United States Court of Appeals For the First Circuit No. 20-1377

MARIE V. PÁGAN-LISBOA; DANIEL JUSTINIANO-RAMÍREZ,

Plaintiffs, Appellants,

v.

SOCIAL SECURITY ADMINISTRATION; ANDREW M. SAUL, Commissioner of Social Security Administration,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, U.S. District Judge]

Before

Howard, Chief Judge, Lipez and Thompson, Circuit Judges.

Javier Andrés Colón Volgamore, for appellants. Jaynie Lilley, Attorney, Appellate Staff, United States Department of Justice, with whom Jeffrey Bossert Clark, Acting Assistant Attorney General, W. Stephen Muldrow, United States Attorney, and Mark B. Stern, Attorney, Appellate Staff, United States Department of Justice, were on brief, for appellees.

April 22, 2021 THOMPSON, Circuit Judge.

Setting the Stage

This case is fallout from what the Social Security

Administration did to Marie Págan-Lisboa and Daniel Justiniano-

Ramírez after José Hernández-González (a neurologist) and Samuel

Torres-Crespo (a nonattorney representative) copped to using fraud

to help people get disability-insurance benefits from that agency.

Statutory and Regulatory Regime

A federal statute says that the agency must "immediately

redetermine" whether a person actually deserved benefits when she

or he applied for them "if there is reason to believe that fraud

or similar fault was involved" in the application. See

(u)(1)(A). Another part of the statute says that during the

redetermination process, the agency must "disregard any evidence"

in the benefits application "if there is reason to believe that

fraud or similar fault was involved in the providing of such

evidence." See

§ 405(u)(1)(B).

An agency manual envisions three situations in which the

"reason to believe" could materialize. One is when "[a]n [agency]

investigation . . . results in a finding of fraud or similar

fault." See Social Security Administration Hearings, Appeals, and

Litigation Manual ("HALLEX") § I-1-3-25.C.4.a., available at

https://www.ssa.gov/OP_Home/hallex/I-01/I-1-3-25.html. A second

- 2 - is when the agency receives "[a] referral based on information

obtained during a criminal or other law enforcement

investigation." Id. And a third is when the agency's inspector

general "refer[s] . . . information" to the agency. Id. Only

when the agency discovers the fraud can a beneficiary "object[] to

the disregarding of certain evidence"; and if the administrative

law judge ("ALJ") "is satisfied" that the evidence is not

fraudulent, "he or she will consider the evidence" — in the other

two situations she or he cannot. See id.

Agency Proceedings

We move now from the general to the specific.1 A team

of agency special adjudicators reviewed benefits cases containing

evidence from Hernández-González and Torres-Crespo, thinking — as

relevant here, though incorrectly as we will see — that the

inspector general had made a fraud referral. And that put Págan-

Lisboa and Justiniano-Ramírez in the agency's cross-hairs.

Págan-Lisboa is a former patient of Hernández-González

and a former client of Torres-Crespo. With their help, she applied

for and started getting disability benefits (or so the agency

writes, without contradiction). Relying on § 405(u), the agency

later notified her that it needed to redetermine her benefits

The background events are essentially undisputed for present 1

purposes. - 3 - eligibility because her "case contain[ed] evidence" from

"admitt[ed]" fraudsters Hernández-González and Torres-Crespo. The

agency added that while she could argue to an ALJ that she was

"entitled to benefits at the time of [her] original award," she

could "not argue that [the agency] should consider evidence from

[persons] who admitted they were guilty of making a false statement

to [the agency]." Together with her lawyer, Págan-Lisboa

participated in a hearing at which she testified. Ultimately,

though, after disregarding evidence from Hernández-González and

Torres-Crespo, the ALJ concluded that Págan-Lisboa did not have

enough evidence to support her initial benefits claim and so

terminated her benefits. And the agency's appeals council

affirmed.

Hernández-González also submitted evidence in support of

Justiniano-Ramírez's successful disability-benefits application

(or so the agency says, again without contradiction). Unlike what

it had done with Págan-Lisboa, however, the agency suspended

Justiniano-Ramírez's benefits following the special adjudicators'

review of the old applications when Hernández-González's and

Torres-Crespo's fraud came to light. Of note, the agency told him

about the criminal investigation into the fraud scheme, stated

that at least one "discredited source[] provided evidence in [his]

case," and explained that the benefits suspension would run through

- 4 - the "redetermin[ation]" process. A few weeks later, the agency

notified him that it had concluded, first, that because Hernández-

González had "provided incorrect, incomplete, or fraudulent

evidence to us, . . . fraud or similar fault was involved in" his

application; and, second, that he was not "entitled to benefits"

after disregarding the part of the application containing the

fraud. He requested and received an ALJ hearing at which his

lawyer — who also represented Págan-Lisboa — was present.2 But

after ignoring evidence from Hernández-González, the ALJ ended up

cancelling Justiniano-Ramírez's benefits, who then asked the

appeals council to review the ALJ's decision (we will discuss

shortly how the appeals council ruled).

District Court Proceedings

With his case pending before the appeals council,

Justiniano-Ramírez teamed up with Págan-Lisboa and sued the agency

for themselves and for a purported class of others similarly

situated. Running 73 pages and comprising 339 numbered paragraphs,

2 Taking a step back, we note that before the hearing, Justiniano-Ramírez (as relevant here) sued the agency — on behalf of himself and a putative class of persons similarly situated — calling the redetermination process unlawful. See Justiniano v. SSA,

(1st Cir. 2017). The district court dismissed the suit for failure to exhaust administrative remedies.

. And we affirmed, adding that the then-existing circumstances did not justify a judicial waiver of the administrative-exhaustion requirement.

. - 5 - the complaint alleged a variety of claims, including — as relevant

here — the following:

• The complaint quoted the ALJ as saying that "the [inspector

general] notified [the agency] that there was reason to

believe fraud was involved in certain cases . . . involving

evidence supplied by" Hernández-González and Torres-Crespo.

The complaint then noted that the agency's manual says that

benefits recipients cannot appeal the agency's decision to

disregard evidence that the agency's inspector general

flagged as likely a product of fraud. See HALLEX § I-1-3-

25.C.6.; see also Social Security Ruling 16-1p,

. And the complaint alleged that "[t]he ALJs erred"

here by "validating the[se] . . . administrative

instructions" and thus insulating the inspector general's

fraud findings from dispute. Hammering the point home, the

complaint complained that the ALJs "allow[ed]" the

"finding[s] of fraud without" giving the "implicated

person[s]" a chance "to meet the accusation[s] of fraud

against [them]." And, the complaint continued, by not giving

them the chance to fight the fraud allegation, the agency's

redetermination system flouted many legal requirements — an

important one being core requirements of procedural due

process.

- 6 - • The complaint asked the judge to judicially waive the

administrative-exhaustion requirement for Justiniano-Ramírez

and "all others similarly situated."

• And the complaint urged the judge to find that Págan-Lisboa

"was disabled" at all relevant times.3

A few months after the complaint's filing, the appeals

council affirmed the ALJ's decision in Justiniano-Ramírez's case.

Citing federal civil-procedure Rule 12(b)(6) and (b)(1),

the agency then moved to dismiss the federal suit in part, arguing

— so far as pertinent here — along these lines. Plaintiffs'

allegations about the redetermination process, the agency said,

did not state a claim for relief because the system satisfied all

legal requirements — including due process. Moving on, the agency

asserted that Justiniano-Ramírez had not challenged a "final"

agency action. While acknowledging that he had since exhausted

his administrative remedies, the agency stressed that he had not

amended his complaint to reflect that development. And the agency

insisted that his claim for waiver of the exhaustion requirement

was now moot. So according to the agency, the only claim left in

3The complaint also recites lots of legal conclusions and editorializing comments — discussing some due-process cases decided over the years, for instance, and offering a deep dive into legislative history — none of which a court can accept as true. See, e.g., Ashcroft v. Iqbal,

(2009). - 7 - the case concerned whether the ALJ rightly found that Págan-

Lisboa's initial benefits application lacked sufficient evidence.

Opposing the agency's motion, Págan-Lisboa and

Justiniano-Ramírez — so far as relevant here — characterized the

central issue driving the suit as whether the agency can

"terminate[]" disability benefits in proceedings that "depriv[ed]"

them of their due-process rights by not letting them "contest the

existence of fraud in their cases." And to answer what they called

the "simple" question at stake here — whether "a government agency

[may] infringe on property and liberty rights without allowing

individuals to defend themselves" — they quoted a passage from a

divided decision by the Sixth Circuit saying that "refusing to

allow plaintiffs to rebut the [inspector general's] assertion of

fraud as to their individual applications violates the Due Process

Clause of the Fifth Amendment." See Hicks v. Comm'r of Soc. Sec.,

(6th Cir. 2018).

Days later, Págan-Lisboa and Justiniano-Ramírez also

moved to "[s]upplement" the complaint to allege that Justiniano-

Ramírez had exhausted his administrative remedies and to add a

"request[]" for "a finding of disability" for him. For support,

they cited federal civil-procedure rules 15(a)(1) (discussing

amendments as of right) and 15(d) (discussing supplementary

pleadings).

- 8 - Acting on the agency's motion to dismiss, the judge —

ruling in an electronic order — "agree[d]" with the agency that

"[p]laintiffs' challenges to the redetermination process . . .

fail to state a claim" for "relief" and that "[t]he only claim

pending before the [c]ourt is [Págan-Lisboa's] claim for review of

the [agency's] final decision regarding her [benefits]

entitlement."

The judge never ruled on plaintiffs' motion to

"supplement" the complaint, however.

Of crucial importance to this appeal, the agency — in a

major about-face — concluded after the dismissal that Págan-Lisboa

did have a right to show at a new redetermination proceeding that

her benefits application had no fraud and that the targeted

evidence was worth considering (the agency apparently still

believed in the dismissal of Justiniano-Ramírez's case on failure-

to-exhaust grounds). According to the agency, it "itself

determined that reason existed to believe that fraud was involved

in the prior proceedings." This matters because, as we noted

above, the agency's manual says that in cases where the agency —

rather than the inspector general or a prosecutor — discovers

evidence that may have been touched by fraud, the beneficiaries

can "object[] to the disregarding of certain evidence"; and if the

ALJ "is satisfied" that the evidence is not fraudulent, "he or she

- 9 - will consider the evidence." See HALLEX § I-1-3-25.C.4.a. And

having told the judge that it "decline[d] to continue with the

defense of [Págan-Lisboa's] case," the agency requested a remand

for further administrative proceedings under sentence four of

(g). That provision empowers a district judge to

return a case to the agency by "enter[ing] . . . a judgment

affirming, modifying, or reversing" an agency decision "with or

without remanding the cause for a rehearing."

Before plaintiffs could respond to the agency's motion,

the judge granted the request and entered final judgment remanding

Págan-Lisboa's case to the agency, ordering the agency to reinstate

her benefits back to the date the agency terminated them (while

the agency worked on a new decision), and dismissing "all [other]

claims."

Which brings us to today.

Resolving Págan-Lisboa and Justiniano-Ramírez's Appeal

Págan-Lisboa and Justiniano-Ramírez think "the

[j]udgment should be reversed in its entirety." They make four

broad arguments. The first is that the judge wrongly dismissed

their "policy challenges" to the redetermination procedure. The

second is that the judge entered a defective sentence-four remand

and wrongly prevented Págan-Lisboa from opposing the agency's

remand request. The third is that the judge wrongly dismissed

- 10 - Justiniano-Ramírez's claims on failure-to-exhaust grounds. And

the fourth is that the judge should have "waive[d] the exhaustion"

requirement "for [the] class action members."

What looks like a complicated appeal is actually pretty

straightforward — as we now explain, using an analysis similar to

that in the agency's appellate brief.

Redetermination Procedure

Págan-Lisboa and Justiniano-Ramírez's lead brief spends

the most time refighting the failure-to-state-a-claim battle,

which again chiefly centered on whether they should get a chance

to counter the inspector general's (or prosecutor's) fraud

assertions — something we keep much in mind as we take on the

controversy before us. And this representative sample of their

many statements — offered to get us to reverse the judge's failure-

to-state-a-claim ruling — makes our point:

• Págan-Lisboa and Justiniano-Ramírez's lead brief says that

"[t]he termination policy implemented . . . violates [their]

due process rights by depriving them of the ability to contest

the existence of fraud in their cases." They took that

language nearly word-for-word from their motion-to-dismiss

opposition. There they contended "that the termination

policy implemented . . . violates their due process rights by

- 11 - depriving them of the ability to contest the existence of

fraud in their case[s]."

• More, Págan-Lisboa and Justiniano-Ramírez's lead brief states

that

[t]he . . . redetermination policy violates due process by: 1) not giving adequate notice, 2) not disclosing the evidence on which the redetermination is based, 3) not allowing a challenge of the adverse evidence, 4) not making individualized findings of fact, 5) not allowing a challenge of the redetermination, 6) shopping for adjudicators that are far and disconnected from the appellants' circumstances and partial towards the [agency], 7) ignoring existing statutory dispositions, and 8) ignoring existing regulatory dispositions.

That is basically a recycled argument from their motion-to-

dismiss opposition, which was that

[t]he . . . redetermination policy violates due process by: 1) not giving adequate notice, 2) not disclosing the evidence on which the redeterminations were based, 3) not allowing them to challenge the evidence, 4) not making individualized findings of fact, 5) not allowing them to challenge the redetermination, 6) shopping for adjudicators that are far and disconnected from their circumstances and are partial towards the [agency,] 7) not applying existing statutory dispositions, [and] 8) not applying existing regulatory dispositions.

• More still, Págan-Lisboa and Justiniano-Ramírez's lead brief

insists that "[t]he [agency] argues that the fiscal and

administrative burdens to the government outweigh the risks

- 12 - and hardships caused by erroneous deprivation to the

individuals; therefore the policy doesn't violate the

Constitution." That is virtually the same charge appearing

in their motion-to-dismiss opposition, which was that "[t]he

[agency] argues that no constitutional rights are involved

because the fiscal and administrative burdens to the

government outweigh the risk and hardships caused by

erroneous deprivation, therefore the policy doesn't violate

the Constitution."

• Even more, Págan-Lisboa and Justiniano-Ramírez's lead brief

declares that a "[c]ourt does not owe deference to" an

agency's "statutory interpretations" that "unreasonab[ly]"

stopped them from showing their evidence was not tainted by

fraud. That essentially echoes an argument given in their

motion-to-dismiss opposition, which said that a "[c]ourt does

not owe deference to [an agency's] unreasonable

interpretations of the law."

• Even more still, Págan-Lisboa and Justiniano-Ramírez's lead

brief seeks refuge in Hicks. The Sixth Circuit there, they

write (though emphasis ours), "already" stamped "the specific

policy at hand" "unconstitutional." Making their position

crystal clear, they insist (quoting Hicks, but again emphasis

ours) that the Sixth Circuit shot down the very same arguments

- 13 - the agency offers here when it held that "refusing to allow

plaintiffs to rebut the [inspector general's] assertion of

fraud as to their individual applications violates the Due

Process Clause of the Fifth Amendment." See

.

Hicks, they write, "is not binding on First Circuit courts

but it is binding on the agency everywhere [the agency]

operates" — the agency (again, still quoting them) "cannot

treat a policy as unconstitutional for citizens in some states

and as constitutional for citizens in other states." All of

that is a rehash of arguments they floated below in the hopes

of fending off dismissal, seeing how they stressed there (once

again, emphasis ours) that Hicks "found" the "same agency

policy" to be "unconstitutional."

• And even more still, Págan-Lisboa and Justiniano-Ramírez's

lead brief argues at length that statutory language and

legislative history undercut the agency's motion-to-dismiss

theories. Their motion-to-dismiss opposition alludes to

statutory-based arguments too.

That leads us to this point. By focusing their appellate

attack on an agency policy that they say wrongly makes the

inspector general's (or a prosecutor's) fraud accusation gospel,

Págan-Lisboa and Justiniano-Ramírez mistake the reality of their

situation. And that is because they ignore the agency's post-

- 14 - motion-to-dismiss concession that the agency — not the inspector

general (or a prosecutor) — discovered the fraud, meaning that per

agency policy, they must (and will, the agency says) get a chance

to persuade an ALJ that there is no reason to believe that the

complained-of evidence is fraudulent. The agency's brief captures

all this very nicely: "the agency erroneously treated these cases

as it would a referral from the [i]nspector [g]eneral" —

erroneously, because the agency "itself determined that reason

existed to believe that fraud was involved in the prior

proceedings"; so the agency "did not" (but now will) give

"plaintiffs . . . the opportunity to challenge the existence of

fraud in the provision of evidence" at the ALJ hearings, i.e., the

agency "did not" (but now will) give them "the opportunity which

they should have received under agency policy."

We judges work in an adversarial system, not an

inquisitorial one. See, e.g., United States v. Sineneng-Smith,

(2020); McNeil v. Wisconsin,

,

181 n.2 (1991). Which means we rely big-time on litigants for

evidence, research, and argument. See, e.g., Sineneng-Smith,

; McNeil,

n.2. So parties seeking

relief must properly identify the "issues for decision," Sineneng-

Smith,

, setting them "out . . . clearly,

highlighting the relevant facts and analyzing on-point authority,"

- 15 - Rodríguez v. Municipality of San Juan,

(1st Cir.

2011). Now, to repeat what we said a second ago (because it is so

important), Págan-Lisboa and Justiniano-Ramírez's lead brief

challenges an agency process — provided when the inspector general

(or a prosecutor) discovers the fraud, which per the manual is

unreviewable — that is not in play, thanks to the agency's

concession. See HALLEX § I-1-3-25.C.4.a.; id. § I-1-3.25.C.6.4

Their lead brief does not meaningfully contest the agency process

— provided when the agency discovers the fraud, which per the

manual lets beneficiaries object "to the disregarding of evidence"

— that is in play, again, thanks to the agency's concession. See

id. § I-1-3-25.C.4.a. And because they have not properly put the

at-issue process in dispute, their challenge to the

redetermination process is a nonstarter. See generally Rodríguez,

(discussing how not to litigate an issue on

appeal).

Taking a belt-and-suspenders approach, we note that to

the extent Págan-Lisboa and Justiniano-Ramírez believe their lead

brief does challenge the now-at-issue process, we would find that

challenge too "skeletal" or "confusingly constructed" and thus

waived. See

(quotation marks and citations omitted). And to

4 Obviously then we need not decide whether the Sixth Circuit decided Hicks correctly, thus leaving that issue for another day. - 16 - the extent they think they fixed this problem in their reply brief

or at oral argument, we would consider that to be too late and

thus waived as well. See, e.g., United States v. Cruz-Ramos,

(1st Cir. 2021); Conduragis v. Prospect Chartercare,

LLC,

, 518 n.2 (1st Cir. 2018).

Sentence-Four Remand

Next up is Págan-Lisboa's protest about the judge's

sentence-four remand. As a reminder, sentence four of

(g) authorizes a district judge "to enter . . . a judgment

affirming, modifying, or reversing" an agency's decision "with or

without remanding the cause for a rehearing." In Págan-Lisboa's

telling, the judge stumbled because he used sentence four without

specifying that he was affirming, modifying, or reversing the

agency's decision to cancel her benefits. But applying fresh-eyed

review (de novo review, in judge-talk), see Sacilowski v. Saul,

(1st Cir. 2020) (citing, among other authorities,

Seavey v. Barnhart,

(1st Cir. 2001)), we see no basis

to reverse on this issue.

Recall again what triggered the agency's remand request:

realizing it had used the wrong process, the agency found it could

no longer "continue with the defense of [Págan-Lisboa's] case" and

so conceded the need for new agency proceedings where she will now

get to explain why the ALJ can consider evidence labeled possibly

- 17 - fraudulent. And by granting the agency's request, the judge

recognized that the disputed redetermination decision could not

stand — there must be a redo. At least that is implicit in the

judge's judgment — also making us comfortable with this at-least-

that-is-implicit conclusion is that the judge ordered the agency

to put Págan-Lisboa in the position she was in benefits-wise before

the agency's redetermination decision. See generally Hicks v.

Berryhill, No. 16-154,

, at *3 (E.D. Ky. Mar. 31,

2017) (noting that because the agency's redetermination decision

"is reversed," the agency "must . . . return [the beneficiary] to

the position she was in before the agency's decision"). Given

these circumstances, we conclude that the judge's remand was a

reversal — particularly since the Supreme Court says sentence four

applies to cases where the agency "has failed to provide a full

and fair hearing, to make explicit findings, or to have correctly

appl[ied] the law and regulations." See Melkonyan v. Sullivan,

(1991) (emphasis added and citation omitted); see

also Hicks,

, at *1-2 (concluding that a sentence-

four remand — entered without the judge deciding whether the

agency's decision to cancel benefits "was right or wrong" —

amounted to a reversal of the agency's decision, because if the

agency's "process cannot be trusted, neither can its result," and

so "[i]ts result . . . cannot stand" even if the beneficiary "might

- 18 - lose on remand"; also arguing by analogy that a "[c]ourt would not

grant a defendant a new trial and yet keep his conviction in place"

(quotation marks and citation omitted)). For the future, however,

we ask judges using their sentence-four powers to please say

explicitly whether they are affirming, modifying, or reversing an

agency's decision.

Págan-Lisboa makes no effective counterargument either.

Selectively quoting a snippet from Melkonyan — stating

that the district court there "did not make any substantive ruling"

but "merely returned the case to the agency for disposition," see

501 U.S. at 98 — she suggests that before using his sentence-four

authority, the judge here had to first rule on whether she has

sufficient evidence to justify benefits. But as we said in the

last paragraph, Melkonyan makes it clear as glass that a sentence-

four remand is proper where the agency "has failed to . . . have

correctly appl[ied] the law and regulations." See 501 U.S. at

101. And that is exactly what happened in this case, as the agency

concedes.

Somewhat relatedly, Págan-Lisboa theorizes that because

she and Justiniano-Ramírez raise many "legal challenges," the

remand "back to the [agency] without first adjudicating [all] these

issues subjects [them] to piecemeal litigation" and thus makes the

sentence-four remand improper. Without passing on the correctness

- 19 - of what she says, we simply say that because she did not press

this theory in the opening brief but presented it only in the reply

brief, we consider it waived. See, e.g., Cruz-Ramos,

. And the same goes for other appellate arguments not raised

until the reply brief — by way of example (and without limitation):

the claim that "[t]he court could also reverse without a remand

the agency's finding that the evidence shows reason to believe

that fraud was involve[d] in [her and Justiniano-Ramírez's]

cases."

As a last-ditch effort, Págan-Lisboa mentions a district

court rule that pertinently provides that "[u]nless within . . .

14 days after the service of a motion the opposing party files a

written opposition to the motion, the opposing party shall be

deemed to have waived any objection to the motion." See D.P.R.

Civ. R. 7(b). From there, she points out that the judge granted

the agency's remand request without giving her the chance "to

oppose the [agency's] motion" — and in doing so, her argument goes

on, the judge violated her "statutory" and "due process" rights.

She cites no caselaw to support her position, however. That of

course spells trouble because "developing a sustained argument out

of . . . legal precedents" is a party's responsibility, not ours.

See Town of Norwood v. FERC,

(1st Cir. 2000)

(noting that arguments made but not developed do not preserve

- 20 - issues for our review). And even if we were willing to overlook

that defect (and we are not), the only prejudice she alleges from

this supposed local-rule infraction is that she would have argued

that the judge did not comply with sentence four's requirements.

But as noted, we think the judge complied with sentence four's

requirements.5

Dismissal of Justiniano-Ramírez's Claims On Failure-to-Exhaust-Grounds

We can make quick work of Justiniano-Ramírez's claim

that the judge slipped in not considering his amended complaint,

which shows that he (Justiniano-Ramírez) had exhausted

administrative remedies. As the agency rightly concedes here,

Págan-Lisboa and Justiniano-Ramírez attached the amended complaint

to a motion that pertinently invoked federal civil-procedure rule

15(a)(1), which lets plaintiffs amend a complaint "once as a matter

of course" within 21 days of the original complaint, an answer, or

a motion to dismiss — and (to quote the agency) Págan-Lisboa and

Justiniano-Ramírez "timely" moved to amend. Because that rule

authorized the amendment, the judge had to accept it — meaning our

judge legally erred in not doing so, as the agency also concedes.

5 A quick aside: Responding to a post-argument order of ours, the agency wrote that it "has begun the process of reinstating P[á]gan-Lisboa's benefits at this time rather than upon remand to the agency." - 21 - See generally 6 Arthur R. Miller, Mary Kay Kane, and A. Benjamin

Spencer, Federal Practice and Procedure § 1480 (3d ed. 2020)

(noting that "Rule 15(a)(1) states" that a party eligible under

that rule "may amend a pleading once without the permission of the

court or the consent of the parties" (footnotes omitted)).

As for what to do about this, we agree with the agency

that the specific circumstances here require us to send Justiniano-

Ramírez's case back to the district court just so the judge can

accept the amendment and then (to again quote the agency) "remand

[his] case to the agency for new redetermination proceedings

permitting him to challenge the exclusion of evidence submitted by

. . . Hernández-González in his case."6

Waiver of Exhaustion Requirement For "Class Action Members"

There is not much to say about Págan-Lisboa and

Justiniano-Ramírez's claim that we should (emphasis ours)

"judicially waive the exhaustion requirement for all class members

that have not yet exhausted administrative review." A critical

premise of their argument is that the suit became a class action.

6 Another quick aside: Reacting to our post-argument order, the agency also wrote that as part of the new judgment for Justiniano-Ramírez, the judge "could also order reinstatement of benefits back to the date of the ALJ's redetermination . . . or to the date of the termination of [his] benefits" — something that the parties and the judge can sort out on remand. - 22 - But they make no persuasive argument that the suit ever did — the

record discloses no order granting or denying certification, for

instance, and they make no convincing claim of a possible implied

certification.7 See generally Navarro-Ayala v. Hernandez-Colon,

(1st Cir. 1991) (commenting that "[w]hile

express class certification is a fundamental requirement,

uncertified actions have on occasion been recognized as class

actions," like when the parties and the judge acted at all times

as if a class existed); see also Rodríguez,

(noting

that "we deem waived [arguments] not made or [arguments] adverted

to in a cursory fashion"). So their argument goes nowhere.

Wrapping Up

For the reasons recorded above, we affirm the judgment

entered below, with a single exception: as to Justiniano-Ramírez,

we vacate that part of the judgment against him and remand so the

judge can accept the amended complaint and then enter a new

judgment remanding his case (with Págan-Lisboa's) for a new

redetermination proceeding consistent with this opinion. All

parties shall bear their own costs on appeal.

So ordered.

7 Unsurprisingly, Págan-Lisboa and Justiniano-Ramírez's notice of appeal makes no mention of an order granting or denying certification. - 23 -