Carol A. Lewis v. Xavier Becerra, in His Capacity As Secretary of the United States Department of Health

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed On: January 7, 2025
No. 23-5152
CAROL A. LEWIS AND DOUGLAS B. SARGENT, ON BEHALF OF
THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
APPELLANTS
v.
XAVIER BECERRA, IN HIS CAPACITY AS SECRETARY OF THE
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-02929)
On Petition for Rehearing En Banc
Before: SRINIVASAN, Chief Judge; HENDERSON, MILLETT,
PILLARD*, WILKINS, KATSAS, RAO, WALKER, CHILDS, PAN, and
GARCIA, Circuit Judges

-- 1 of 6 --

2
O R D E R
Upon consideration of appellants’ petition for rehearing
en banc, the response thereto, and the absence of a request by
any member of the court for a vote, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Clifton B. Cislak, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
* A statement by Circuit Judge Pillard, concurring in the
denial of rehearing en banc, is attached.

-- 2 of 6 --

P ILLARD, Circuit Judge, concurring in the denial of
rehearing en banc: I agree with the decision not to grant en
banc review in this case. As explained below, the panel’s
opinion will likely have only limited precedential impact. And
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. Such
conduct is deeply troubling and could affect the jurisdictional
analysis in another case, but does not appear to be present here.
Nonetheless, I write to express reservations about the panel’s
opinion that we should address in an appropriate future case.
First, as the panel acknowledges, Op. at 13, we are bound
by the Supreme Court’s decision in Geraghty—which answers
the jurisdictional question raised here opposite to how the panel
does: “We know, because the Supreme Court has told us, that
when a class representative’s claims expire involuntarily, the
class representative still ‘retains a “personal stake” in obtaining
class certification sufficient’ to appeal a denial of class
certification entered before the representative’s claims
expired.” Richards v. Delta Air Lines, Inc., 453 F.3d 525, 528
(D.C. Cir. 2006) (quoting U.S. Parole Comm’n v. Geraghty,
445 U.S. 388, 404 (1980)); see Geraghty, 445 U.S. at 404
(holding that “an action brought on behalf of a class does not
become moot upon expiration of the named plaintiff’s
substantive claim, even though class certification has been
denied”). There was no question the controversy in Geraghty
remained “live” as between defendant and at least some
members of the putative class; the dispute concerned only
whether the named plaintiff retained a personal stake to appeal
an erroneous denial of class certification.
The panel deems Geraghty not “directly controlling,” so
disregards Geraghty’s holding and less-than-“current” style of
reasoning, solely because Geraghty’s claim “became moot”
upon his release from prison rather than because he “prevailed

-- 3 of 6 --

2
on the merits.” Op. at 12-14. As even the government
concedes, Rehearing Opp. at 12-14, the distinction the panel
invokes between this case and Geraghty is immaterial to the
jurisdictional analysis. Indeed, the Court in Geraghty rejected
that very distinction, holding that the difference between
“mootness of [an] individual claim [] caused by ‘expiration’ of
the claim, rather than by a judgment [in the named plaintiffs’
favor] on the claim” was not “persuasive.” Geraghty, 445 U.S.
at 401. The Court declared 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. That was so notwithstanding Geraghty’s lack of
an ongoing interest like the shared burden of attorney’s fees
featured in Roper. The panel does not persuasively avoid
Geraghty’s clear application to this case.
However questionable that decision may seem to us,
Geraghty remains good law until the Supreme Court decides
otherwise. Agostini v. Felton, 521 U.S. 203, 237 (1997). And,
in any event, Geraghty’s jurisdictional analysis is not
necessarily incompatible with “current law.” Op. at 12.
Geraghty and Flast certainly reflect the style and thinking of
their day, but they do not “fail[] to recognize that [standing] has
a separation-of-powers component.” Id. (quoting Lewis v.
Casey, 518 U.S. 343, 353 n.3 (1996)). To the contrary, both
cases expressly recognize that one of the “two ‘complementary
purposes’” served by Article III’s “case-or-controversy
limitation” is to “define[] the ‘role assigned to the judiciary in
a tripartite allocation of power to assure that the federal courts
will not intrude into areas committed to the other branches of
government.’” Geraghty, 445 U.S. at 395-96 (quoting Flast v.
Cohen, 392 U.S. 83, 95 (1968)).
More to the point, the Supreme Court has recently
validated Geraghty’s specific holding and analysis. In Genesis

-- 4 of 6 --

3
Healthcare Corp. v. Symczyk the Court explained that, unlike
in the FLSA collective action before it, “when a district court
certifies a class [under Rule 23], ‘the class of unnamed persons
described in the certification acquires a legal status separate
from the interest asserted by the named plaintiff,’ with the
result that a live controversy may continue to exist, even after
the claim of the named plaintiff becomes moot.” 569 U.S. 66,
74 (2013) (quoting Sosna v. Iowa, 419 U.S. 393, 399-402
(1975)); see also id. at 75 (reaffirming the “fact” that “a
putative class acquires an independent legal status once it is
certified under Rule 23”). The Court then explained that
Geraghty “narrowly extended that principle to denials of class
certification motions” by “relat[ing] back” an incorrectly
denied class’s certification to the district court’s erroneous
denial. Id. at 74-75. Under that construct, the class’s separate
legal status and unremedied injury supplies the necessary
jurisdiction to support an appeal even when the named
plaintiff’s claim is mooted after certification is denied.
Because the individual plaintiff’s claim in Genesis was mooted
before she sought or the court anticipated “conditional
certification,” Geraghty did not apply. Id. at 75.
The panel does not explain which developments in
standing law invalidate Geraghty’s approach. Nothing in
Genesis Healthcare suggests the Supreme Court’s
disagreement with that jurisdictional analysis. And the logic
that animates it—that it would be arbitrary to allow the mooted
named plaintiff of a certified class to appeal, per Sosna, while
prohibiting the mooted named plaintiff of an erroneously non-
certified class to do so, contra Geraghty—has as much force
today as it did 45 years ago. That arbitrary asymmetry created
by the panel’s rule also means that, in the unlucky event that
the named plaintiff’s claim is mooted during the brief window
between the district court’s denial of certification and the filing
of a petition for immediate appellate review under Rule 23(f),

-- 5 of 6 --

4
the appellate court would lack jurisdiction to determine
whether the denial was erroneous.
Separately, the panel’s suggestion that this case concerns
a question of standing rather than mootness bears clarification.
I take the statement that “any appellant must invoke and
establish the jurisdiction of an appellate court at the outset of
any appeal,” Op. at 6 n.1, to mean that, at the threshold of an
appeal, appellants must (1) establish that they validly invoked
their Article III standing as of the time they first filed in federal
court, see Friends of the Earth, Inc. v. Laidlaw Env’t Servs.
(TOC), Inc., 528 U.S. 167, 191 (2000), and (2) satisfy the
distinct requirements of appellate jurisdiction, see Process &
Industrial Developments v. Federal Republic of Nigeria, 962
F.3d 576, 580 (D.C. Cir. 2020) (accepting interlocutory appeal
from order to brief merits issues before ruling on asserted FSIA
immunity). I do not take it to mean that appellants must re-
establish standing as of the time an appeal is commenced—as
that would impose a new requirement contrary to decades of
established precedent.
All that said, I agree with the panel that this opinion may
have little precedential effect. In most cases—unlike in this
case—parties owing fees may arrange to share that obligation
with the unnamed class members, see Roper, and counsel for a
proposed class will presumably request interlocutory review of
a denial of class certification under Rule 23(f). If no stake in
cost recovery persists and interlocutory review is denied,
counsel can still recruit other putative class members to
substitute or intervene post-judgment to appeal the denial of
class certification. I therefore concur in the denial of rehearing
en banc.

-- 6 of 6 --