claims of the named plaintiffs would

be contrary to sound judicial administration.

Requiring multiple plaintiffs to bring separate

actions, which effectively could be “picked off”

by a defendant’s tender of judgment before an

affirmative ruling on class certification could

be obtained, obviously would frustrate the

objectives of class actions.

Id. at 339.

Geraghty echoed this, stating: “And today, the Court

holds that named plaintiffs whose claims are satisfied

8

through entry of judgment over their objections may

appeal the denial of a class certification ruling.” 445 U.S.

at 400. To let the Panel Decision stand would do what

Geraghty and Roper forbid by foreclosing Petitioners’

right to appeal because the Secretary “picked off” their

individual claims.

Roper recognized there are broad interests “to be

considered when questions touching on justiciability

are presented in the class-action context,” including

the named plaintiffs’ “right ... to employ in appropriate

circumstances the procedural device of a Rule 23 class

action to pursue their individual claims,” along with a

“separate consideration, distinct from [named plaintiffs’]

private interests”––“the responsibility of named plaintiffs

to represent the collective interests of the putative class.”

445 U.S. at 331.

Geraghty held that the interest in representing the

class was the same in both cases, stating that “Geraghty’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.” Id. at 401. Additionally,

both decisions relied on the private attorney general

concept in addressing standing, recognizing that the

financial incentives offered to the legal profession by class

actions under Rule 23 “[are] a natural outgrowth of the

increasing reliance on the ‘private attorney general’ for

the vindication of legal rights.” 445 U.S. at 338.

Finally, the Secretary suggests Roper is distinguishable

from Geraghty because Roper held that a fee-shifting

arrangement was sufficient to establish the named

plaintiff’s continued economic interest in representing

9

the class. (Opp. 6, 16). However, the Panel rejected that

fee-shifting arrangements, alone, can support standing.

(Pet.App.9a). Thus, if the Panel Decision stands, the

D.C. Circuit will not apply Roper as even the Secretary

recognizes it should.

This Court Should Resolve The Circuit Split That The

Panel Decision Creates

Granting review will resolve the conflict the Panel

Decision intentionally creates with Jin v. Shanghai

Original, Inc., 990 F.3d 251 (2d Cir. 2021), Reed v. Heckler,

756 F.2d 779 (10th Cir. 1985), Culver v. City of Milwaukee,

277 F.3d 908 (7th Cir. 2002).4 The Panel’s Decision is a

rogue outlier that should not be left enforceable in the

D.C. Circuit.

By incentivizing defendants to pick off named

plaintiffs, the Panel’s Decision makes it easier to

thwart appeals of denials of class certification. This will

disproportionately affect class actions against the federal

Government, which are often filed in D.C. District courts.

Because federal agencies often apply policies nationally,

the Panel’s error will also have nationwide repercussions.

Jin is recent and true to Geraghty and Roper. There,

the Second Circuit held a named plaintiff could appeal

denial of class certification despite having no ongoing

financial interest because he had already obtained

4. As the Petition notes, both Cameron-Grant v. Maxim

Healthcare Servs., Inc., 347 F.3d 1240, 1245-49 (11th Cir. 2003),

and Lusardi v. Xerox Corp., 975 F.2d 964, 975-80 (3d Cir. 1992),

applied Geraghty to hold that named plaintiffs lacked standing to

appeal and also are in conflict. (Pet. 33, 35).

10

damages, attorney’s fees and costs. 990 F.3d at 259. The

court reasoned, “neither we nor the Supreme Court have

required that to satisfy personal stake in the context of a

named plaintiff appealing the denial of class certification

following a favorable judgment on the merits at trial.”

Id. It found that plaintiff had a personal stake “akin to

the interest of a private attorney general that sufficed in

Geraghty.” Id. The Secretary suggests Jin is inconsistent

with “modern standing doctrine,” (Opp. 14), another way

of saying it correctly followed Geraghty.

The Secretary acknowledges that Reed conflicts

with the Panel’s decision but tries to distinguish it as

extending Geraghty. To extend Geraghty, Reed first had

to accept it as good law. Moreover, the alleged “extension”

was to circumstances where named plaintiffs received a

favorable judgment from an agency. So here, the Secretary

agreed to pay Petitioners’ claims and moved for summary

judgment in their favor.

Culver permitted a named plaintiff whose individual

claim was inadequate and moot to appeal decertification.

277 F.3d at 910. The Secretary argues that the mootness

of named plaintiff’s claim there makes Culver inapplicable,

because Petitioners’ claims were paid, an argument

refuted above.

This Court Should Remove The Threat The Panel Decision

Poses To Class Actions.

The Court should grant review to negate the critical

danger the Decision poses to the viability of the class

action device. If the Decision stands, it will imperil all

class actions by providing defendants (especially the

Government) with a blueprint of how to terminate a class

11

action over named plaintiffs’ objections: pay the named

plaintiffs and move for summary judgment on their claims

and, if they are replaced, do likewise with every successor.

Fee shifting arrangements would not prevent this, and

even if they could, a defendant could circumvent this by

specifying an intent to pay fees in any motion or offer of

judgment, eliminating the prospect of fee recovery as an

ongoing economic interest.

This Is The Right Case To Resolve The Questions Presented.

The Secretary urges this Court to ignore the Panel’s

disregard of this Court’s precedent, the Panel’s knowing

creation of a circuit split, and its assault on the class

action device by suggesting this may not the right case

for remedying these issues. Because the Panel’s Decision

is the sole source of these problems, this is the right case

to resolve them.

A. Petitioners Have An Ongoing Personal Stake In

Representing The Class.

The Secretary erroneously reframes the question

presented as involving circumstances where “plaintiffs

disclaimed any continuing personal stake in the litigation.”

(Opp. (I)). Rather, consistent with Geraghty and Roper,

Plaintiffs argued they maintained an Article III interest

in representing absent class members that continued after

the Secretary obtained judgment for Petitioners after

picking off their individual claims over their objection.

While the Secretary argues that Petitioners had no

fee-sharing arrangement (Opp. 6), this overlooks that

Petitioners’ counsel represents the entire class under a

contingent fee arrangement, as generally occurs in class

actions. The Panel erroneously disregarded this.

12

B. The Class Has 90,000+ Members, Not 17.

To minimize this case’s importance, the Secretary

suggests that review be denied because the District

Court correctly found the class lacks numerosity because

only 17 possible class members exhausted administrative

remedies or sued within the statute of limitations. This

perpetuates a legal error that Petitioners directly

challenged on appeal, but the Panel never considered.

The class consists of 90,000+ Type 1 diabetics whose

claims for CGM coverage were denied between 2012 and

2022. In denying class certification, the District Court

improperly considered the above “affirmative defenses,”

even though the Secretary, whose burden it was to plead

defenses, pleaded none. The District Court prematurely

and erroneously found the affirmative defenses of

exhaustion and limitations would bar all claims that

had not reached the District Court. However, because

the Secretary made false representations to a large

percentage of the class about why claims were denied,

equitable estoppel could have negated these defenses

even had they been properly raised. See Bowen v. City

of New York, 476 U.S. 467 (1986) (holding “courts may

excuse a beneficiary’s failure to exhaust”). Moreover,

the commencement of a class action suspends the statute

of limitations as to all class members, see American

Pipe & Const. Co. v. Utah, 414 U.S. 538, 553-54 (1974),

meaning the class properly includes the many thousands

of Medicare claimants whose CGM claims were pending at

any level of Agency review when suit was filed. Medellin v.

Shalala, 23 F.3d 199, 202-03 (8th Cir. 1994). The District

Court had no discretion to find otherwise.

13

C. The Panel’s Errors Will Undermine Class Actions

Unless Redressed

The Secretary cites Judge Pillard’s concurrence in

denial of rehearing that HHS’ 2022 policy change means

this case will have only limited precedential impact, yet

this was incorrect. First, it ignores the negative impact

that leaving the Panel’s errors unredressed would have on

all future class actions in federal court. Second, it ignores

that there are 90,000+ class members whose CGM claims

from 2012-22 remain unpaid here whose injuries deserve

redress. Class actions routinely address past rather

than ongoing harm. Moreover, virtually all diabetic class

members lack the resources to pursue individual Medicare

appeals if denial of certification here stands.

CONCLUSION

This Court should grant the Petition.

Respectfully submitted,

A ndrew C. Gresik

Foley & Lardner LLP

150 East Gilman Street,

Suite 5000

Madison, WI 53703

James Pistorino

Parrish Law Office

788 Washington Road

Pittsburgh, PA 15228

David B. Goroff

Counsel of Record

Foley & Lardner LLP

321 North Clark Street,

Suite 3000

Chicago, IL 60654

(312) 832-4500

dgoroff@foley.com

Counsel for Petitioners