FILED
NOT FOR PUBLICATION APR 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHARON NEWTON-NATIONS, No. 12-16152
Plaintiff, D.C. No. 2:03-cv-02506-ROS
And
MEMORANDUM*
DONALD MCCANTS and NAHRIN
SHAMOON,
Plaintiffs - Appellants,
v.
THOMAS BETLACH, Director of the
Arizona Health Care Containment System
and KATHLEEN SEBELIUS, Secretary of
the United States Department of Human
Services, in their official capacities,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Senior District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted April 10, 2014**
San Francisco, California
Before: TALLMAN and CLIFTON, Circuit Judges, and DUFFY, Senior District
Judge.***
Plaintiffs are a certified class of residents of Arizona and enrollees in
Arizona’s state Medicaid Program, Arizona Health Care Cost Containment System
(“AHCCCS”), who appeal the district court’s decision granting Defendants-
Appellees’ motion to dismiss their claims as moot. Plaintiffs originally challenged
the approval of increased patient copayments in an Arizona Medicaid
demonstration project that provided healthcare benefits to individuals not
otherwise covered by Arizona’s Medicaid plan.
It is a well-settled that under Article III of the Constitution a federal court’s
jurisdiction is limited to live cases and controversies. U.S. Const. art. III, § 2, cl. 1.
In order for a federal court to exercise jurisdiction over a claim, “a litigant must
have suffered, or be threatened with, an actual injury traceable to the defendant and
likely to be redressed by a favorable judicial decision.” Lewis v. Cont’l Bank
Corp., 494 U.S. 472, 477 (1990). The Arizona Medicaid demonstration program at
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Kevin Thomas Duffy, Senior District Judge for the
U.S. District Court for the Southern District of New York, sitting by designation.
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issue and its corresponding administrative record expired on October 21, 2011,
and, as such, this Court is unable to grant effective relief in this appeal because the
challenged administrative decision and its corresponding administrative record are
no longer in effect. See generally Grand Canyon Trust v. U.S. Bureau of
Reclamation, 691 F.3d 1008, 1017 (9th Cir. 2012). Therefore, all claims stemming
from that program and its administrative record are moot.
This is not a situation “capable of repetition, yet evading review.” This
court recognizes that while “the mootness doctrine generally bars claims
challenging an action that has already taken place, there is an exception for claims
which ‘may be repeated and yet evade review.’” Nw. Res. Info. Ctr., Inc. v. Nat’l
Marine Fisheries Serv., 56 F.3d 1060, 1070 (9th Cir. 1995) (quoting Alaska Fish &
Wildlife Fed’n v. Dunkle, 829 F.2d 933, 939 (9th Cir.1987)). To qualify for this
exception, “the injury suffered must be of a type inherently limited in duration
such that it is likely always to become moot before federal court litigation is
completed. Ctr. for Biological Diversity v. Lohn, 511 F.3d 960, 965 (9th Cir.
2007). As a general matter, agency decisions fall within the “capable of repetition”
exception to the mootness doctrine if i) the duration of the challenged action is too
short to allow full litigation before it ceases, and ii) there is a reasonable
expectation that the complaining party will be subject to the same action again.
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Greenpeace Action v. Franklin, 14 F.3d 1324, 1329 (9th Cir. 1992). This appeal
fails to meet either of these requirements. First, Plaintiffs’ claims fail to satisfy the
durational requirement needed to qualify for this exception. This court has
consistently held that “an issue that ‘evades review’ is one which, in its regular
course, resolves itself without allowing sufficient time for appellate review.”
Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1173–74 (9th Cir. 2002).
Plaintiffs had ample time to fully litigate these issues, and they did just that.
Plaintiffs’ claims do not evade review because they have been reviewed several
times and by several courts. Second, there is no reasonable expectation that
Plaintiffs will be subject to this same action again. It is unlikely, if not entirely
impossible, that this dispute over the sufficiency and development of the
administrative record accompanying Arizona’s prior demonstration project will
arise again because that program has expired and was replaced by a new
demonstration project with a new administrative record. Ultimately, Plaintiffs
cannot demonstrate that the facts on appeal fall within the narrow “capable of
repetition” exception to the mootness doctrine.
This case is moot because the challenged agency decision and administrative
record are now inoperative and a new administrative record supports the approval
4
of the subsequent demonstration project and the corresponding increased
copayments. Accordingly, Plaintiffs’ appeal is moot and is hereby DISMISSED.
5