United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 12, 2007 Decided December 14, 2007
No. 06-5253
MARTIN CODY, ET AL.,
APPELLANTS
v.
TIMOTHY C. COX,
CHIEF OPERATING OFFICER, ARMED FORCES RETIREMENT
HOME, AND
ROBERT M. GATES, SECRETARY OF DEFENSE,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 05cv01041)
David H. Bamberger argued the cause for appellants. With
him on the briefs was J. David Folds.
Brian C. Baldrate, Special Assistant United States Attorney,
argued the cause for appellees. With him on the brief were
Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence,
Assistant U.S. Attorney. Steven M. Ranieri, Assistant U.S.
Attorney, entered an appearance.
Before: GINSBURG, Chief Judge, and SENTELLE and
BROWN, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge BROWN.
Concurring opinion filed by Chief Judge GINSBURG.
BROWN, Circuit Judge: Plaintiffs are elderly veterans who
seek to force the Armed Forces Retirement Home to provide
“high quality” health care, as required by 24 U.S.C. § 413(b).
The district court dismissed their case as moot, relying on new
amendments to section 413. We reverse and hold the case is not
moot and subsection 413(b) is not committed to agency discre-
tion by law.
I
The Armed Forces Retirement Home-Washington D.C.
(“Home”), provides full-time housing and medical care for
approximately 1,000 elderly veterans. In 2003, the Chief
Operating Officer of the Home (“COO”) introduced a series of
cost-saving measures that plaintiffs, a group of full-time
residents at the Home, claim led to a severe decrease in the
quality of medical care. The alleged deficiencies include
unavailability of physicians and dentists, neglect of patients, and
delays in obtaining prescription drugs.
In 2005, plaintiffs sued the COO and the Secretary of
Defense (“defendants”), requesting an injunction to force
defendants to provide “high quality” health care as required by
24 U.S.C. § 413(b). They asked the district court to mandate the
Home to: maintain “a primary treatment room, staffed by an
on-location physician, to provide primary health care to resi-
dents of the Home seven days a week, twenty-four hours a day”;
maintain “the ability to provide promptly the medications
required for the treatment of residents”; maintain “the ability to
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provide on-site x-ray services, electrocargiogram [sic] services,
laboratory work, and such other services as are required to
provide for the primary health care needs of the residents”;
provide “annual examinations for each resident to assess their
overall physical and mental condition”; and provide “adequate
resources (such as transportation).” Their requested relief was
not “limited to” these remedies and they also asked the court to
“[a]ward such other and further relief, including costs and
attorneys’ fees, as the Court may deem just and proper.”
In 2006, Congress amended section 413, mandating specific
measures regarding physicians, dentists, and transportation, and
requiring the COO to issue uniform standards to ensure access
to care. The district court found that these amendments ren-
dered plaintiffs’ claims moot and granted defendants’ motion to
dismiss the case. See Cody v. Rumsfeld, 450 F. Supp. 2d 5, 9-11
(D.D.C. 2006). Plaintiffs now appeal.
II
The mootness doctrine ensures that federal courts only
decide ongoing cases and controversies. Clarke v. United States,
915 F.2d 699, 700-01 (D.C. Cir. 1990) (en banc). For a case to
become moot, it must be “impossible for the court to grant ‘any
effectual relief whatever.’” Church of Scientology of Cal. v.
United States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green,
159 U.S. 651, 653 (1895)).
When plaintiffs filed their complaint, subsection 413(a)
provided that a resident at the Home “shall receive the services
authorized by the Chief Operating Officer.” 24 U.S.C. § 413(a)
(Supp. I 2001)). Subsection (b) was the only limitation on the
COO’s discretion and mandated that the Home “shall provide
for the overall health care needs of residents in a high quality
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and cost-effective manner, including on site primary care,
medical care, and a continuum of long-term care services.” §
413(b) (emphasis added).
In January 2006, Congress amended section 413 by adding
more specific requirements. See National Defense Authoriza-
tion Act for Fiscal Year 2006, Pub. L. No. 109-163, § 909(a),
119 Stat. 3136, 3404-05. While leaving subsection (b) substan-
tially intact, the amendments inserted subsections (c) and (d) as
additional limitations on the COO’s discretion under subsection
(a). Under subsection (c), the Home must “have a physician and
a dentist- (A) available at the facility during the daily business
hours of the facility; and (B) available on an on-call basis at
other times,” and those professionals must “have the skills and
experience suited to residents of the facility.” Under subsection
(d), the Home must “provide daily scheduled transportation to
nearby medical facilities used by residents of the facility,” and
“may provide, based on a determination of medical need,
unscheduled transportation for a resident of the facility to any
medical facility located not more than 30 miles from the facility
for the provision of necessary and urgent medical care for the
resident.” Finally, under subsection (c)(3), “the Chief Operating
Officer, in consultation with the Medical Director, shall estab-
lish uniform standards, appropriate to the medical needs of the
residents, for access to health care services during and after the
daily business hours of the facility.”
The district court held that the newly enacted subsections
rendered plaintiffs’ complaint moot. In essence, the court
concluded that by adding these new subsections, Congress made
subsection (b)’s requirement that the Home provide “high
quality and cost-effective” health care a mere redundancy.
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Yet, “the normal assumption is that where Congress amends
only one section of a law, leaving another untouched, the two
were designed to function as parts of an integrated whole.”
Markham v. Cabell, 326 U.S. 404, 411 (1945). Under the newly
amended subsection (a), the COO’s discretion is limited by
“subsections (b), (c), and (d).” This demonstrates subsection
(b)’s “high quality” mandate has force beyond subsections (c)
and (d). Accordingly, we hold section 413 functions as an
“integrated whole,” with subsections (c) and (d) serving as a
baseline that does not exhaust subsection (b)’s “high quality and
cost-effective” health care mandate. The district court could
have provided meaningful relief under subsection (b), notwith-
standing the new subsections.1
Under the district court’s interpretation, the COO could
decide to provide no physical examinations for residents simply
because examinations are not specified in subsections (c) and
(d). Similarly, on this reading, the COO could decide to hire
just one physician for 1,000 elderly residents because subsection
(c) only requires that “a physician” be “available.” Conversely,
under our interpretation, the COO could provide no examina-
tions and only one physician only if doing so would satisfy
subsection (b)’s “high quality and cost-effective” health care
mandate. While the requirements of subsections (c) and (d)
inform this “high quality and cost-effective” inquiry, they do not
completely exhaust its scope.
1
While its wording was unclear, the district court did not decide
whether the Home complied with the newly enacted subsections (c)
and (d). See Cody, 450 F. Supp. 2d at 10 n.2. This was the proper
course, since plaintiffs had not alleged violations of these new
subsections. On remand, plaintiffs may choose to amend their
complaint to reflect these changes. See FED. R. CIV. P. 15(a)(2) (“The
court should freely give leave [to amend] when justice so requires.”).
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We conclude plaintiffs’ complaint is not moot, either for the
subjects mentioned by subsections (c) and (d), like physicians
and transportation, or for those not specifically addressed by
those subsections, like physical examinations and medical
supplies.2
III
Defendants claim subsection (b)’s “high quality and cost-
effective” health care requirement is exempted from judicial
review under the Administrative Procedure Act because the
COO’s decision is “committed to agency discretion by law”
2
The district court found plaintiffs’ requests for examinations,
medical supplies, and transportation were premature because the COO
had not issued “uniform standards” under subsection 413(c)(3) or
exercised his discretion under subsection (d)(1). Cody, 450 F. Supp.
2d at 9-10 (“For this Court to order the relief requested prior to those
standards being set would supplant the power” Congress gave to the
COO). The Chief Judge’s concurrence seems to adopt the district
court’s notion that the COO must, apart from providing care,
“promulgate” more “specific” standards. Concurring op. at 2. Yet,
as defendants’ counsel explained at oral argument: “[The COO is]
issuing standards all the time and that’s what a Chief Operation
Officer does. When he establishes a new bus schedule, when he sets
up x-ray services or contracts out a doctor, that’s what he does . . . .”
This shows the COO, in “establish[ing] uniform standards” and
exercising his discretion, is not contemplating a more formal process
than continuing to provide care at the Home, and no party has
suggested this approach is inconsistent with subsections 413(c)(3) and
(d)(1). Accordingly, the district court’s concern that its involvement
in this dispute would be premature was unfounded.
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under 5 U.S.C. § 701(a)(2).3 To prevail, defendants must rebut
the presumption that agency action is judicially reviewable by
showing “the relevant statute ‘is drawn so that a court would
have no meaningful standard against which to judge the
agency’s exercise of discretion.’” Lincoln v. Vigil, 508 U.S.
182, 191 (1993) (quoting Heckler v. Chaney, 470 U.S. 821, 830
(1985)). Defendants have failed to satisfy this burden.
First, section 413 does not fall into one of the narrow
categories that usually satisfies the strictures of subsection
701(a)(2). See Lincoln, 508 U.S. at 191-92. This case does not
involve “second-guessing executive branch decision[s] involv-
ing complicated foreign policy matters.” Legal Assistance for
Vietnamese Asylum Seekers v. Dep’t of State, 104 F.3d 1349,
1353 (D.C. Cir. 1997). Nor does it relate to an agency’s refusal
to undertake an enforcement action, Heckler, 470 U.S. at 831,
or its determination about how to spend a lump-sum appropria-
tion, Lincoln, 508 U.S. at 192.
Second, while subsection 413(a) gives the COO broad
discretion in administering care, it qualifies that discretion with
the phrase: “[e]xcept as provided in subsection (b), (c), and (d).”
Plainly, Congress intended subsection (b)’s “high quality and
cost-effective” standard to limit the COO’s discretion under
subsection (a). Although “high quality and cost-effective”
health care is a tricky standard for a court to apply, that diffi-
cultly is not unique to this statute. For example, in determining
whether doctors are immune from suit while taking part in
professional review activities, courts and juries must decide,
3
We may consider this argument even though defendants did not
cross-appeal because they are only seeking to support the district
court’s judgment on an alternative ground. See United States v. Am.
Ry. Express Co., 265 U.S. 425, 435 (1924).
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under an objective standard, whether the doctors acted with
“reasonable belief” that their actions were “in furtherance of
quality health care.” 42 U.S.C. § 11112(a)(1); see also Mathews
v. Lancaster Gen. Hosp., 87 F.3d 624, 635 (3d Cir. 1996).
Furthermore, 5 U.S.C. § 701(a)(2) provides a “very narrow
exception” that applies only in “rare instances.” Citizens to
Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971).
The difficulty of defining the boundaries of “high quality and
cost-effective” health care is insufficient to make subsection (b)
one of those rare instances.
We have regularly found Congress has not committed
decisions to agency discretion under far more permissive and
indeterminate language. For example, in Dickson v. Secretary
of Defense, 68 F.3d 1396 (D.C. Cir. 1995), we found judicial
review was available for abuse of discretion when the statute
stated that a board “may excuse a failure to file [a request to
correct an error in a military record] within three years after
discovery if it finds it to be in the interest of justice.” Id. at
1399-1404. If language that a board “may” take an action if it
“finds it to be in the interest of justice” provides a “meaningful
standard against which to judge the agency’s exercise of discre-
tion,” Lincoln, 508 U.S. at 191, surely wording mandating that
the COO “shall” provide “high quality and cost-effective” health
care does so as well.
IV
We conclude plaintiffs’ allegations under subsection (b)
are neither moot nor “committed to agency discretion by
law.” We therefore reverse the judgement of the district court
and remand the case for further proceedings.
So ordered.
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GINSBURG, Chief Judge, concurring: I write separately only
because I do not agree with the Court’s reason for holding the
issues in this case are ripe for decision. I do not disagree with
the Court’s conclusion.
The district court read the amendment of 24 U.S.C. § 413
largely to supplant the mandate of § 413(b) that the Home
provide “high quality and cost-effective” health care. For
example, because § 413(c)(1)(A) provides “the Retirement
Home shall have a physician and a dentist ... available at the
facility during the daily business hours of the facility,” the
district court concluded that the statute did not oblige the Home
to have a physician on site overnight and therefore that the
amendment mooted the plaintiffs’ prayer for that relief. See Ct.
Op. at 4-5. The district court also held the amendment made
unripe all the plaintiffs’ claims it did not moot. 450 F. Supp. 2d
at 9-10. Apparently reading the amendment to make § 413(b)
applicable only when the COO provides care pursuant to §
413(c)(3), the court noted the COO had not yet issued standards.
See, e.g., id. at 9 (“[T]he standards controlling ... access to
medication ... are yet to be established under [§ 413(c)(3)] by
[the] COO. ... Accordingly, this relief requested by plaintiffs is
being sought prematurely ....”). The court was troubled also that
the COO was yet to exercise his discretion pursuant to § 413(d).
Id.
The Court seizes upon Government counsel’s statement at
oral argument that the COO is “issuing standards all the time,”
as though that addressed the district court’s concern with
ripeness. Ct. Op. at 6 n.2. The Court infers counsel’s position
was that § 413(c)(3) does not require “a more formal process
than continuing to provide care at the Home.” Id. That is not,
however, the position of the Government, the brief of which
adopted the view of the district court: “Since [the COO] has yet
to establish ... standards, the District Court properly held” the
case was unripe. The plaintiffs, too, view § 413(c)(3) as
requiring the COO to do more than provide care: “[I]t has now
2
been seventeen months since the statute was amended to require
the COO to issue the standards, but they still have not been
issued.” It is hardly surprising, therefore, that “no party has
suggested [the Court’s] approach is inconsistent with” the
statute. Ct. Op. at 6 n.2.
In context, moreover, I think it clear counsel was not
addressing the scope of § 413(c)(3) and did not represent that
the COO had promulgated “standards.” He discussed neither the
text nor the purpose of the amendment. Nor did he explain why
reading the statute as the Court now does would not render §
413(c)(3) a nullity. Furthermore, counsel’s examples of
“standards” were just instances of the Home providing care.
(“[The COO is] issuing standards all the time .... When he
establishes a new bus schedule, when he sets up x-ray services
or contracts out a doctor, that’s what he does.”)
Considering that the Court has an obligation independently
to determine whether the district court had jurisdiction, we
should not strain to interpret counsel’s ex tempore remark at oral
argument as establishing a fact for which there is no record
support and which contravenes the same party’s written
submission. Even as the Court interprets counsel’s statement,
moreover, that statement does not address the district court’s
concern that the COO had yet to exercise his discretion
regarding the provision of transportation pursuant to §
413(d)(1).
In my view, it is nonetheless clear, quite apart from
counsel’s statement, this case is ripe. The plaintiffs complain
that the Home does not provide care consistent with the standard
set out in § 413(b) (“high quality and cost-effective” health
care), not that the COO has violated his obligations to
promulgate more specific standards pursuant to § 413(c)(3) and
to provide for the transportation of residents pursuant to §
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413(d)(1). Whatever the role of those provisions, they do not
displace the mandate of § 413(b). For instance, the plaintiffs
assert that § 413(b) requires the COO to provide x-ray services
on-site, as the Home used to do. The COO already has decided
to eliminate this service, although he did so through an informal
adjudication rather than by promulgating a “standard” under §
413(c)(3). That decision and others like it have allegedly
injured the plaintiffs and given rise to a live controversy over the
question whether the Home is providing the “high quality and
cost-effective” health care required of it by § 413(b).