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Publish United States Court of Appeals For The Tenth Circuit
Publish United States Court of Appeals For The Tenth Circuit
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
Plaintiff - Appellant,
v.
No. 16-6143
ED LAKE, Director of Oklahoma
Department of Human Services; JOEL
NICO GOMEZ, Director of Oklahoma
Health Care Authority,
Defendants - Appellees.
_________________________________
PUBLISHED CONCURRENCE
_________________________________
In its unpublished opinion, Pecha v. Lake, No. 16-6143 (10th Cir. July 25, 2017),
the panel majority fails to follow the lead of a prior panel of this court and correct the
party before us. It then somehow manages to handle this appeal as if a deceased person
could be a party, but not with respect to some claims (I am not sure what they are) that
his estate could raisethereby avoiding a core argument addressed by the parties and
resolved. In this concurrence I will discuss the procedural background of the case, the
technical errors, the proper way to deal with those errors, and why the claim must
The original complaint was filed on behalf of 97-year-old Alfred Pecha by his
niece, Patty Pecha-Weber, acting as next friend and attorney-in-fact (under a power of
attorney). The complaint claimed that the state-official defendants had unlawfully
refused to determine that Mr. Pecha was eligible for Medicaid benefits. Among other
cease denying coverage and ordering that they certify him as eligible for coverage from
the date of his requested eligibility and pay Medicaid benefits accordingly. Aplt. App.,
Vol. I at 14. The defendants moved to dismiss the complaint on several grounds,
including sovereign immunity under the Eleventh Amendment. They argued that the
Eleventh Amendment prohibited the federal court from issuing a declaratory judgment or
ordering payment of any past Medicaid benefits. The district court granted the motion as
to the declaratory judgment but ruled that if the court granted an injunction ordering the
defendants to certify Mr. Pecha as eligible for Medicaid benefits, the Eleventh
Unfortunately, Mr. Pecha died during the litigation. The defendants then filed a
Suggestion of Mootness and Motion to Dismiss because of his death. In response, Ms.
Pecha-Weber, now acting in the capacity of personal representative of Mr. Pechas estate
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(she attached the state-court order naming her as personal representative), filed a motion
for substitution of parties (replacing Mr. Pecha by his estate) under Fed. R. Civ. P. 25.
She also argued against the defendants suggestion of mootness, contending that if the
court granted the injunction requiring defendants to certify Mr. Pechas Medicaid
eligibility, Pecha's estate still [would have] the ability to recover Medicaid benefits back
to their application date since they would be ancillary to and in furtherance of [the
injunction]. Aplt. App. Vol. III at 450. The defendants objected to the substitution of
the estate as a party, essentially on the ground that the estates claim was mooted, at least
in federal court, by Mr. Pechas death. They argued that the Eleventh Amendment barred
the federal court from granting any ancillary relief (such as the payment of past benefits)
once Mr. Pechas death mooted any claim for prospective relief.
The first technical error was that the district court did not grant the motion to
substitute the estate as the plaintiff. It did not address the motion to substitute at all, but it
granted the defendants motion to dismiss, in effect denying the motion to substitute. The
court may have thought that substitution of parties was unnecessary because the case was
moot anyway. Without substitution, however, there would be no proper plaintiff to take
an appeal challenging the district courts mootness ruling. The failure to grant the motion
to substitute was an undeniable abuse of discretion. The merits of the claim is not a
proper consideration in resolving such a motion. See 7C Charles Alan Wright, Arthur R.
Miller, Mary Kay Kane, Richard L. Marcus, A. Benjamin Spencer & Adam N. Steinman,
Federal Practice and Procedure 1956, 691 (3d ed. 2017) (Wright & Miller) (The
court will not resolve the merits of the controversy in passing on a motion for
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substitution.). And denial of a timely motion to substitute, as in this case, can be
plaintiff made within the rules time limits. 6 James Wm. Moore et al., Moores
Federal Practice 25.12[4] (3d ed. 2017) (quoting Saylor v. Bastedo, 623 F.2d 230, 237
(2d Cir. 1980)). As stated in Wright & Miller, There appears to be only one reported
case under [the 1963 amendment to Rule 25(a)(1)] in which substitution has been denied
when the motion was made within the 90-day period [after service of a statement of
death], 7C Wright & Miller 1955 at 686; and in that case the party had been tardy in
many respects, including in serving a statement of death, see Ashley v. Ill. Cent. Gulf R.R.
The second technical error was the failure of counsel for Ms. Pecha-Weber (as
personal representative of the estate) to appeal the denial of the motion to substitute. This
likely was an oversight. Counsel began oral argument in this court by stating that he was
representing Mr. Pecha and his estate. The failure to substitute parties was then raised by
the panel during the argument. The oversight had not been noted in the defendants
pleadings on appeal. They did not rely in their briefing on the absence of the substitution
of parties. As set forth in the following footnote, the defendants 20-page brief
1
The District Court granted Defendants motion [to dismiss for mootness], holding
that Mr. Pechas estates sole interestthe award of ancillary monetary relief in the form
4
The proper way for this court to deal with the technical errors is simple and
straightforward. We should sua sponte substitute Mr. Pechas estate as the plaintiff-
appellant. That is what this court did in Copier v. Smith & Wesson Corp., 138 F.3d 833,
834 n.1, 835 (10th Cir. 1998). Plaintiffs counsel in that case had not moved to substitute
parties in the district court (the plaintiff died during district-court proceedings) or on
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appeal. The equities here are much more favorable to Mr. Pechas estate, because it did
everything it should have in district court, and the matter should have been properly dealt
with there. Our substitution of parties would create zero unfair prejudice to the
defendants.
analysis as though Mr. Pecha were the sole plaintiff before us. O&J at 5. It notes that
the defendants have not questioned Ms. Pecha-Webers authority to proceed as the
attorney-in-fact of Mr. Pecha. I am confused by what that means, because the majority
does not explain how a deceased person can be represented by counsel or can be a party
and, if so, what sort of relief can be granted to a deceased person (as opposed to the
decedents estate). In particular, the majority opinion states that it will not ruminate or
opine on whether the outcome would have been different if Mr. Pecha's estate (with Ms.
it does not suggest what might be different if the estate were the appellant. We are just
left with a hint that somehow the result might change if, in future cases, there was a
substitution of parties.
As support for proceeding as it does, the majority cites the Second Circuit opinion
in Bush v. Remington Rand, 213 F.2d 456 (2d Cir. 1954). The majority reads that
opinion as concluding that the defendant, by its long delay in raising the issue, had
waived its right to object to failure to substitute in the district court a proper party-
plaintiff upon plaintiffs death. O&J at 5 (quoting Bush, 213 F.2d at 464). The
majoritys statement is essentially correct. But it ignores what happened in that case as
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the result of the waiver. The defendant-appellant had sought to dismiss the claims
against it because the estate had not been substituted for the decedent within the two-year
time limit of the then-current version of Rule 25. See Bush, 213 F.2d at 463. What was
waived was the right to obtain a dismissal. The waiver did not lead the Bush court to
somehow treat the decedent as a party, which is what the majority does here. Rather,
Bush ruled that as a result of the waiver, the district court had proceeded properly by,
among other things, adding the administratrix of the estate as a party. See id. at 464. The
circuit court then resolved the case just as if the proper parties had been substituted all
In contrast to the length of the above preliminary material, the merits of the
mootness issue can be dealt with briefly. In deciding whether a case is moot, the crucial
question is whether granting a present determination of the issues offered will have some
effect in the real world. Kan. Judicial Review v. Stout, 562 F.3d 1240, 1246 (10th Cir.
2009) (brackets, ellipsis, and internal quotation marks omitted); see also Phelps v.
Hamilton, 122 F.3d 885, 891 (10th Cir. 1997) (inability to grant effective relief
renders . . . issue moot). Appellant concedes that no future Medicaid benefits can be
due. But she asserts that the case is not moot because of the prospect of receiving past
benefits, which would be relief ancillary to a court order requiring that Mr. Pechas
If this proceeding were in state court, this argument might well be correct. In
federal court, however, an award of past benefits is barred by the Eleventh Amendment
absent any continuing violation of federal law justifying injunctive relief. The doctrine is
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explained in Green v. Mansour, 474 U.S. 64 (1985), where the Supreme Court considered
two consolidated class actions challenging Michigans denial of benefits under the
federal Aid to Families With Dependent Children (AFDC) program. One suit
complained that the State was not deducting child-care expenses in computing a potential
beneficiarys income. The other complained that the State included stepparent income in
the computation. After the suits were brought, federal law was changed to allow
deductions for child-care expenses and to require inclusion of stepparent income. See id.
at 6667. The State thereafter clearly complied with federal law, so the district court
vacated its preliminary injunction. It then dismissed the cases as moot although the
plaintiffs had pending claims (1) for declarations that Michigan officials had improperly
denied benefits in the past and (2) for notice relief, requiring state officials to provide
notices to AFDC applicants informing them that state administrative procedures were
available to determine whether they were eligible for past benefits. See id. The Supreme
The Court noted that since Ex parte Young, 209 U.S. 123 (1908), it had held that
the Eleventh Amendment does not prevent federal courts from granting prospective
injunctive relief to prevent a continuing violation of federal law. 474 U.S. at 68. On the
other hand, retrospective relief is not permissible. See id. The Court recognized that it
violations of federal law; but in that circumstance the declaratory judgment had no legal
effect beyond that of the injunction. See id. at 6970 & n.1. Absent any ground for a
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Constitution. The Court explained that issuing a declaratory judgment would be
tantamount to granting retrospective relief because its sole purpose would be to bind a
There is a dispute about the lawfulness of respondent's past actions, but the
Eleventh Amendment would prohibit the award of money damages or restitution if
that dispute were resolved in favor of petitioners. We think that the award of a
declaratory judgment in this situation would be useful in resolving the dispute
over the past lawfulness of respondent's action only if it might be offered in state-
court proceedings as res judicata on the issue of liability, leaving to the state
courts only a form of accounting proceeding whereby damages or restitution
would be computed. But the issuance of a declaratory judgment in these
circumstances would have much the same effect as a full-fledged award of
damages or restitution by the federal court, the latter kinds of relief being of
course prohibited by the Eleventh Amendment. . . . [A] declaratory judgment is
not available when the result would be a partial end run around our decision
[barring a federal district court from ordering retroactive benefits].
Although the issue in our case is not the propriety of a declaratory judgment, the
governing doctrine is clear. I see no way that the grant of any relief here could avoid the
prohibition of Green. Because Mr. Pecha has died there could be no continuing violation
of federal law with respect to his benefits. If, as Appellant seems to argue, the continuing
refusal to pay past benefits constitutes a continuing violation that can be corrected, then
the Eleventh Amendment bar on retrospective relief would be an illusion. Every failure
2
Notice relief was also unavailable. The Court acknowledged that a request for a
limited notice order will escape the Eleventh Amendment bar if the notice is ancillary to
the grant of some other appropriate relief that can be noticed. Id. at 71. But in that
case there was no continuing violation of federal law to enjoin, so an injunction [was]
not available. Id. Therefore, notice [could not] be justified as a mere case-management
device that is ancillary to a judgment awarding valid prospective relief. Id.
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right. The injunction sought hererequiring the defendants to certify a deceased man as
eligible for benefitscan have no effect on future benefits. What is desired by an order
requiring the defendants to certify Mr. Pechas Medicaid eligibility is, in essence, a
on the issue of liability, leaving to the state courts only a form of accounting proceeding
whereby damages or restitution would be computed. Id. But that is barred by the
Eleventh Amendment because it would have much the same effect as a full-fledged
award of damages or restitution by the federal court. Id.; see Tarrant Regl Water Dist.
v. Sevenoaks, 545 F.3d 906, 911 (10th Cir. 2008) ([W]hen the requested relief is akin to
Thus, even if Mr. Pechas estate is substituted as the plaintiff, no relief is available
in federal court (regardless of whether Mr. Pecha was Medicaid eligible) so the case is
Unfortunately, the majority opinion is not being published. I would think that it
merits publication under 10 Cir. R. 36.2 because the manner of disposition of this case is
apparently unprecedented.
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