Doe v. Shibinette

United States Court of Appeals
For the First Circuit

No. 21-1058

JOHN DOE; CHARLES COE; JANE ROE; DEBORAH A. TAYLOR, as guardian
for SCOTT STEPHEN JOHNSTONE, on behalf of themselves and all
others similarly situated,

Plaintiffs, Appellees,

NEW HAMPSHIRE HOSPITAL ASSOCIATION; ALICE PECK DAY MEMORIAL
HOSPITAL; ANDROSCOGGIN VALLEY HOSPITAL; CATHOLIC MEDICAL CENTER;
CHESHIRE MEDICAL CENTER; COTTAGE HOSPITAL; ELLIOT HOSPITAL;
FRISBIE MEMORIAL HOSPITAL; HCA HEALTH SERVICES OF NEW HAMPSHIRE,
(Parkland Medical Center and Portsmouth Regional Hospital);
HUGGINS HOSPITAL; LITTLETON HOSPITAL ASSOCIATION, (Littleton
Regional Hospital); LRGHEALTHCARE, (Franklin Regional Hospital
and Lakes Region General Hospital); MARY HITCHCOCK MEMORIAL
HOSPITAL; MONADNOCK COMMUNITY HOSPITAL; NEW LONDON HOSPITAL;
SPEARE MEMORIAL HOSPITAL; UPPER CONNECTICUT VALLEY HOSPITAL;
VALLEY REGIONAL HOSPITAL; WEEKS MEDICAL CENTER,

Intervenor-Plaintiffs, Appellees,

v.

LORI SHIBINETTE, in her official capacity as Commissioner of the
N.H. Department of Health and Human Services,

Defendant, Appellant,

SOUTHERN NEW HAMPSHIRE MEDICAL CENTER; CONCORD HOSPITAL; ST.
JOSEPH'S HOSPITAL, Nashua; MEMORIAL HOSPITAL, North Conway,

Defendants/Intervenor-Plaintiffs, Appellees,

NEW HAMPSHIRE CIRCUIT COURT DISTRICT DIVISION,

Defendant,

HONORABLE DAVID D. KING,

Third-Party Defendant.
 APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Lynch, Selya, and Barron,
Circuit Judges

Samuel R.V. Garland, Assistant Attorney General, with whom
Anthony J. Galdieri, Senior Assistant Attorney General, and Daniel
E. Will, Solicitor General, were on brief, for appellant Lori
Shibinette.
Aaron J. Curtis, with whom Gilles Bissonette, Henry
Klementowicz, American Civil Liberties Union of New Hampshire,
Theodore E. Tsekerides, Colin McGrath, and Weil, Gotshal & Manges
LLP were on brief, for class appellees.
Michael D. Ramsdell, with whom James P. Harris and Sheehan
Phinney Bass & Green, P.A. were on brief, for hospital appellees.

October 26, 2021
 BARRON, Circuit Judge. This case comes to us on an

interlocutory appeal by the Commissioner of the New Hampshire

Department of Health and Human Services (the "Commissioner"). It

concerns the extent of the state's legal obligations to people who

are deemed to need emergency mental health treatment. The

plaintiffs are a class of individuals who claim to have been held

against their will for too long without due process on the basis

of a certification of their need for such treatment, and a group

of hospitals who claim to have been forced, in violation of their

federal constitutional rights, to retain persons certified to be

in need of such treatment.

The Commissioner challenges the District Court's denial

of her motion to dismiss the plaintiffs' complaints on the ground

that each set of plaintiffs lacks standing and that, in any event,

the Eleventh Amendment independently bars their claims against

her. The Commissioner now also contends to us that, in consequence

of the New Hampshire Supreme Court's recent ruling in Jane Doe v.

Commissioner of the New Hampshire Department of Health and Human

Services, ---A.3d----, No. 2020-0454, 2021 WL 1883165 (N.H. May

11, 2021), which was decided while this appeal was pending in our

Court, there is yet another jurisdictional bar to all the claims

of all the plaintiffs: they are moot.

We see no merit to the Commissioner's challenges to the

District Court's standing and Eleventh Amendment immunity rulings,

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and so we affirm the District Court's rulings in that regard. We

also are dubious of the Commissioner's mootness assertion, at least

given its sweep. Nonetheless, rather than resolve the mootness

issue on our own, we remand it for further consideration, given

that the District Court did not have occasion to consider it or

any of the factual questions that it may implicate.

I.

A.

New Hampshire law provides for the involuntary admission

to the state's mental health services system of anyone who "is in

such mental condition as a result of mental illness to pose a

likelihood of danger to himself or others." N.H. Rev. Stat. Ann.

§ 135-C:27; see also id. §§ 135-C:28(I), :34. New Hampshire law

further provides that an "involuntary emergency admission"

("IEA") -- the type of involuntary admission at issue in this

case -- "may be ordered upon the certificate of" an approved

healthcare professional. Id. § 135-C:28(I).

An "IEA certificate" must identify a "receiving

facility" to which a patient will be admitted for care, custody,

and treatment. Id. § 135-C:29(I); see also id. § 135-C:2(XIV).

Once an IEA certificate is completed, "a law enforcement officer"

must "take custody of the person to be admitted

and . . . immediately deliver such person to" that receiving

facility. Id.

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 New Hampshire law defines "receiving facility" to

include hospitals designated by the Commissioner to provide mental

health treatment. Id. § 135-C:26(II)-(III). New Hampshire law

provides that, "[a]t the receiving facility, any person sought to

be involuntarily admitted for involuntary emergency admission

shall be given immediate notice" of certain rights, including the

right to representation. Id. § 135-C:30.

Private hospitals in New Hampshire are not themselves

"receiving facilities." But, a patient who is admitted to a

receiving facility from a private hospital is admitted only after

the private hospital completes an IEA certificate for that patient,

and the largest receiving facility, New Hampshire Hospital, does

not provide walk-in emergency or crisis services.

Crucial to this case, New Hampshire law provides that

"[w]ithin 3 days after an involuntary emergency admission . . .

there shall be a probable cause hearing in the [state] district

court having jurisdiction to determine if there was probable cause

for involuntary emergency admission." Id. § 135-C:31(I). The

state district court1 is required under New Hampshire law to render

1 The state district court is a division of the New Hampshire
Circuit Court, a state trial court, and should not be confused
with the United States District Court for the District of New
Hampshire. When we refer to the "District Court" in this opinion,
we mean the latter, federal court. We specify where we intend to
refer to state courts.

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a written decision by the end of the court's next regular business

day. Id.

B.

John Doe filed suit against the Commissioner in the

federal District Court on November 10, 2018, on behalf of himself

and all others similarly situated (the "class plaintiffs"). The

operative complaint alleged that Doe, a New Hampshire resident,

was detained pursuant to an IEA certificate at Southern New

Hampshire Medical Center on November 5, 2018 following a suicide

attempt and that he was not given a probable cause hearing within

the five days between that hospital's completion of an IEA

certificate naming Doe and the filing of this lawsuit. The

complaint further alleged that this delay exemplified a "systemic

pattern and practice in New Hampshire." Specifically, the

complaint alleged that the Commissioner interpreted state law to

require that involuntarily admitted patients receive a hearing in

the state district court three days after admission to a receiving

facility, rather than three days after completion of an IEA

certificate, and that, in consequence, members of the putative

class were being detained in hospital emergency departments for up

to twenty-seven days without procedural due process in violation

of the federal and state constitutions and the state law governing

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IEAs.2 The complaint requested declaratory and injunctive relief,

along with fees and costs. The plaintiffs filed a motion for class

certification along with the complaint.

A group of hospitals that admit patients pursuant to IEA

certificates that they complete (the "hospitals") intervened in

the suit. Like the class plaintiffs, the hospitals brought both

federal and state law claims. With respect to their federal law

claims, their operative complaint alleged that the Commissioner

violated their rights under the Takings and Due Process Clauses of

the U.S. Constitution and the Fourth Amendment's protection

against unreasonable seizures. The hospitals disclaimed any

request for compensatory damages and sought only injunctive and

declaratory relief, in addition to nominal damages, costs, and

attorneys' fees.

Both the class plaintiffs and the hospitals originally

named the state circuit court as a "necessary third party" under

Federal Rule of Civil Procedure 19(a) in their initial complaints

but did not do so in their amended complaints. The class

plaintiffs, however, did name the Administrative Judge of the state

circuit court as a defendant, citing the same rule, in their

2 The named plaintiffs also brought individual false
imprisonment claims against the hospitals where they were
detained, and John Doe sought a writ of habeas corpus in the
original complaint before voluntarily dismissing that count.
Those claims are not relevant to this interlocutory appeal, and we
do not discuss them further.

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amended complaint.3 All claims against the Administrative Judge

were later dismissed on Eleventh Amendment grounds.

The Commissioner moved to dismiss under Rule 12(b)(6)

primarily for failure to allege state action and filed an objection

to the motion for class certification. The class plaintiffs and

the hospitals amended their complaints and filed an amended motion

to certify the class in response. The Commissioner again moved

under Rule 12(b)(6) to dismiss both amended complaints for failing

to allege state action. The District Court denied the motions to

dismiss and granted the motion for class certification.

The Commissioner thereafter filed answers to both

complaints, in which she asserted as affirmative defenses Eleventh

Amendment immunity and that the plaintiffs lacked standing.

Following the granting of several extensions, the class plaintiffs

moved to compel the Commissioner to participate in a status

conference so that the case could proceed to discovery. The

District Court granted the motion, and the parties agreed to a

deadline to submit a discovery plan, which they met. Both sets of

plaintiffs voluntarily dismissed their state law claims against

the Commissioner. The Commissioner continued to assert her

jurisdictional defenses throughout these proceedings.

3The Administrative Judge oversees the state circuit court
system, and thus the administration of probable cause hearings.

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 After the status conference, the District Court issued

an order holding the adoption of the discovery plan in abeyance

and requesting briefing on the Commissioner's jurisdictional

defenses. The Commissioner then filed motions to dismiss both

sets of plaintiffs' claims under Rule 12(b)(1) based on the

Eleventh Amendment and the plaintiffs' asserted lack of standing.

The District Court denied the motion to dismiss the class

plaintiffs' claims. The District Court largely denied the motion

to dismiss the hospitals' claims as well. However, the District

Court granted the motion to dismiss the hospitals' claims as to

their request for nominal damages based on the Commissioner's

assertion of Eleventh Amendment immunity.

C.

The Commissioner now appeals the District Court's

adverse standing and Eleventh Amendment rulings under the

collateral order doctrine. See P.R. Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc., 506 U.S. 139, 141 (1993) (holding that "a

district court order denying a claim by a State or a state entity

to Eleventh Amendment immunity from suit in federal court may be

appealed under the collateral order doctrine"); Dantzler, Inc. v.

Empresas Berríos Inventory & Operations, Inc., 958 F.3d 38, 43, 46

(1st Cir. 2020) (determining that, "[b]ecause standing is a

prerequisite to a federal court's subject matter jurisdiction, and

we must assure ourselves of our jurisdiction under the federal

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Constitution before we proceed to the merits of a case," we are

able to review a challenge to standing on an appeal from the denial

of immunity (internal citations and quotation marks omitted)).

There is, however, a new issue in the case that the Commissioner

asks us to address that stems from the New Hampshire Supreme

Court's opinion in Jane Doe, which was issued between the filing

of the appellees' briefs in this case and the filing of the

appellant's reply brief. We briefly describe how that ruling bears

on the matters before us in this appeal.

In Jane Doe, the New Hampshire Supreme Court confronted

a request for habeas relief under New Hampshire law by a single

petitioner who claimed that she had been denied her right to a

probable cause hearing within three days of the completion of an

IEA certificate that named her. Id. at *2. Jane Doe held that,

under New Hampshire law, a probable cause hearing must be held

within three days of the completion of an IEA certificate to

involuntarily admit a patient to the state mental health services

system, which Jane Doe defined to include certain approved medical

service providers at private hospitals who complete IEA

certificates. Id. at *7, *10. Jane Doe thus rejected the

interpretation of New Hampshire law that the Commissioner had

advanced both to that court and to us in her opening brief, under

which such a hearing is said to be required to be held only within

three days of the patient named in the completed IEA certificate

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arriving at a "receiving facility" within the meaning of N.H. Rev.

Stat. Ann. §§ 135-C:2 and :26. Id. at *7, *12.

Following Jane Doe, moreover, the Governor of New

Hampshire issued Executive Order 2021-09 (the "Order"), which

directed "the State of New Hampshire [to] take immediate, targeted,

and direct action to ensure there is a system in place to help

individuals in mental health crisis have timely and appropriate

medical care." The Order further authorized and directed the New

Hampshire Department of Health and Human Services to use emergency

administrative rules to increase access to mental health services

and to "clarify the roles New Hampshire hospitals have in caring

for those patients who present at a hospital with mental health

concerns." The Order also required the Department "to review all

mental health services in the State of New Hampshire to determine

if current providers are equipped to meet the needs of New

Hampshire citizens and, where necessary, [to] identify new and/or

alternative providers," and to "expand the number of Designated

Receiving Facility ('DRF') beds on an expedited basis."

The Commissioner has issued certain emergency rules in

response to the Order. Neither the Order nor the emergency rules

set forth any express guarantee that either group of plaintiffs

will receive the relief that they seek.

The Commissioner asserts in her reply brief to us that

the New Hampshire Supreme Court's decision in Jane Doe has mooted

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this case, because it entitles both groups of plaintiffs to all

the relief that they seek. With our permission and without

opposition from the Commissioner, both sets of plaintiffs filed

sur-reply briefs, accompanied, on the hospitals' part, by data

showing that as of that time there continued to be a waitlist for

beds at receiving facilities.

II.

As we have explained, the Commissioner originally

presented only two issues to us on interlocutory appeal: standing

and Eleventh Amendment immunity. She now seeks to add a third

issue to the mix: mootness. Because each of these issues is

jurisdictional, we may take them up in any order. United States

v. Reid, 369 F.3d 619, 624 (1st Cir. 2004) ("[J]urisdictional

issues may be addressed in any sequence." (citing Ruhrgas AG v.

Marathon Oil Co., 526 U.S. 574, 584-85 (1999))).

The Commissioner invites us to remand without reaching

either the standing or Eleventh Amendment immunity issues on

account of the New Hampshire Supreme Court's new ruling in Jane

Doe. The record before us, however, is sufficiently developed for

us to resolve those issues now, thereby obviating the possible

need for wasteful future appeals. Thus, we start with the issue

of standing and then turn to the issue of Eleventh Amendment

immunity. We then circle back to the newly raised mootness issue

at the end.

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 A.

Article III of the Constitution restricts our subject

matter jurisdiction to cases or controversies. See Penobscot

Nation v. Frey, 3 F.4th 484, 508 (1st Cir. 2021) (en banc). To

satisfy that constraint, a plaintiff must demonstrate that she has

standing to bring the claim that she seeks to have adjudicated.

See id. A plaintiff has standing if she has "(1) suffered an

injury in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be redressed

by a favorable judicial decision." Spokeo, Inc. v. Robins, 136 S.

Ct. 1540, 1547 (2016).

The Commissioner argues that the injuries alleged by

both the class plaintiffs and the hospitals are not fairly

traceable to her and that the requested relief would not redress

them. She thus contends that all their claims must be dismissed

for lack of standing.

Our review of the District Court's denial of the motions

to dismiss the plaintiffs' claims for lack of standing is de novo.

See Coggeshall v. Mass. Bd. of Registration of Psychs., 604 F.3d

658, 662 (1st Cir. 2010). At this stage of the litigation we must

construe the operative complaints "liberally and treat all well-

pleaded facts as true, according the plaintiff[s] the benefit of

all reasonable inferences." Murphy v. United States, 45 F.3d 520,

522 (1st Cir. 1995).

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 1.

We start with the Commissioner's challenge to the

hospitals' standing. We note that the Commissioner does not

dispute that their complaint alleges an injury in fact. Nor do we

see how she could.

The complaint alleges that the hospitals have been

unlawfully forced to retain involuntarily admitted patients for

long periods of time in their facilities and thus to provide them

with rooms, medical care, food, security, and support from staff,

who also need to repeatedly fill out successive IEA certificates

every three days. In consequence, the complaint continues, the

hospitals have fewer beds to treat other patients who require

admission and are instead required "to perform the State's

obligations" and to undertake new construction to create the

necessary secure space. It alleges that one hospital retained

patients for an average length of five days in 2018.

The Commissioner contends, however, that the injuries

claimed by the hospitals are not fairly traceable to any violation

of law by her and thus are not redressable by the relief that the

hospitals seek in their suit against her. We are not persuaded.

The Commissioner argues that the costs that the

hospitals claim to have incurred in claiming to have been injured

are self-imposed. She points out that it is members of the

hospital staff who fill out the IEA certificates and that no

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statute compels them to complete those certificates. Thus, the

Commissioner contends, the costs to the hospitals of holding

patients at their facilities pursuant to IEA certificates are

incurred due to the hospitals' own decisions to admit them.

Furthermore, the Commissioner contends that there is a

traceability problem -- and thus a redressability problem -- for

yet another reason. She contends that "law enforcement" -- and

thus not her, as Commissioner -- is responsible for the transport

to "receiving facilities" of patients named in IEA certificates.

But, these arguments fail to address the fact that the

hospitals' complaint plausibly alleges that the Commissioner has

directed the hospitals not to release the patients named in IEA

certificates prior to their being given a probable cause hearing,

notwithstanding the undisputed existence of a state law

requirement for private hospitals in New Hampshire to have open

emergency rooms and to treat patients in line with professional

ethical standards, N.H. Rev. Stat. Ann. § 151:2-g; N.H. Code Admin.

R. Ann. Med. § 501.02(h). Thus, the Commissioner offers no

explanation for why the hospitals' alleged injuries are not fairly

traceable to her alleged failure to ensure that such a hearing is

held in the timely manner that they contend that federal law

requires, even though we understand each of the federal

constitutional claims at issue to be predicated necessarily --

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though not entirely -- on that alleged failure. Accordingly, we

see no merit in her traceability and redressability arguments.

2.

Turning to the class plaintiffs' standing, the

Commissioner once again does not dispute that the complaint at

issue alleges a clear injury in fact. Nor, again, do we see how

she could. The complaint alleges that the class plaintiffs are

being held against their will without having been afforded due

process for as many as twenty-seven days.

The Commissioner argues, however, that this injury, too,

is not traceable to any violation of law that she has committed

and thus is not redressable by the relief that the class plaintiffs

seek. In support of that contention, she argues that the state

circuit court system, law enforcement, the state legislature, and

private hospitals are responsible for the class plaintiffs'

claimed injury, because they are the ones responsible for failing

to hold a hearing, failing to transport patients to a hearing,

failing to appropriate enough money to expand the number of beds

at receiving facilities, and the control of emergency departments,

respectively.

But, the Commissioner does not dispute that the class

plaintiffs plausibly allege in their complaint that she is the one

who bars them from being released from the hospitals in which they

are being held until a probable cause hearing is conducted. Nor

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does she dispute that they have plausibly alleged that she has not

ensured that a probable cause hearing is held as soon as they

contend that it must be. Thus, because they have plausibly alleged

that she causes their alleged injury by failing to ensure that

such a hearing is held, her traceability and redressability

contentions are without merit.

B.

The Commissioner's remaining contention in her opening

brief is that the Eleventh Amendment makes her immune from the

claims of both the class plaintiffs and the hospitals. The

Eleventh Amendment generally bars suits against states and state

officials. However, the exception to Eleventh Amendment immunity

laid out in Ex parte Young, 209 U.S. 123 (1908), allows federal

courts to "'grant[] prospective injunctive relief to prevent a

continuing violation of federal law,' in part because 'a suit

challenging the constitutionality of a state official's action in

enforcing state law is not one against the State.'" Negrón-Almeda

v. Santiago, 528 F.3d 15, 24 (1st Cir. 2008) (quoting Green v.

Mansour, 474 U.S. 64, 68 (1985)).

"In determining whether the doctrine of Ex parte

Young avoids an Eleventh Amendment bar to suit, a court need only

conduct a 'straightforward inquiry into whether [the] complaint

alleges an ongoing violation of federal law and seeks relief

properly characterized as prospective.'" Verizon Md., Inc. v.

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Pub. Serv. Comm'n, 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur

d'Alene Tribe of Idaho, 521 U.S. 261, 296 (1997) (O'Connor, J.,

concurring in part and concurring in the judgment)). Our review

is de novo. Coggeshall, 604 F.3d at 662.

Both sets of plaintiffs seek prospective injunctive

relief, and the Commissioner does not contend otherwise.4 She

first contends, however, that neither set of plaintiffs alleges

that she has violated federal law and that, in fact, each set seeks

merely to require that she comply with state law. She thus

contends that the Eleventh Amendment bars her from being subjected

to suit on those claims under Pennhurst State School & Hospital v.

Halderman, 465 U.S. 89, 106 (1984). We do not agree with the

Commissioner's characterization of the claims that are at issue.

The class plaintiffs allege that the Commissioner has

deprived them of their liberty without the due process to which

they are entitled under the federal Constitution. Thus, at least

at first blush, the class plaintiffs seek to require the

Commissioner to comply with federal, not state, law and so, in

that respect, appear to bring claims that fall squarely within the

4The Commissioner does argue in her reply brief that
injunctive relief is inappropriate as a matter of law in light of
Jane Doe. Assuming without deciding that this argument is
jurisdictional and thus properly before us, we consider the
argument a strand of the Commissioner's mootness argument, which
we address infra.

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Ex parte Young exception, notwithstanding the Commissioner's

contrary contention.

The Commissioner responds that in fact the class

plaintiffs' claims are state law claims masquerading as federal

law claims. In her view, the class plaintiffs' claims merely seek

to require her to comply with their interpretation of the three-

day requirement for holding probable cause hearings under New

Hampshire law and so seek to compel her to comply with what is at

root a purely state law obligation, which is just what Pennhurst

precludes.

The problem with the Commissioner's argument is that the

class plaintiffs contend that, even if New Hampshire law were

different than it now is with respect to the duty of the

Commissioner to provide for a probable cause hearing within three

days of the signing of an IEA certificate, see Jane Doe, No. 2020-

0454, 2021 WL 1883165, at *12 (quoting John Doe v. Comm'r, N.H.

Dep't of Health and Hum. Servs., No. 18-cv-1039, 2020 WL 2079310,

at *11 (D.N.H. Apr. 30, 2020)) (providing that the Commissioner

has a legal duty to "provide for probable cause hearings within

three days of when an [involuntary emergency admission]

certificate is completed" (alteration in original)), they would

still be entitled under the Fourteenth Amendment to an injunction

directing the Commissioner to provide probable cause hearings

within the time that they contend due process demands that such

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hearings be held. They are thus plainly seeking more than just a

direction that state officials must "conform their conduct to state

law," Pennhurst, 465 U.S. at 106, regardless of whether their

contention about what the federal Constitution requires in terms

of setting such hearings has merit, see Vega v. Semple, 963 F.3d

259, 283-84 (2d Cir. 2020) ("Plaintiffs seek prospective relief

. . . to remedy alleged violations of both federal and state

law. . . . While any relief ultimately granted must serve to

remedy a violation of federal law, the Pennhurst doctrine does not

compel dismissal of claims for prospective relief against state

officers in their official capacities for alleged violations of

federal law simply because the party seeking such relief refers to

state law in order to bolster their federal claim.").

We turn, then, to the claims of the hospitals. Like the

class plaintiffs, they appear to be alleging violations of federal

rather than state law, despite what the Commissioner says. Indeed,

their complaint alleges that in violation of the Fourteenth

Amendment to the U.S. Constitution the Commissioner has taken their

private property for public use without just compensation,

deprived them of the right to due process of law, and unreasonably

seized their property.

The Commissioner nonetheless contends, much as she did

with respect to the claims of the class plaintiffs, that, despite

their federal veneer, the hospitals' claims are mere state law

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claims. She premises that contention on her assertion that each

of these supposed federal law claims is dependent on the allegation

that she has failed to comply with a purely state law obligation

to hold a probable cause hearing for a patient involuntarily

admitted based on an IEA certificate within three days of the

completion of that certificate. But, this contention overlooks

the fact that, like the class plaintiffs, the hospitals contend

with respect to each of their federal law claims that the

Commissioner's obligation to hold such hearings as quickly as they

contend that they must be held is itself rooted in the federal

Constitution rather than state law.5 Thus, for the same reason

that Pennhurst provides no basis for dismissing the claims of the

class plaintiffs, it also provides no basis for dismissing the

claims of the hospitals.

The Commissioner does separately argue that the Ex parte

Young doctrine is not applicable to either the class plaintiffs'

claims or the hospitals' because the State of New Hampshire is the

real, substantial party in interest, see Pennhurst, 465 U.S. at

101, and she advances two arguments to support that contention.

Neither one, however, is persuasive.

Although, as noted above, the hospitals seek only injunctive
5

relief, their takings claim is dependent on the State's failure to
provide "just compensation" as the federal Constitution requires
for a taking. See U.S. Const. amend. V.

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 First, the Commissioner claims that the state is the

real, substantial party in interest because, to provide effective

relief for any of the claims by either set of plaintiffs, she would

need to exercise authority that, insofar as it resides anywhere

within state government, does not reside with her. But, we see no

basis for concluding that a request for the Commissioner to

exercise her authority to ensure that probable cause hearings are

held in the timely manner they contend is required is not a request

that seeks for her to exercise the powers of her office. See Jane

Doe, No. 2020-0454, 2021 WL 1883165, at *12.

Moreover, the hospitals contend that their injuries are

traceable to the Commissioner because she directs them to continue

to hold patients beyond the period that they contend she may, under

federal law, do so. Yet, the Commissioner does not explain how

she is without authority to comply with a federal law obligation

-- insofar as it exists -- to refrain from imposing such a

requirement on the hospitals.

The second reason that the Commissioner advances for

concluding that the state is the real, substantial party in

interest is that both sets of plaintiffs seek relief that, she

claims, would interfere with the public administration of the state

mental health system. See Pennhurst, 465 U.S. at 101 n.11. The

Commissioner premises this contention in her briefing to us,

however, solely on the assertion that she is not required to give

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probable cause hearings within three days of the completion of an

IEA certificate. The New Hampshire Supreme Court's decision in

Jane Doe, however, necessarily strips that contention of any force,

and she does not develop any argument in its place. See United

States v. Zannino, 895 F.2d 1, 17 ("[I]ssues adverted to in a

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.").

C.

The Commissioner does also argue in her reply brief that

both sets of plaintiffs' claims are moot because Jane Doe has

already granted them all the relief that they seek. Both sets of

plaintiffs take issue with the Commissioner on this score. They

point out that Jane Doe was a habeas case involving one plaintiff

and so resulted in no judgment against the Commissioner that they

may enforce. They also contend that their alleged injuries are

continuing because probable cause hearings continue to be delayed.

The hospitals add that the Commissioner's emergency rules seek to

require the hospitals to provide more services to the patients

awaiting transfer to receiving facilities whom they are holding.

The class plaintiffs, for their part, argue that they are entitled

to additional process that Jane Doe does not guarantee.

Given these contentions, we are dubious that every claim

in this case is moot, especially given the limited scope of Jane

Doe -- for example, Jane Doe did not address any issues implicated

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by the Takings Clause. But, rather than resolve this newly raised

issue on appeal, we conclude that it is prudent to leave it to the

District Court to address it in the first instance on remand. That

is especially so insofar as the assertion of mootness may implicate

any questions of fact that the District Court has not had an

opportunity to address.

III.

We affirm the rulings of the District Court. We remand

for further proceedings consistent with this opinion.

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