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Case number 23-7042, Anthony D. Givens et al at Belens versus Muriel Bowser gained her official capacity as mayor, Washington, D.C.

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et al.

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Mr. Belen for the at Belens, Mr. Bowe for the Appellates.

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Proceed, Your Honors.

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Good morning, Your Honors.

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My name is Aton Belen and I'm the attorney for the appellants, Muriel, Anthony Givens, Deborah Bowser and Eugene P. Givens.

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Your honor, first I'm going to deal with the mootness issue.

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The district court aired when it found that the appellants at Pee-mee claims were moot.

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As a result of the defendants admitted violations of the Pee-mee rules, Ms.

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Givens, Eva Mae Givens, of whom the appellants are the successors, was forced to pay thousands of dollars to her nursing home care that the defendants later admitted she was not required to pay.

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Those monies have never been paid back to Ms.

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Givens.

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or to her successors.

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And therefore, there are still un-remedied damages that she and the appellants have suffered.

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The fact that the defendants belatedly paid the nursing homes monies after the appellants had already paid them monies does not change that result.

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Again, the appellants still suffer the damages as a result of those PMI violations.

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Now, moving on to the fair hearing timeliness claims, Your Honor, these claims satisfy the inherently transitory exception for mootness.

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First of all, no one contests that they satisfy the first prong for the mootness test, that the claims are inherently transitory and a district judge would not have time to rule on an issue of class certification before the case would become moot.

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Nobody can test that, and that's what the lower court found.

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It's really on the second part of the test

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whether the class members retain a live claim at every stage of the litigation.

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Now, the first amended complaint and the proposed second amended complaint say that these violations happened repeatedly.

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The first amended complaint says more than 40 times.

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The second amended proposed second amended complaint says it happened many, many more times.

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And under this course- That complaint's not before us.

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It is not before you, except for the, upon the consideration of whether the district,

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district judge.

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Okay.

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All right.

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Okay.

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Well, this is for the 40 number.

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Um, your honor, I will admit out front.

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It was just it was an allegation.

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There was no way to.

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What do you mean by allegation?

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There was no way.

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There was no way to prove or disprove.

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It was a number.

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We just alleged your honor upon information and belief.

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What information?

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Well, from our discussions with people, we believed that this had happened many times to Medicaid recipients or applicants in the District of Columbia.

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But no, there is no specific fact that the appellants learned where they had actual numbers.

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What were you discussing this with?

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A number of practitioners.

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A number of practitioners?

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Yes.

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How many?

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And how many they said they knew about?

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Your honor, it was sort of a general discussion.

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There was no, in other words.

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So there's nothing concrete at all about the 40.

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There's nothing concrete at all about the 40.

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And the reason for that.

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Some volume is necessary for your allegation that this is going to have enough volume that there'll always be a plaintiff who has a live claim.

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I understand, your honor.

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But under this court's precedence, when the information is peculiarly within

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the possession of the defendants, which is the case here, you're allowed to allege it on information and belief.

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You still can't just make up it.

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Well, in this sort of circumstance, Your Honor, I believe that because federal law prohibits disclosure of any Medicaid information about Medicaid people, this is a special case where we have a federal law and federal regulation.

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Well, gee, the names.

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I assume there's like the D.C.

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FOIA law you could put in and say how many.

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Tell us how many.

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All right.

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Records on how many were delayed.

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I understand, Your Honor.

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Then I'll move on.

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You could get more information.

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Possibly.

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It's possible.

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And when the proposed amended complaint went up to hundreds and hundreds, was that based on more discussion?

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No, it was not based on more discussion.

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You decided to multiply it?

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Not as simple as that, but anyway.

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What did happen?

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If it wasn't as simple as that, how did you go to hundreds and hundreds?

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No, Your Honor, it's basically as simple as that.

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I'm sorry.

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But I'll move on from that.

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I'll move on from that, which is why we followed the proposed second amended complaint.

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In terms of the in terms of the in terms of the claim with the Pini claims, we actually have statistics from the from from the defendants themselves that show that they have have not been able to render decisions and hearings which include Medicaid fair hearings within 120 days.

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percent Medicaid fair hearings are of that group of hearings your statistic was about we cannot tell you that your honor well the percentage the percentage was in some of the years was up to 75 percent of the cases they didn't do with 120s I don't know percentage

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The of the Medicaid fair hearings were you had a group of hearings where they weren't doing hearings in 120 days within that big group.

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We don't know what percentage for Medicaid ones.

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No, we don't.

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There was no information like that available your honor.

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I believe that it renders plausible though.

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The question is whether the allegations render plausible.

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the claim that they did not make fair hearing decisions within nine Medicaid fair hearing decisions in 90 days.

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And I would submit.

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Let me try to understand what just colloquy here.

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If it's 40 or whatever number, you don't know what percentage that is.

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You don't know the denominator.

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Is that correct?

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of specifically Medicaid fair hearings, no, your honor, but of OAH hearings, which include fair hearings, yes.

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And that satisfies the minimum, at least the minimum- What percentage is that?

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I'm sorry?

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And what percentage is that?

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Oh, some of them were up to 50, 40, 50%.

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In fact, the- I'm getting this.

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You're saying of a subset, of some certain type of hearings, the percentage for delayed is what?

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Varied over the years.

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Could be as up to 70%.

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Could be 50%.

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All the details are listed in the brief, Your Honor.

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We cited the very statistics from OAH.

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So what we basically have here- 50% of the time that happens, what basis is there for thinking it's a policy or practice?

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Well, Your Honor, I think- It's just slipping up.

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I don't think 50% is slipping up.

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I think if you look at the case law, Your Honor, something like 50%, 60%, 70% is more than enough to say that there is a policy.

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What if it's just that they're backlogged?

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They're not allowed to be, Your Honor.

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The case law specifically says that they must follow the timeline.

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So they can't be.

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50% is not acceptable.

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20% is not acceptable.

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They can't be in these.

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But just to say, some percentage don't get heard on time, and therefore it's a policy or practice

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I think it will wash, Your Honor.

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Whatever the percentage.

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Not whatever the percentage, but if you look at the percentages in these cases, they were trying to get to- We don't know those percentages are talking about Medicaid hearings.

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It's some percentage of that percentage.

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I think it's a fair inference.

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Again, Your Honor, we do not.

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How is it a fair inference if we don't have any sense of what the percentile of all these OAH hearings are attributable to Medicaid claims?

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Because we don't have the burden of proof here, Your Honor.

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All we have to do is show that it's a plausible claim.

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I'm going to try again to know it's plausible.

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We have to have some, plausible just doesn't mean I said something that isn't

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necessarily foreclosed by facts.

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What it means is there has to be some basis.

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And so if you've got, if you were to look across the federal government and say, here's every ALJ hearing that they do, and X percentage of that, you know, 60% of them are not on time.

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Therefore, it's plausible to believe that Nuclear Regulatory Commission ALJ decisions are not on time at a material percentage.

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You couldn't do that because there's just so many different subject matters covered.

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And so the same thing here, and maybe I don't know enough about the district, but I don't know how many different categories

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of subject matters go into these OAH hearings.

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And without knowing that, which should be something you could find out, without knowing what percentage of those hearings or even how many different subject matters they cover, then I don't know how we get to plausibility.

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Your Honor, it doesn't have to be plausibility, as you know.

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It doesn't have to be more likely than not.

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I'm sorry.

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It does not have to be.

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I'm saying more likely.

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No, I know.

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I'm saying plausible.

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I, Your Honor, I understand your position.

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Our position is... I don't have a position, I have a question.

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Okay, so my answer is that I believe that it is plausible when you have these high percentages of failures among their hearings.

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It's reasonable to presume that the subset is also violent.

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If Medicaid hearings were 5% of that total, would it still be plausible?

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Sure.

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I mean, as the Supreme Court said in Rawlinson in 1977, where they took it, where they made

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determination saying that certain certain issues that were shown nationwide about people's health, they decide that that could be said about the people of Alabama as well.

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And the court felt that that was a reasonable thing.

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I think it was on summary judgment, even a reasonable inference there.

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And here we're not on summary judgment.

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And here we couldn't get the discovery.

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And I think that this does pass the plausibility test, because given the terrible statistics that they have, it renders it plausible.

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Does it render more likely than not?

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No, not necessarily.

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No one's saying you have to do that.

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I understand, Your Honor.

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So what theory of municipal liability are you pursuing?

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It wasn't clear to me.

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The theory of municipal liability is that they had these reports.

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They've known about these things.

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And the heads of the agencies haven't done anything.

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In fact, in their own reports, they say, we're trying to get to 50%.

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They haven't resolved this.

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Even their goals are below what would be permissible.

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Their Medicaid offices?

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I'm sorry, Your Honor.

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Whose report?

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It was the report of OAH, the Office of Administrative Hearings.

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And they said themselves, year after year, we're trying to get to 50%.

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We're trying to get to 50% on time.

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So we've got sort of four theories of municipal liability.

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So there's adopted a policy.

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You're not alleging they've formally adopted a policy of delay.

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The decision was taken by a policymaker.

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You're not alleging that.

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No.

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that there's actions are so consistent over time that supervising policymakers must have known.

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That's the one.

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Or should have known of a risk of violations of law, but showed deliberate indifference.

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You're in number three.

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Number three.

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Yes, your honor.

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Because of the because they themselves and they're in your first amendment complaint to identify that it's that third theory of minnow liability.

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I don't identify that legal theory, but the president says that's the end of the case.

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Says you have to identify.

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Well, as I understand it, the president says you have to allege facts that can be interpreted as a theory.

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But the Supreme Court has ruled that you don't have to have a particular legal theory in one of the cases I cited from 2014, Your Honor.

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You have to have the facts that, if accepted or is plausible, would render the... I think this is blue.

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If the plaintiff fails to identify the type of municipal policy at issue,

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Court would be unable to determine, as required by Iqbal's second step, whether the plaintiff had provided plausible support for her claim.

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Although the court could try to surmise which area of municipal liability has the strongest support in the complaint, this is not our role.

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It therefore follows that to state a valid claim against a municipality under Section 1983, a plaintiff must plead the elements of the relevant type of municipal liability.

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I think the issue is, Your Honor, and when it gets to the second, I see that my time has run out.

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Did you do that?

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Yeah, I did.

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We did it, certainly, I believe, in the proposed Second Amendment complaint, where we talk or we cite those statistics.

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Second Amendment?

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The proposed Second Amendment complaint, which we only get to.

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Your Honor, the review now doesn't have that.

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I would say that that's correct, Your Honor.

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But the second, proposed Second Amendment complaint, and the District Court abuses discretion by not allowing us.

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May I continue?

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I see my time is up.

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The district court abuses discretion by not allowing us to file the motion to amend the second complaint.

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Let's just talk about, first of all, whether it was proper to dismiss the first one as moot.

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I'm sorry.

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I think given the inherently transitory exception to the hoonest doctrine and the statistics,

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that show that OAH has consistently failed to render hearing decisions within 120 days.

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That that's enough at this pre-discovery stage of the case to allege that there will be continuing to be violations, class members who are suffering violations of the fair hearing timeliness.

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Fair hearing timeliness matters.

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You don't dispute that this Givens individual claim for injunctive relief has moved?

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No, that is mooted this time.

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But a claim.

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For damages.

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Yeah, and the damage claim is under the PME side of this, not the fair hearing side.

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Right.

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But.

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And then so her injunctive claim is moot.

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And then as I read your proposed First Amendment complaint, you want to substitute in her children as the class representatives?

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We made a motion to substitute class representatives, which was great.

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And it was the children as the class representatives.

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Well, we haven't made a classification motion yet, but that's what we anticipate, Your Honor, that the children will be class representatives.

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Have they ever been denied a hearing?

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No, but they're the successors in interest, and under DC- I know, but you just said her injective claim is moot, so I'm trying to figure out who can be a class representative for the injunctive claim.

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Well, successors to- Successors to a moot claim do not have a claim.

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If it satisfies one of the narrowly, it satisfies one of the exceptions to moodness, I believe they do, Your Honor.

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So we believe that it does satisfy the exception to moodness.

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I agree.

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It's a mood claim.

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A person doesn't have their own claim if it's mood.

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But these people are allowed to assert under DC law, which is what you look to, to see what sort of... They've never had a claim.

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They are allowed to adopt it as successors, as the case law says.

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DC specifically allows successors to do Section 1983 claims.

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There's a case law that says that.

[00:15:20] Speaker 06:
A case law that says successors who themselves have never experienced the injury for which injunctive relief is sought.

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can nonetheless be class representatives on an injunct, I'm only talking about the hearing claim, the injunctive claim at this point, can be adequate class representatives even though the claim to which they succeeded is moot and they have never experienced the injury.

[00:15:49] Speaker 02:
Well, we haven't made a class certification motion yet, Your Honor, so I think that would be a bit premature.

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What we're asking for is to be able to file a proposed second amended complaint.

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So I actually, I have not researched that, but I do believe that they can bring it, just like you can have a headless class bring when there's no one who has any more injunctive claim.

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There are many situations where that happens.

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A person who succeeds the interest of another party doesn't, hasn't suffered damages either.

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And they can also, they can also bring a claim if the executor was not related to them.

[00:16:21] Speaker 06:
Maybe different.

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Maybe not.

[00:16:23] Speaker 06:
Maybe.

[00:16:24] Speaker 02:
I'm not aware.

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I would just say, Your Honor, I'm not aware of any cases that make that distinction.

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And I don't really see a principled basis for making a distinction between an executor bringing a damaged claim that they were never damaged for qua individual against an individual, an executor bringing an injunctive claim for which they never suffered any relief.

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I mean, under that theory, no executor could bring any claim unless there were somehow beneficiaries of the claim.

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state, but they can't get an injunction.

[00:16:52] Speaker 02:
But an executor doesn't benefit from that money, Your Honor.

[00:16:55] Speaker 06:
No, but it's their responsibility to get the money into the estate, legal responsibility.

[00:16:59] Speaker 06:
Anyhow, do I have any more questions for my colleagues?

[00:17:00] Speaker 03:
I have one question on the dismissal with prejudice or without prejudice.

[00:17:04] Speaker 03:
I think dismissals for lack of jurisdiction are generally without prejudice.

[00:17:11] Speaker 03:
You think DC both seem to think that this was a dismissal with prejudice, is that right?

[00:17:16] Speaker 02:
Well, that's because besides the issue of mootness, the court also went on to decide that there was no pattern, that we hadn't sufficiently alleged a pattern.

[00:17:23] Speaker 02:
And so they actually, the judge, Judge Sullivan actually ruled on, even though I agree with your honor, that he didn't have to once he found it moot, he went on to rule that as a substantive matter, the claim didn't, the complaint didn't state a claim.

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Was it possible that the claims that

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If some claims were correctly dismissed for moodness, then they should have been dismissed without prejudice.

[00:17:49] Speaker 03:
And then if some claims were not moot but were correctly dismissed under 12b6, the presumption would be they were dismissed with prejudice.

[00:18:00] Speaker 02:
I agree, Your Honor, the court below did not say it did not dismiss it with prejudice when we argued, when we made our motion for re-argument.

[00:18:07] Speaker 03:
I guess if we find that some of the claims are moot, would it be useful to remand to the district court to ask if the district court intended to dismiss those claims with or without prejudice?

[00:18:19] Speaker 02:
My client certainly would have no objection to that, Your Honor.

[00:18:22] Speaker 03:
You mean forfeit of the argument that there's a general rule that

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moodness dismissals are generally without prejudice?

[00:18:34] Speaker 02:
I don't think we forfeited it, Your Honor, because the judge, again, made substantive rulings.

[00:18:38] Speaker 02:
We had to assume it was with prejudice.

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If it were not, the moodness may have been without prejudice.

[00:18:43] Speaker 02:
But then the judge went on and made substantive rulings saying that, as a substance matter under 12b6, we had to, it was with prejudice.

[00:18:54] Speaker 02:
Now, whether it was,

[00:18:55] Speaker 02:
whether if he had specifically said it was with prejudice, vis-a-vis the mootness argument, that's another thing, but the judge never said that.

[00:19:03] Speaker 02:
But he did say, he did make a decision based on- He said everything was moot.

[00:19:08] Speaker 02:
He did.

[00:19:09] Speaker 06:
In the alternatives.

[00:19:10] Speaker 02:
Yeah, he did.

[00:19:10] Speaker 06:
That's what you're supposed to do if you don't have a jurisdiction, you're not supposed to go on and talk about the merits.

[00:19:15] Speaker 02:
I agree with you, Your Honor, but that's exactly what the judge did.

[00:19:17] Speaker 06:
I understand.

[00:19:18] Speaker 02:
And so we have to assume that the judge was making alternative claims,

[00:19:23] Speaker 02:
and that he dismissed this with prejudice based on those things.

[00:19:26] Speaker 02:
We thought he was wrong on the issue of just moonness, but then he went on to do the other, the substantive decision.

[00:19:34] Speaker 02:
So it was a dismissal with prejudice on that.

[00:19:36] Speaker 02:
And so we believe that the court erred in doing so because there was a way that our client had to propose second amended complaint that was put before the court at the same time they filed a motion for substitution.

[00:19:49] Speaker 02:
The magistrate judge granted the motion for substitution for the purposes of filing objections to the magistrate judge's order, but did not grant, but held it in abeyance regarding our motion to amend.

[00:20:01] Speaker 02:
The district judge, we appealed, we objected to the district judge.

[00:20:05] Speaker 02:
District judge said, you lose.

[00:20:07] Speaker 02:
And when we went and made a motion for your argument based on 59E saying there was a motion to amend, he said, you can't do that because you never appealed the holding in abeyance by the magistrate judge

[00:20:18] Speaker 06:
I think we have all that.

[00:20:19] Speaker 06:
Okay.

[00:20:19] Speaker 06:
Thank you.

[00:20:20] Speaker 06:
We'll give you a couple minutes for rebuttal though.

[00:20:22] Speaker 06:
Thank you, Your Honor.

[00:20:30] Speaker 01:
Good morning, Your Honors.

[00:20:39] Speaker 01:
May it please the court, Russell Bogue for the District of Columbia.

[00:20:42] Speaker 01:
I'd like to start with what I take my friend to have conceded already this morning.

[00:20:47] Speaker 01:
The first is that there's really only two claims before this court.

[00:20:49] Speaker 01:
The first is the individual claim for damages or misgivings.

[00:20:53] Speaker 01:
The error in calculating your patient payability.

[00:20:55] Speaker 01:
And the second are the class B fair hearing claims.

[00:20:58] Speaker 01:
Now, on those, I take them to have conceded that there's essentially no basis for the number 40 in their First Amendment complaint, which, as Your Honor noted, is the only complaint in front of this court.

[00:21:11] Speaker 01:
We also take them to have conceded that they have no theory for no liability.

[00:21:16] Speaker 01:
Now, we think both of those are fatal for independent reasons.

[00:21:19] Speaker 01:
The simplest way to resolve this case is the mootness issue.

[00:21:23] Speaker 01:
It is my friend's burden to prove that there is an exception to mootness.

[00:21:27] Speaker 01:
We take them to have conceded that without the inherently transitory exception, their claims are moot.

[00:21:32] Speaker 01:
So they need to assure you that this exception applies.

[00:21:35] Speaker 01:
And we think they haven't come close to meeting that burden.

[00:21:38] Speaker 01:
They have to show, as they've mentioned, that there's a constant class of persons that are suffering fair hearing delays.

[00:21:45] Speaker 01:
The only factual allegation is that 40 such persons have suffered delays over the past three years.

[00:21:51] Speaker 01:
Now, that is a drop in the bucket in terms of how many hearings these come before these judges.

[00:21:56] Speaker 01:
There was some discussion about statistics.

[00:21:59] Speaker 01:
This is not in the record, but there are several hundred Medicaid fair hearing

[00:22:02] Speaker 01:
fair hearings every year and in terms of timeliness if your honors are concerned that there is some ongoing timeliness issue again this isn't in the record but just to give you some background to this the Office of Administrative Hearings for the District of Columbia goes in front of the Council for Performance Oversight every year and

[00:22:21] Speaker 01:
They answer questions about how timely they are, what their statistics are for the year.

[00:22:26] Speaker 01:
And just for fiscal year 21, the average to get a hearing in front of Medicaid Appeals Board was 50 days.

[00:22:33] Speaker 01:
And the number of days to reach final case resolution was 87 days.

[00:22:37] Speaker 01:
So that's well within the 90-day regulations.

[00:22:39] Speaker 01:
Obviously, in this case, there was an unfortunate delay in misgivings receiving a fair hearing.

[00:22:44] Speaker 01:
And obviously, there was an unfortunate delay.

[00:22:46] Speaker 05:
None of that is in our record.

[00:22:47] Speaker 01:
It's not a new record.

[00:22:48] Speaker 01:
I recognize that.

[00:22:48] Speaker 05:
This is in a report.

[00:22:49] Speaker 05:
Is it a public testimony?

[00:22:51] Speaker 01:
It's a public.

[00:22:52] Speaker 01:
You can look this up, and we're happy to provide briefing on this.

[00:22:55] Speaker 01:
I will say, we don't think this should turn on statistics.

[00:22:58] Speaker 01:
I mentioned this just to assure you in case you're worried that there is some ongoing delay that we're trying to dodge.

[00:23:03] Speaker 01:
That's not the case.

[00:23:04] Speaker 06:
The reason why there's a little different question.

[00:23:06] Speaker 06:
Sure.

[00:23:07] Speaker 06:
No one's accusing you of dodging anything.

[00:23:09] Speaker 06:
But they had this statistic about delays generally in office of administrative hearings.

[00:23:16] Speaker 06:
Correct.

[00:23:16] Speaker 06:
Is there publicly available information that, one, tells them what percentage of OAH hearings are Medicaid hearings?

[00:23:26] Speaker 06:
Is that something findoutable?

[00:23:28] Speaker 06:
I made that word up.

[00:23:29] Speaker 06:
Is that something that can be determined?

[00:23:32] Speaker 06:
And two, are there separate statistics anywhere as to time limits just as to Medicaid hearings?

[00:23:40] Speaker 06:
You just mentioned this testimony.

[00:23:42] Speaker 06:
Are these things that can be found by people

[00:23:45] Speaker 01:
As to the first question, I'm not sure.

[00:23:47] Speaker 01:
It could probably be backed into by looking at what the other hearing are the statistics for the other hearing.

[00:23:55] Speaker 01:
So in this report that I just mentioned, I apologize that it's not in the record.

[00:23:58] Speaker 01:
They go through statistics for various types of hearing, supplemental attrition assistance hearings, et cetera.

[00:24:03] Speaker 06:
So it's not all entirely within the control of the government, this information?

[00:24:06] Speaker 01:
It's not all entirely in the control of the government.

[00:24:08] Speaker 01:
And we'll just point out that these statistics aren't in their first amended complaint.

[00:24:12] Speaker 01:
So in our view, the only factual allegation you have here is that this happened 40 times over three years.

[00:24:17] Speaker 01:
So we think that's just not enough to carry their burden on that.

[00:24:20] Speaker 06:
On the misgivings damages claim,

[00:24:26] Speaker 06:
She says, district made a mistake.

[00:24:29] Speaker 06:
District or district mishandled my case, violated the law in doing so.

[00:24:34] Speaker 06:
And I've suffered out-of-pocket damages.

[00:24:37] Speaker 06:
I'm out $20,000-ish, period.

[00:24:43] Speaker 06:
Why is that claim moot?

[00:24:45] Speaker 06:
I'm not talking about whether she'll be able to recover or anything on the merits.

[00:24:48] Speaker 06:
I'm just asking about why that claim would be moot.

[00:24:52] Speaker 06:
She slash her estate are out of pocket $20,000.

[00:24:58] Speaker 01:
She may have a pocketbook injury, Your Honor, but mootness is also determined by whether or not there's any relief at this court, whether or not she's been provided the relief that she properly sought.

[00:25:08] Speaker 01:
Our argument is that.

[00:25:11] Speaker 06:
No.

[00:25:11] Speaker 06:
The relief she properly sought was recovery of out-of-pocket damages.

[00:25:15] Speaker 06:
It's a district that has tried to turn that into, oh, you wanted us to pay the facility where you were living.

[00:25:23] Speaker 06:
And then paid the facility.

[00:25:25] Speaker 06:
But her claim is I read the complaint as Thank you very much.

[00:25:30] Speaker 06:
You fixed your problem going forward.

[00:25:32] Speaker 06:
But I had to pay that 20,000 ish out of my pocketbook.

[00:25:38] Speaker 06:
And I am still out that money.

[00:25:41] Speaker 06:
That is

[00:25:43] Speaker 06:
Pocketbook injury like that is traditional type of injury.

[00:25:48] Speaker 06:
It's a live injury.

[00:25:49] Speaker 06:
It has not yet been reversed.

[00:25:51] Speaker 06:
Someone else has the money, but she has not been redraft.

[00:25:56] Speaker 06:
That injury has not been redressed for her or for her estate.

[00:26:00] Speaker 06:
So I'm having trouble understanding how that claim is moot.

[00:26:04] Speaker 01:
Sure.

[00:26:05] Speaker 01:
I'll get at this by trying to explain how we think this normally goes.

[00:26:08] Speaker 01:
And let me know if this is not responsive to your question.

[00:26:10] Speaker 01:
So our understanding of how these claims typically work is that money goes from, in this case, DHCF, the state agency, to the providers.

[00:26:19] Speaker 01:
That's how, when these errors are made and there is a claim that you haven't paid the provider enough, it goes from the district to the agency.

[00:26:26] Speaker 01:
And there are two reasons for that.

[00:26:27] Speaker 01:
The first is that that's how the Medicaid statute implementing regulations say it's supposed to go.

[00:26:32] Speaker 01:
that payments go from the state to the provider.

[00:26:35] Speaker 01:
And the second is practical reason, which is that providers build the district and we have existing relationships with providers.

[00:26:41] Speaker 01:
They're reimbursant.

[00:26:43] Speaker 06:
Okay.

[00:26:44] Speaker 06:
So eventually the district paid the nursing facility.

[00:26:47] Speaker 06:
How did that redress her out of pocket costs?

[00:26:51] Speaker 01:
Because we drew her claim as you made an error in paying the nursing facility.

[00:26:56] Speaker 01:
So one way of her saying, I'm paying too much is you're paying.

[00:27:00] Speaker 06:
My injury is thank you for giving someone else the money.

[00:27:04] Speaker 06:
That does not redress my $20,000 out of pocket loss.

[00:27:09] Speaker 06:
Well, that's what she's alleging.

[00:27:11] Speaker 06:
If they say that's what she's alleging, that would not be moved.

[00:27:14] Speaker 01:
Well, we think what she's saying there is the nursing homes haven't paid me back yet.

[00:27:18] Speaker 01:
No, we don't understand why that.

[00:27:19] Speaker 06:
I don't know why you get to say what she's thinking.

[00:27:22] Speaker 06:
Her complaint says, and you don't get to psychoanalyze it or say, here's what we would like it to look like.

[00:27:30] Speaker 06:
Here's traditional things.

[00:27:31] Speaker 06:
And normally that traditionally works because people don't die before they get the benefit of that money, you know, credited against future stays.

[00:27:40] Speaker 06:
But if she says in her complaint, I'm out of pocket this money, and today I am still out of pocket this money, it's not moot.

[00:27:49] Speaker 06:
Your arguments about traditional payment forms and stuff may go to the merits.

[00:27:55] Speaker 06:
But I don't understand how it makes it moot.

[00:27:58] Speaker 06:
Are you making a mootness argument or a standing redressability alone argument?

[00:28:03] Speaker 01:
We're making a mootness argument.

[00:28:04] Speaker 01:
We understand that.

[00:28:05] Speaker 06:
How is that moot?

[00:28:07] Speaker 01:
Because our understanding of what makes it moot is that if the relief, we understand that she's saying we're responsible for that money.

[00:28:14] Speaker 01:
Our response is we're not responsible.

[00:28:16] Speaker 01:
So asking us for that relief doesn't keep your claim live.

[00:28:20] Speaker 06:
We understand that she feels- Well, asking the district for relief from out-of-pocket costs doesn't keep a claim alive?

[00:28:25] Speaker 06:
I think that's exactly how these things work.

[00:28:28] Speaker 01:
Well, our understanding is how it works is you ask the district to correct the mistake that you allege, which is that we didn't pay them.

[00:28:35] Speaker 01:
We didn't pay the divider enough money.

[00:28:36] Speaker 06:
The mistake that she alleges was clearly, you know, fix it going forward.

[00:28:41] Speaker 06:
And two, I'm out of pocket.

[00:28:44] Speaker 01:
Right.

[00:28:45] Speaker 06:
He's still out of pocket.

[00:28:46] Speaker 01:
Right.

[00:28:47] Speaker 01:
And our response to that is we believe that she's out of pocket because the nursing homes haven't upheld their end of the bargain.

[00:28:53] Speaker 06:
Not that we have to be never pay that may be a merits argument, but she says wrong.

[00:28:58] Speaker 06:
I'm still out of you did it to me and I still have been redirected.

[00:29:03] Speaker 06:
You hurt me district, not the nursing home and you have not remedied my pocketbook injury.

[00:29:09] Speaker 06:
That is not a case that says that is a moot claim.

[00:29:14] Speaker 01:
We would point to Conservation Force, Your Honor, where they said that when you received the relief you sought.

[00:29:18] Speaker 01:
Now I understand.

[00:29:19] Speaker 06:
OK.

[00:29:19] Speaker 06:
So this all just turns on how we read the complaint.

[00:29:21] Speaker 06:
If we read the complaint as the relief she sought was, fix my pocketbook injury, you would agree there's no mootness.

[00:29:29] Speaker 01:
I think what we would add to that is if that's not really properly sought for the district, if that's not the type of relief that the district provides in these circumstances.

[00:29:36] Speaker 06:
That's the only state of claim to me.

[00:29:37] Speaker 06:
That doesn't sound jurisdictional.

[00:29:39] Speaker 01:
Sorry, say that.

[00:29:40] Speaker 06:
If you say that's not something you can get under the law, that sounds like failure to state a claim, not mootness, which is jurisdictional.

[00:29:49] Speaker 01:
Well, we read conservation force to say that if you've been provided the relief that you've sought, and we understand that she's saying she's seeking reimbursement.

[00:29:56] Speaker 06:
That case doesn't help you if that's not what she sought.

[00:29:59] Speaker 01:
Right.

[00:30:00] Speaker 01:
Her original allegation was you made a mistake in calculating my PME deduction.

[00:30:05] Speaker 01:
And so our response is we've now fixed that and we've made back payments.

[00:30:09] Speaker 01:
It's not just going forward.

[00:30:10] Speaker 01:
We've made back payments and that's standard operating procedure.

[00:30:13] Speaker 01:
And there's a reason for that, which is that we have preexisting relationships with these providers.

[00:30:17] Speaker 01:
We do not provide reimbursement in fact.

[00:30:19] Speaker 06:
But if the complaint says award misgivings, monetary damages, then that's what she's asking.

[00:30:29] Speaker 01:
Right.

[00:30:31] Speaker 01:
I guess our response is we never provide those.

[00:30:33] Speaker 01:
And so we read that to be a moot claim, because by shoehorning in her.

[00:30:37] Speaker 06:
You never provide those, so you think it's not a viable claimant law.

[00:30:41] Speaker 01:
We never provide reimbursement, is what I'm saying.

[00:30:43] Speaker 01:
And so what are.

[00:30:44] Speaker 06:
You may not under the Medicaid program, but I assume you have a judgment fund of some sort, at which point you can pay damages.

[00:30:49] Speaker 01:
Correct.

[00:30:50] Speaker 01:
That's right.

[00:30:50] Speaker 01:
Of course, we can always pay damages.

[00:30:53] Speaker 06:
So if she thinks awarding misgivings, and she has the class in there too, but monetary damages,

[00:31:00] Speaker 06:
an amount to be terminated trial.

[00:31:03] Speaker 06:
That's what the complaint says.

[00:31:04] Speaker 01:
Right, Your Honor.

[00:31:05] Speaker 06:
And we think that's a claim against the nursing home.

[00:31:08] Speaker 01:
I understand that, Your Honor.

[00:31:10] Speaker 06:
Yeah.

[00:31:13] Speaker 06:
Do you have a view?

[00:31:13] Speaker 06:
I'm sorry.

[00:31:17] Speaker 06:
You guys go ahead.

[00:31:20] Speaker 06:
I was going to that.

[00:31:20] Speaker 06:
You go ahead.

[00:31:22] Speaker 03:
If we hold that some of the claims were properly dismissed for mootness

[00:31:28] Speaker 03:
Do you think that we should read the district court to have dismissed them without prejudice?

[00:31:37] Speaker 01:
You know, this argument wasn't pressed by appellants.

[00:31:39] Speaker 01:
So if you believe that some claims were dismissed for mootness and you'd like to remand to the district court to clarify that dismissal, that's fine by us.

[00:31:48] Speaker 01:
Obviously, if they're moot, they'd have to find another person.

[00:31:50] Speaker 03:
That may be the best approach for that.

[00:31:53] Speaker 03:
A more aggressive approach would be.

[00:31:56] Speaker 03:
We just say, as a general matter, since claims for lack of jurisdiction are generally dismissed without prejudice, that we read the district court to have dismissed the moot claims without prejudice.

[00:32:10] Speaker 03:
Would you object to that?

[00:32:11] Speaker 01:
No, I wouldn't.

[00:32:15] Speaker 01:
Are there no further questions?

[00:32:16] Speaker 06:
Thank you very much.

[00:32:17] Speaker 01:
That's a good firm.

[00:32:18] Speaker 01:
Thank you.

[00:32:20] Speaker 06:
Mr. Bellin, we'll give you two minutes.

[00:32:23] Speaker 02:
Thank you.

[00:32:24] Speaker 02:
I just want to address the last question asked by Judge Walker.

[00:32:28] Speaker 02:
It's fairly, I think it's clear that the district court improperly dismissed on mootness with prejudice because it did not allow us.

[00:32:36] Speaker 03:
I think he just gave you what you wanted.

[00:32:38] Speaker 02:
Okay, so then I, you know what?

[00:32:39] Speaker 02:
Then I will stand on my briefs and I have nothing else to add.

[00:32:42] Speaker 03:
Let me ask a question along the lines of what Judge Millett and your opposing counsel were discussing on the complaint.

[00:32:53] Speaker 03:
Does the complaint allege that your client paid the nursing home?

[00:32:58] Speaker 03:
Yes, it does.

[00:33:00] Speaker 03:
I think that's probably the best inference of what it says, because it says she was required to pay it.

[00:33:07] Speaker 03:
And if she hadn't been required to pay it, she would have been able to pay off a pre-existing debt.

[00:33:12] Speaker 03:
I'm not sure it expressly says that she did pay it.

[00:33:18] Speaker 02:
Did she pay it?

[00:33:19] Speaker 02:
She did pay, your honor.

[00:33:20] Speaker 02:
And I think if you read it, the complaint in the light most favorable to my client, that's what it says.

[00:33:24] Speaker 02:
I think that's probably reasonable inferences.

[00:33:26] Speaker 02:
There are no other questions?

[00:33:27] Speaker 02:
No, no.

[00:33:28] Speaker 02:
I have a couple more questions.

[00:33:29] Speaker 03:
Oh, you do?

[00:33:29] Speaker 03:
OK, please.

[00:33:31] Speaker 03:
So do you agree that the Givens children were only parties for the limited purposes of objecting to the R&R?

[00:33:43] Speaker 02:
I understand that the magistrate judge

[00:33:48] Speaker 02:
granted the motion for substitution only for the purposes of the objections to the R&R.

[00:33:55] Speaker 02:
But he said he was going to only rule on the rest of the motion for substitution if and when the district judge made his determination on the case.

[00:34:06] Speaker 02:
So we moved to be included for all purposes.

[00:34:09] Speaker 02:
It was the magistrate judge who decided on his own to make it for limited purposes, which we say

[00:34:14] Speaker 02:
By the way, even though we didn't agree with it, it certainly wasn't within his discretion to do so.

[00:34:19] Speaker 02:
But what wasn't within the discretion of the district judge to say, oh, you didn't appeal that holding in abeyance, and therefore, I'm going to dismiss the entire complaint with prejudice and not hear your motion to amend.

[00:34:32] Speaker 02:
That was where the violation was.

[00:34:34] Speaker 02:
It was perfectly for the district judge to say, well, I'm dismissing it with prejudice because you didn't file an objection to the massively discretionary decision

[00:34:43] Speaker 02:
the magistrate judge to not decide part of a motion and to say that we should have filed a frivolous objection, which under the case law would have been is certainly not a sufficient basis to say that a case should be dismissed with prejudice.

[00:34:56] Speaker 02:
We think that that's an abuse of discretion, Your Honor.

[00:34:59] Speaker 06:
Thank you.

[00:35:01] Speaker 06:
Thank you very much.

[00:35:01] Speaker 02:
Thank you very much.

[00:35:03] Speaker 06:
A case is submitted.