NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 16 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RACHEL CONDRY; et al., No. 20-16823

Plaintiffs-Appellees, D.C. No. 3:17-cv-00183-VC

TERESA HARRIS,

MEMORANDUM*

Intervenor-Plaintiff- Appellee,

v.

UNITEDHEALTH GROUP, INC.; et al.,

Defendants-Appellants.

RACHEL CONDRY; et al., No. 20-16857

Plaintiffs-Appellants, D.C. No. 3:17-cv-00183-VC

TERESA HARRIS,

Intervenor-Plaintiff- Appellant,

v.

UNITEDHEALTH GROUP, INC.; et al.,

Defendants-Appellees.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding

Argued and Submitted July 26, 2021 San Francisco, California

Before: McKEOWN and NGUYEN, Circuit Judges, and LAMBERTH,** District Judge.

The parties in these cross-appeals challenge six rulings below. After

explaining why we have appellate jurisdiction over these cross-appeals, we will

address each challenged ruling.

1. We have jurisdiction over these cross-appeals under 28 U.S.C. § 1291. At

the time the district court granted in part and denied in part the parties’ cross-

motions for summary judgment, its ruling was undoubtedly interlocutory. See

Dannenberg v. Software Toolworks Inc., 16 F.3d 1073, 1074 (9th Cir. 1994). The

same is true of the district court’s partial grant and partial denial of the plaintiffs’

class-certification motion, as well as the district court’s denial of Teresa Harris’s

motion for permissive intervention. See Microsoft Corp. v. Baker, 137 S. Ct. 1702,

1706 (2017); Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 955

(9th Cir. 2009). But after the district court issued those three rulings, the parties

resolved all outstanding claims pursuant to a partial settlement agreement. See The

** The Honorable Royce C. Lamberth, United States District Judge for the District of Columbia, sitting by designation.

2 parties set forth the terms of that agreement in a “Stipulated Proposed Final

Judgment and Order,” and the district court entered the proposed order as written.

By resolving all outstanding claims in the litigation, the parties transformed the

three interlocutory rulings into final (and thus appealable) decisions. See 28 U.S.C.

§ 1291.

This case is distinguishable from Microsoft Corp. v. Baker, where the

Supreme Court held that the court of appeals did not have jurisdiction under

§ 1291. 137 S. Ct. at 1706–07. Unlike in Microsoft, the parties here did not reserve

the right to revive the claims dismissed with prejudice if the court of appeals

reversed the district court’s denial of class certification. See id. And because the

parties here resolved all claims in the litigation before noting their cross-appeals,

exercising jurisdiction over these cross-appeals would not “subvert the balanced

solution Rule 23(f) put in place for immediate review of class-action orders.” Id. at

1707. Thus, because all claims below have been resolved—either by a ruling on

the merits from the district court or pursuant to the terms of the partial settlement

agreement—and because the parties did not engage in gamesmanship to

manufacture appellate jurisdiction, see Brown v. Cinemark USA, Inc., 876 F.3d

1199, 1201 (9th Cir. 2017), we have jurisdiction under 28 U.S.C. § 1291.1

1 This is true even though the parties reserved their right to seek attorney’s fees. See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202 (1988) (holding that

3 2. We lack jurisdiction to review Harris’s motion for permissive intervention

and for intervention as a matter of right. With respect to Harris’s motion for

permissive intervention, we review the district court’s denial for abuse of

discretion. Perry, 587 F.3d at 955 (citing League of United Latin Am. Citizens v.

Wilson, 131 F.3d 1297, 1307 (9th Cir. 1997)). “Absent a finding of abuse of

discretion, we must dismiss the appeal for lack of jurisdiction.” Id. Here, the

district court reasonably determined that granting Harris’s motion to intervene

would unfairly prejudice UnitedHealth Group Inc. (“United”). By the time Harris

moved to intervene, the district court had already ruled on the parties’ cross-

motions for summary judgment. As the district court aptly recognized, adding a

new plaintiff at this late stage in the litigation would likely prompt another motion

to dismiss, another period for discovery, and more summary judgment motions.

The district court’s refusal to permit the litigation to continue along that path was

hardly an abuse of discretion. We thus lack jurisdiction to review the district

court’s denial of Harris’s motion for permissive intervention. See id.

As for Harris’s motion to intervene as a matter of right, we lack jurisdiction

to review the district court’s denial because Harris’s appeal of that denial was

untimely. The denial of a motion to intervene as a matter of right “must be

“an unresolved issue of attorney’s fees for the litigation in question does not prevent [a] judgment on the merits from being final”).

4 appealed on an interlocutory basis[.]” United States v. City of Oakland, 958 F.2d

300, 302 (9th Cir. 1992). But Harris waited roughly nine months to appeal the

district court’s denial of her motion. We thus lack jurisdiction to review the denial

of her motion to intervene as a matter of right. See Hamer v. Neighborhood

Housing Servs. of Chi., 138 S. Ct. 13, 17 (2017); 28 U.S.C. § 2107(a).

3. We affirm the district court’s grant of summary judgment to United on

Rachel Condry’s and Felicity Barber’s reimbursement claims (Count 2).2 The

plaintiffs correctly note that the Affordable Care Act requires health insurance

issuers to cover comprehensive lactation services in full. See 42 U.S.C. § 300gg-

13(a)(4) (requiring health-insurance issuers to provide coverage in full for

“preventive care and screenings . . . as provided for in comprehensive guidelines

supported by the Health Resources and Services Administration”); Women’s

Preventive Services Guidelines, Health Res. & Servs. Admin., https://www.hrsa.

gov/womensguidelines/index.html (last visited Sept. 9, 2021) (determining that

“comprehensive lactation support and counseling” is a type of “preventive

service”). But as the applicable regulations clarify, plan administrators that offer

participants access to in-network lactation-services providers are not required to

cover lactation services that are provided by an out-of-network provider. 29 C.F.R.

2 The district court referred to these claims as the “coverage of lactation services claims.”

5 § 2590.715-2713(a)(3)(i).

At summary judgment, United presented undisputed evidence showing that

Condry and Barber sought care from out-of-network lactation-services providers

even though there were in-network lactation specialists located nearby.

Accordingly, United has no obligation under the Affordable Care Act to reimburse

Condry and Barber for the cost of out-of-network lactation services. United’s

denial of Condry’s and Barber’s requests for reimbursement was thus proper, so

we affirm the district court’s grant of summary judgment to United on Condry’s

and Barber’s reimbursement claims.

4. There is no Article III jurisdiction over Condry’s and Barber’s full-and-

fair-review claims (Count 1).3 Showing why that is so requires a brief description

of the full-and-fair-review claim and its relationship to the reimbursement claim.

While the reimbursement claim challenges United’s denial of the plaintiffs’

requests for reimbursement, the full-and-fair-review claim challenges the process

by which United denied those requests. Specifically, the full-and-fair-review claim

alleges that United sent the plaintiffs denial letters with cursory and confusing

explanations for United’s denial of their request for reimbursement. In so doing,

the plaintiffs argue, United failed to comply with the claims-processing rules set

forth in the Employee Retirement Income Security Act (“ERISA”). Without a clear

3 The district court referred to these claims as the “claims processing claims.”

6 reason for the denial, the plaintiffs say, they cannot meaningfully contest the

denial, which means that they cannot be reimbursed. Thus, both the full-and-fair-

review claim and the reimbursement claim are means of obtaining the same

desired end: reimbursement from United.

But as explained above, Condry and Barber are not entitled to any

reimbursement from United. By seeking out-of-network care when they could have

gone to in-network providers, Condry and Barber relieved United of its obligation

under the Affordable Care Act to reimburse them. See 29 C.F.R. § 2590.715-

2713(a)(3)(i); 2 SER 72–73. Thus, a ruling in favor of Condry and Barber on their

full-and-fair-review claims and an order directing United to send them a clearer

denial letter could not possibly lead to reimbursement.

Put in Article-III-standing terminology, a favorable ruling on Condry’s and

Barber’s full-and-fair-review claims could not redress any concrete injury. See,

e.g., Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990) (holding that to support

Article III jurisdiction, “a litigant must have suffered, or be threatened with, an

actual injury traceable to the defendant and likely to be redressed by a favorable

judicial decision”). Indeed, because neither Condry nor Barber is entitled to

reimbursement, any harm caused by a confusing denial letter is no more than a

“bare procedural violation.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016);

accord TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2213–2214 (2021). And it is

7 well established that a bare procedural violation of ERISA, “without some concrete

interest that is affected by the deprivation,” does not satisfy the injury-in-fact

requirement of Article III standing. Spokeo, Inc., 136 S. Ct. at 1549 (quoting

Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009)); see Thole v. U.S. Bank

N.A., 140 S. Ct. 1615, 1622 (2020) (“There is no ERISA exception to Article III.”).

In sum, because a favorable ruling on Condry’s and Barber’s full-and-fair-

review claims could not redress a concrete injury, there is no Article III jurisdiction

over those claims. See id. We thus vacate the district court’s grant of summary

judgment to Condry and Barber on their full-and-fair-review claims and remand

with instruction to dismiss those claims for lack of standing.

5. The partial settlement agreement mooted Bishop’s, Hoy’s, and Endicott’s

full-and-fair-review claims, so we vacate the district court’s grant of summary

judgment to those plaintiffs on those claims and remand with instruction to dismiss

those claims as moot.

After the district court issued its summary-judgment ruling, the parties

entered into a partial settlement agreement. Pursuant to that agreement, United

agreed to reimburse Hoy and Bishop for the cost of out-of-network lactation

services, plus pre-judgment interest. Because Hoy and Bishop brought their full-

and-fair-review claims with the aim of getting reimbursed, United’s agreement to

pay their costs in full is thus an “intervening circumstance” that deprived Hoy and

8 Bishop of a “personal stake in the outcome” of their full-and-fair-review claim.

Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72 (2013) (quoting Lewis, 494

U.S. at 477–78). Their claims are thus moot. See id.

The same is true for Endicott’s full-and-fair-review claim. As the Stipulated

Final Judgment and Order reflects, Endicott agreed to settle her reimbursement

claim. As part of that agreement, Endicott dismissed her reimbursement claim with

prejudice. Because Endicott has already settled and dismissed with prejudice her

reimbursement claim, a clearer denial letter could not lead to reimbursement from

United. Thus, the partial settlement agreement mooted Endicott’s full-and-fair-

review claim as well.

When a claim becomes moot during the course of the litigation, the

established practice is “to reverse or vacate the judgment below and remand with a

direction to dismiss.” United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950).

Accordingly, we vacate the district court’s grant of summary judgment to Hoy,

Bishop, and Endicott on their full-and-fair-review claims and remand with

instruction to dismiss those claims as moot.

6. We reverse the district court’s grant of class certification to the Denial

Letter Class and dismiss the Denial Letter Class claim. Though we have concluded

that all the named plaintiffs’ individual full-and-fair-review claims must be

dismissed for lack of standing or mootness, this conclusion is not necessarily fatal

9 to the Denial Letter Class claim. Where, as here, a named plaintiff’s claims

become moot after a class was certified, the mooting of her individual claim will

not result in dismissal of the class claim so long as the class was properly

certified. See Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 753–57

(1976). Accordingly, to determine whether the Denial Letter Class claim may

proceed, we must consider on the merits whether the district court properly

certified the Denial Letter Class.

It did not. By focusing exclusively on the remark codes used in United’s

denial letters, the district court applied the incorrect legal standard for determining

whether United complied with ERISA’s claims-processing rules. See 29 U.S.C.

§ 1133. Under our precedent, courts must consider the entire course of

communication between the plan administrator and the plan participant to

determine whether the denial letter provided a sufficiently clear reason for the

denial. See, e.g., Harlick v. Blue Shield of Cal., 686 F.3d 699, 720 (9th Cir. 2012)

(considering “extensive communication” between insured, insured’s mother, and

insurance provider in determining whether insurance provider provided a specific

reason for the denial); Saffon v. Wells Fargo & Co. Long Term Disability Plan,

522 F.3d 863, 870–71 (9th Cir. 2008) (considering reports sent to insured’s

medical provider in conjunction with the termination letters).

Under this legal standard, class certification of the Denial Letter Class was

10 improper. Given the individualized inquiry required to evaluate the sufficiency of

the denial letters, the class representatives’ claims are not typical of the class

members’ claims. See Fed. R. Civ. P. 23(a)(3). Thus, because there is no typicality,

certification of the Denial Letter Class was an abuse of discretion. See id. And

because the Denial Letter Class was not properly certified before the partial

settlement agreement mooted Bishop’s, Hoy’s, and Endicott’s claims, the class

claim must also be dismissed as moot. See U.S. Parole Comm’n v. Geraghty, 445

U.S. 388, 404 (1980).

7. Because certification of the Denial Letter Class was an abuse of

discretion, and the full-and-fair-review class claim thus must be dismissed as moot,

we vacate the district court’s grant of permanent injunctive relief in favor of the

Denial Letter Class.

8. We dismiss the Claims Reprocessing Class claim as moot. Though all the

named plaintiffs’ individual reimbursement claims either lack standing or are

moot, the mooting of a named plaintiff’s individual claim after the denial of class

certification will not result in dismissal of the class claim, so long as the denial of

class certification is reversed on appeal. Id. Here, however, the Claims

Reprocessing Class claim must be dismissed as moot because the district court’s

denial of class certification was not an abuse of discretion. As the district court

correctly recognized, United did not take a uniform approach to resolving claims

11 for out-of-network comprehensive lactation services. The claims of the named

plaintiffs thus are not typical of the claims of the class, as they must be for class

certification. See Fed. R. Civ. P. 23(a)(3). Accordingly, because the district court

properly denied class certification to the Claims Reprocessing Class before

Bishop’s, Hoy’s, and Endicott’s claims became moot, the class claim must also be

dismissed as moot. See Geraghty, 445 U.S. at 404.

***

In sum, we DISMISS Teresa Harris’s appeal of the district court’s denial of

her motion to intervene; AFFIRM the district court’s grant of summary judgment

to United on Rachel Condry’s and Felicity Barber’s reimbursement claims (Count

2); VACATE AND REMAND the district court’s grant of summary judgment to

Rachel Condry and Felicity Barber on their full-and-fair-review claims (Count 1)

with instruction to dismiss those claims for lack of standing; VACATE AND

REMAND the district court’s grant of summary judgment to Jance Hoy, Laura

Bishop, and Christine Endicott on their full-and-fair-review claims (Count 1) with

instruction to dismiss those claims as moot; VACATE the district court’s grant of

class certification to the Denial Letter Class and REMAND with instruction to

dismiss the Denial Letter Class claim as moot; VACATE the permanent injunctive

relief awarded to the Denial Letter Class; and REMAND with instruction to

dismiss the Claims Reprocessing Class claim as moot. Each party shall bear its

12 own costs.

13