NOT FOR PUBLICATION FILED

SEP 4 2024

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED BEHAVIORAL HEALTH, No. 24-242 Petitioner-Defendant, v. D.C. Nos. 3:14-cv-02346-JCS, 3:14-cv-5337

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

CALIFORNIA, MEMORANDUM*

Respondent,

DAVID WIT and GARY ALEXANDER, et al., Real-Parties-In-Interest-Plaintiffs.

Petition for Writ of Mandamus

Submitted September 4, 2024**

Before: CHRISTEN and FORREST, Circuit Judges, and ANELLO,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Michael M. Anello, United States District Judge for the Southern District of California, sitting by designation. 1 Defendant United Behavioral Health (UBH) petitions for a writ of mandamus,

contending that the district court misunderstood this court’s mandate regarding

plaintiffs’ denial of benefits claim that was issued after our decision in Wit v. United

Behav. Health (Wit III), 79 F.4th 1068 (9th Cir. 2023). We grant the petition and

direct the district court to enter judgment for UBH on this claim.

1.

A writ of mandamus is a remedy reserved for “extraordinary situations.” Kerr

v. U.S. Dist. Ct., 426 U.S. 394, 402 (1976). Three criteria must be met for this remedy

to issue: (1) the right to the writ must be clear and indisputable, (2) no other adequate

means, such as an appeal, may exist to obtain the relief desired, and (3) in exercising

discretion, we must be “satisfied that the writ is appropriate under the

circumstances.” Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380–81 (2004).

Mandamus is the appropriate remedy when district courts vary from our

mandate. Vizcaino v. U.S. Dist. Ct., 173 F.3d 713, 719 (9th Cir. 1999); see also

Vendo Co. v. Lektro-Vend Corp., 434 U.S. 425, 427 (1978); United States v. Cote,

51 F.3d 178, 181 (9th Cir. 1995). When “execut[ing] the terms of a mandate,” district

courts can reconsider “any issue not expressly or impliedly disposed of on appeal.”

S.F. Herring Ass’n v. U.S. Dep’t of Interior, 946 F.3d 564, 574 (9th Cir. 2019)

(citations omitted); see also United States v. Kellington, 217 F.3d 1084, 1092 (9th

2 Cir. 2000); Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1172 (9th Cir. 2006). “In

determining which matters fall within the compass of a mandate, ‘[d]istrict courts

must implement both the letter and the spirit of the mandate, taking into account the

appellate court’s opinion and the circumstances it embraces.’” Creech v. Tewalt, 84

F.4th 777, 787 (9th Cir. 2023) (quoting Vizcaino, 173 F.3d at 719).

We review a district court’s adherence to our mandate de novo. Pit River Tribe

v. U.S. Forest Serv., 615 F.3d 1069, 1080 (9th Cir. 2010) (citing Kellington, 217

F.3d at 1092).

2.

Because UBH did not appeal the district court’s resolution of plaintiffs’ state-

mandate claims, see Wit III, 79 F.4th at 1086, we addressed two claims in our

decisions: a denial of benefits claim and a fiduciary duty claim.

Starting with the denial of benefits claim, in Wit III, we held that the district

court erred in certifying this claim for class treatment. Plaintiffs did not limit their

proposed classes to members who were denied a full and fair review of their claims,

nor did they establish that such a common showing was possible because the classes

were also not limited to claimants whose claims were denied based only on UBH’s

challenged Guidelines. Id. at 1086, 1089.

3 On the merits of the denial of benefits claim, in an earlier decision we

explained that “the [Plans’] GASC1 precondition mandates that a treatment be

consistent with GASC as a starting point.” Wit v. United Behav. Health (Wit II), 58

F.4th 1080, 1097 (9th Cir. 2023), vacated and superseded by Wit III, 79 F.4th 1068.

And we elaborated that the GASC precondition “does not compel UBH to cover all

treatment that is consistent with GASC” because “other Plan provisions . . . still

exclude certain treatments even if they are consistent with GASC.” Id. In subsequent

filings interpreting Wit II, the parties disputed whether the district court mistakenly

understood that the Plans were obliged to cover services simply because they were

consistent with GASC.

In Wit III, we clarified that although the district court’s findings, conclusions,

and orders were inconsistent on this point, viewed as a whole, the record included

statements reflecting the district court’s recognition that the various Plans allowed

claims to be excluded even if the services provided were consistent with GASC. Wit

III, 79 F.4th at 1086–88. It was in this context that we held: “[T]o the extent the

district court interpreted the Plans to require coverage for all care consistent with

GASC, the court erred.” Id. at 1088. And we reversed both “the district court’s

1 GASC stands for “generally accepted standards of care.” 4 certification of the denial of benefits classes” and “the judgment on Plaintiffs’ denial

of benefits claim” without remand. Id. at 1089.

Our reasoning on the merits of the denial of benefit claim also applied to the

fiduciary duty claim, id. at 1088 n.7, and we reversed the district court’s judgment

on that claim as well “to the extent [it] [wa]s based on the district court’s erroneous

interpretation of the Plans,” id. at 1089. But because it was unclear whether the

entirety of the fiduciary duty claim was based on misinterpretation of the Plans’

GASC precondition, we remanded for the district court to identify any surviving

aspect of that claim and, if some part of that claim did survive under our reasoning,

“to answer the threshold question of whether Plaintiffs’ fiduciary duty claim is

subject to the exhaustion requirement.” Id. at 1090.

3.

In its thorough analysis of the spirit of our mandate, the district court lost the

letter. Vizcaino, 173 F.3d at 719.

Wit III established that the errors in the class certification order related to the

denial of benefits claim also infected the merits and remedy determinations related

to that same claim. 79 F.4th at 1086. And in “revers[ing] the district court’s judgment

that UBH wrongfully denied benefits to the named Plaintiffs to the extent the district

court concluded the Plans require coverage for all care consistent with GASC,” we

5 held that requiring “coverage for all care consistent with GASC” was a

misinterpretation of the Plans. Id. at 1088. Despite the “to the extent” qualifier, the

substance of our decision definitively resolved the denial of benefits claim.

Perhaps we could have said it more plainly. But our holding in Wit III is

nonetheless definitive. We reversed (without remand) both the district court’s class

certification order and merits judgment on the denial of benefits claim. Our omission

of any reference to remand or direction for remand related to this claim, coupled

with our plain reversal of the district court’s judgment on that claim, disposed of the

entire claim. S.F. Herring Ass’n, 946 F.3d at 574. In parsing the mandate, an

informative difference is the contrast between the explicit remand on the fiduciary

duty claim and the lack of remand or direction on the denial of benefits claim. See

A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 107 (2012)

(“The expression of one thing implies the exclusion of others.”).

As a result, after our decision in Wit III, the district court only had jurisdiction

to enter judgment for UBH on the denial of benefits claim. See United States v.

Thrasher, 483 F.3d 977, 982 (9th Cir. 2007) (“[I]f a district court errs by violating

the rule of mandate, the error is a jurisdictional one.”). Because the district court has

instead concluded that certification of the denial of benefit class and the merits of

that claim are both subject to re-litigation, UBH has shown a “clear and indisputable”

6 right to mandamus relief. Cheney, 542 U.S. at 381 (internal quotation marks and

citation omitted).

Moreover, UBH does not have an adequate remedy beyond mandamus relief.

Id. As the Supreme Court instructed, “[a] litigant who . . . has obtained judgment in

this Court after a lengthy process of litigation, involving several layers of courts,

should not be required to go through that entire process again to obtain execution of

the judgment of this Court.” Gen. Atomic Co. v. Felter, 436 U.S. 493, 497 (1978).

Given our prior decision, the district court was not “free to again” allow plaintiffs to

litigate their denial of benefits claim. Id. Moreover, the district court’s error will

impose years of litigation costs on UBH. As a result, we conclude mandamus relief

is warranted under our governing precedent. Id. On remand, further proceedings are

limited to those we directed as relates to the breach of fiduciary duty claim.

The petition is GRANTED and the matter is REMANDED to the district

court for further proceedings consistent with this opinion.2

2 The motion to file a reply brief (Dkt. 15) is DENIED. The stay of the underlying proceedings in the district court (Dkt. 11) is LIFTED. 7