In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐1588
ROBERT B. CIARPAGLINI,
Plaintiff‐Appellant,
v.
FELICIA NORWOOD, in her official capacity as Director of Illi‐
nois Department of Healthcare and Family Services, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 13 C 50213 — Philip G. Reinhard, Judge.
____________________
MARCH 25, 2016
____________________
Before WOOD, Chief Judge, and MANION and HAMILTON,
Circuit Judges.
HAMILTON, Circuit Judge. Plaintiff Robert B. Ciarpaglini, an
Illinois Medicaid participant, challenges Illinois legislation
that caps at four the number of prescriptions a Medicaid re‐
cipient can receive without prior approval within a thirty‐day
period. See 305 Ill. Comp. Stat. 5/5‐5.12(j). At the time he filed
suit, he was subject to that legislation and alleged he was
2 No. 14‐1588
struggling to obtain his medications because of it. While his
suit was pending, though, he was moved to a managed care
program. As a result he is no longer subject to that cap.
The main dispute before us, though not the only one, is
whether the transfer to managed care rendered moot Ciar‐
paglini’s claims for declaratory and injunctive relief. The dis‐
trict court held that it did. Ciarpaglini v. Quinn, No. 13 C 50213,
2014 WL 1018146 (N.D. Ill. Mar. 17, 2014). Although Ciar‐
paglini offered evidence that the switch might not be perma‐
nent, the court held his arguments were “simply speculation,”
“no more than a guess,” and insufficient to create a “reason‐
able expectation” that the four‐prescription limit would apply
to him in the future. Id. at *3.
We hold that there is insufficient evidence in the record to
determine whether Ciarpaglini’s claims for injunctive relief
are moot, a conclusion we explain further below. We remand
this matter to the district court for limited fact‐finding pro‐
ceedings aimed at permitting both sides to develop a record
on the question of mootness. We retain jurisdiction of this
matter pending completion of those proceedings.1
I. Factual and Procedural Background
The central claim in this appeal is plaintiff’s challenge un‐
der federal law to what he calls the “four‐prescription limita‐
tion” in Illinois’s Medicaid program. The Medicaid program
covers prescription medicines. As a cost‐control measure, Illi‐
nois enacted legislation in 2012 requiring prior approval for
1 The district court dismissed various other claims for damages on
grounds of immunity and failure to state a claim on which relief could be
granted. We will resolve the appeal of those claims once the proceedings
on remand are complete.
No. 14‐1588 3
reimbursement for more than four prescriptions for one pa‐
tient within a thirty‐day period. 305 Ill. Comp. Stat. 5/5‐5.12(j).
We refer to this provision as the prior‐approval requirement.
We accept plaintiff Robert Ciarpaglini’s well‐pled allega‐
tions as true for purposes of this appeal. See St. John’s United
Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir.
2007), quoting Long v. Shorebank Development Corp., 182 F.3d
548, 554 (7th Cir. 1999). Because courts may properly look be‐
yond the jurisdictional allegations of a complaint and view
evidence to determine whether subject matter jurisdiction ex‐
ists in fact, id., we also consider Ciarpaglini’s declaration, the
truth of which defendants have not challenged at this stage of
the case.
Plaintiff Ciarpaglini is an Illinois Medicaid recipient. He
suffers from several chronic conditions, including bipolar dis‐
order, attention deficit hyperactivity disorder, panic disorder,
and generalized anxiety disorder. Doctors have prescribed at
least seven medications to manage these conditions. Ciar‐
paglini alleges that after the prior‐approval requirement took
effect, he could not, at least at times, obtain the medications
he needed. (He acknowledges the prior‐approval mechanism
but calls the system “fraught with flaws” and says it does not
guarantee he will be able to get his medications.) He alleges
that as a result he has contemplated committing suicide, com‐
mitting petty crimes so that he would be jailed, or checking
himself into hospitals just to get the medications he needed.
After informal complaints to state officials failed to pro‐
duce action, Ciarpaglini filed this pro se lawsuit in June 2013.
He challenges the prior‐approval requirement as a violation
of federal Medicaid law, the Americans with Disabilities Act,
the Rehabilitation Act, and the Constitution.
4 No. 14‐1588
A few months later, sometime in September or October
2013, Illinois moved Ciarpaglini from the general fee‐for‐ser‐
vice Medicaid program to a new managed care program. The
prior‐approval requirement for prescription medications
does not apply to Ciarpaglini under the managed care pro‐
gram. That change led the defendants to move to dismiss his
central claim as moot. As part of its broader final judgment,
the district court agreed, and plaintiff has appealed. After re‐
viewing the briefs submitted in the pro se appeal, we ap‐
pointed counsel to represent plaintiff and ordered supple‐
mental briefing. The law firm of Jenner & Block has ably rep‐
resented him and assisted the court in this appeal.
II. Analysis of Justiciability Issues
Article III of the Constitution limits the jurisdiction of fed‐
eral courts to “cases” and “controversies.” Campbell‐Ewald Co.
v. Gomez, 577 U.S. —, 136 S. Ct. 663, 669 (2016). This requires
an actual controversy at “all stages of review, not merely at
the time the complaint is filed.” Id., quoting Arizonans for Of‐
ficial English v. Arizona, 520 U.S. 43, 67 (1997); see also Milwau‐
kee Police Ass’n v. Board of Fire & Police Comm’rs, 708 F.3d 921,
929 (7th Cir. 2013). The issue here is whether the defendants’
switch of plaintiff from the fee‐for‐service program to the
managed care program has rendered moot his challenge to
the prior‐approval requirement.
Relevant to this issue, plaintiff submitted a declaration in
opposition to defendants’ motion to dismiss saying that when
he moved to the managed care program, he asked a defendant
state official whether the relief from the prior‐approval re‐
quirement was permanent. He was told no, that he could be
subjected to the requirement again if he moved to another
county without the managed‐care program or if the state’s
No. 14‐1588 5
“fiscal issues” did not improve. Plaintiff also asserted that
when he received this news, he “wanted to move out of Win‐
nebago County and into Stephenson County,” where he
would again be subject to the prior‐approval requirement.
Plaintiff offers three theories for finding his challenge is
not moot and is otherwise justiciable: the so‐called voluntary
cessation exception to mootness; the mootness exception for
wrongs capable of repetition that would otherwise evade re‐
view; and a pre‐enforcement challenge to the requirement in
the county where he wants to move.
A. Voluntary Cessation
Courts are understandably skeptical when a defendant
seeks dismissal of an injunctive claim as moot on the ground
that it has changed its practice while reserving the right to go
back to its old ways after the lawsuit is dismissed. E.g., United
States v. W. T. Grant Co., 345 U.S. 629, 632 (1953). “Otherwise,
a defendant could engage in unlawful conduct, stop when
sued to have the case declared moot, then pick up where he
left off, repeating this cycle until he achieves all his unlawful
ends.” Already, LLC v. Nike, Inc., 133 S. Ct. 721, 727 (2013). Ac‐
cordingly, “the mere cessation of the conduct sought to be en‐
joined does not moot a suit to enjoin the conduct, lest dismis‐
sal of the suit leave the defendant free to resume the conduct
the next day.” Chicago United Indus., Ltd. v. City of Chicago, 445
F.3d 940, 947 (7th Cir. 2006) (citations omitted).
Decisions by the Supreme Court and this court make clear
that a defendant seeking dismissal based on its voluntary
change of practice or policy must clear a high bar. “A case
might become moot if subsequent events made it absolutely
6 No. 14‐1588
clear that the allegedly wrongful behavior could not reason‐
ably be expected to recur.” United States v. Concentrated Phos‐
phate Export Ass’n, 393 U.S. 199, 203 (1968). The “heavy bur‐
den” of persuading the court that the challenged conduct
“cannot reasonably be expected to start up again” lies with
the party asserting mootness. Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189
(2000), quoting Concentrated Phosphate Export Ass’n, 393 U.S. at
203.
We applied this rule in Milwaukee Police Association v. Jones,
192 F.3d 742 (7th Cir. 1999). Police officers and their union
challenged a new policy prohibiting police officers from dis‐
cussing complaints against other police officers with anyone,
including the police union. The city argued that the case was
moot because a later memorandum from the assistant police
chief announced the temporary rescission of the challenged
policy. We held the case was not moot. The city’s temporary
rescission order had merely complied with a temporary re‐
straining order. The city’s order was explicitly temporary, and
the city had not conceded that the challenged policy was un‐
constitutional. Id. at 746–47, citing City of Los Angeles v. Lyons,
461 U.S. 95 (1983). If the case were to have been dismissed as
moot, there was certainly a reasonable prospect that the chal‐
lenged policy would be reinstated.
At oral argument in this case, defendants asserted that
their move of plaintiff from the fee‐for‐service program to the
managed care program was part of a much broader policy
shift in the Illinois Medicaid program. The state of Illinois did
not roll out managed care for all Medicaid recipients in Win‐
nebago County in order to undermine Ciarpaglini’s lawsuit,
No. 14‐1588 7
they argue, nor does the state have any intention of returning
to the fee‐for‐service model when the lawsuit ends.
Publicly available information lends support to this view.
An Illinois law, effective as of January 25, 2011, mandated that
50 percent of recipients eligible for benefits in medical assis‐
tance programs be covered in a managed care program by
January 1, 2015. 215 Ill. Comp. Stat. 106/23. A state website has
identified five “mandatory managed care regions” in Illinois
Medicaid. See http://www.illinois.gov/hfs/SiteCollectionDoc‐
uments/CareCoorPlan.pdf (last visited March 25, 2016). One
of those is the Rockford Region, which includes Winnebago
County. See http://www.illinois.gov/hfs/SiteCollectionDocu‐
ments/CCExpansionMap.pdf (last visited March 25, 2016).
If the change in plaintiff’s care program was indeed part
of this broad shift in policy that affected all or most Medicaid
recipients in Winnebago County, rather than an individually
targeted effort to neutralize his lawsuit, then his challenge to
the prior‐approval requirement is probably moot. Statewide
or even countywide changes in Medicaid policy are not made
quickly or lightly. As a practical matter, the prospect that Illi‐
nois will implement further change relevant to this lawsuit—
for example, by abandoning the managed care program en‐
tirely, or by making the prior‐approval requirement for med‐
ications applicable to it—seems unlikely. And any such
change would take time, providing advance notice to Medi‐
caid recipients like plaintiff. Under these circumstances, the
theoretical possibility that the state might someday abandon
its managed care program (despite legislation mandating its
expansion), or might add the prior‐approval requirement to
plaintiff’s managed care program, would not be enough to
avoid mootness.
8 No. 14‐1588
We recognize that government policies and practices
change. That will always be true. But a defendant may show
a case is moot by demonstrating there is “no reasonable expec‐
tation that the wrong will be repeated.” Milwaukee Police
Ass’n, 192 F.3d at 747, quoting DiGiore v. Ryan, 172 F.3d 454,
466 (7th Cir. 1999) (emphasis added). If the move to managed
care was part of a broad state initiative making Winnebago
County a mandatory managed care region for all Medicaid
participants, the chance that a relevant policy change will
again subject Ciarpaglini to the prior‐approval requirement is
no more than speculative. Said another way, if Illinois is in the
midst of a statewide shift toward managed care, and Ciarp‐
aglini’s move out of fee‐for‐service was part of that shift, de‐
fendants may be able to carry their heavy burden of showing
there is no reasonable expectation he will again be subjected
to the prior‐approval requirement.
The problem in this appeal is that the record does not al‐
low us to determine fairly whether plaintiff’s move from fee‐
for‐service to managed care was in fact part of a broader pol‐
icy change affecting all Medicaid recipients in Winnebago
County. Plaintiff has not had a fair opportunity to address in‐
formation on the state defendants’ website. Cf. Rowe v. Gibson,
798 F.3d 622 (7th Cir. 2015) (all opinions on appellate court’s
use of independent factual research), rehearing en banc de‐
nied by equally divided court, No. 14‐3316 (Dec. 7, 2015). And
the record does not actually show whether all or most Medi‐
caid recipients in Winnebago County are covered by Illinois’s
managed care program.
Accordingly, we think the best course here is to remand
this case for limited fact‐finding by the district court on the
No. 14‐1588 9
circumstances of Ciarpaglini’s transfer from the fee‐for‐ser‐
vice program, where he was subject to the prior‐approval re‐
quirement, to the managed care program now in effect in
Winnebago County. See Barnhart v. United States, 884 F.2d 295,
296 (7th Cir. 1989) (in resolving motion to dismiss for lack of
subject matter jurisdiction, “an evidentiary hearing may be
held if necessary”). We hope the district court will be able to
act promptly, while giving the parties a fair opportunity to
present facts relevant to this narrow issue of mootness. We
will retain jurisdiction of this appeal and will return to it after
the district court has found the relevant facts.
B. Capable of Repetition Yet Evading Review
For completeness, we also address plaintiff’s other theo‐
ries for avoiding mootness. One is that the alleged wrongdo‐
ing is capable of repetition but will evade judicial review if we
do not consider it now. “The exception applies where ‘(1) the
challenged action is in its duration too short to be fully liti‐
gated prior to cessation or expiration, and (2) there is a rea‐
sonable expectation that the same complaining party will be
subject to the same action again.’” Federal Election Comm’n v.
Wisconsin Right to Life, Inc., 551 U.S. 449, 462 (2007), quoting
Spencer v. Kemna, 523 U.S. 1, 17 (1998); see also Murphy v. Hunt,
455 U.S. 478, 482 (1982); Stotts v. Community Unit Sch. Dist. No.
1, 230 F.3d 989, 991 (7th Cir. 2000).
The capable‐of‐repetition exception does not apply here.
This controversy is not one of those inherently transitory sit‐
uations, such as a pregnancy or an election campaign, that
will run its course faster than courts can usually act to provide
complete review on the merits. See Wisconsin Right to Life, 551
U.S. at 462–63; Roe v. Wade, 410 U.S. 113, 125 (1973); Majors v.
Abell, 317 F.3d 719, 722–23 (7th Cir. 2003). The ordinary course
10 No. 14‐1588
of injunction litigation should suffice to address the merits of
a challenge to any possible repetition of the alleged problems
for plaintiff Ciarpaglini or any other Medicaid recipients who
encounter similar problems.
This case is similar in one respect to Olmstead v. L.C. ex rel.
Zimring, 527 U.S. 581 (1999). The plaintiffs in Olmstead were
persons with mental disabilities. They asserted that the Amer‐
icans with Disabilities Act required that they be placed in
community care rather than in larger, more isolated institu‐
tions. While the lawsuit was pending, the individual plaintiffs
were transferred to community‐based care, one before the dis‐
trict court ruled in plaintiffs’ favor, and the other afterward.
L.C. ex rel. Zimring v. Olmstead, 138 F.3d 893, 895 n.2 (11th Cir.
1998).
The Supreme Court noted that this change did not render
the case moot in view of the plaintiffs’ histories of “multiple
institutional placements.” Olmstead, 527 U.S. at 594 n.6. There
was no indication in Olmstead that the plaintiffs’ transfers
were anything other than individualized decisions that could
have been reversed at any time. See id. at 593 (transfers based
on treatment teams’ assessments). The Court wrote in terms
of the mootness exception for wrongs capable of repetition yet
evading review and agreed that the possibility of recurrence
was high enough to decide the merits. See id. at 594 n.6, citing
L.C. ex rel. Zimring v. Olmstead, 138 F.3d at 895 n.2; see also
Honig v. Doe, 484 U.S. 305, 318–23 (1988) (potential for unilat‐
eral decision by defendant to change one plaintiff’s school as‐
signment again prevented dispute over special educational
services from being moot).
While these decisions suggest there is not a razor‐sharp
doctrinal boundary between the “voluntary cessation” and
No. 14‐1588 11
“capable of repetition” exceptions to mootness, we expect that
the district court’s findings on the voluntary cessation excep‐
tion will govern the result under either exception. In Olmstead,
the public officials were making patient‐specific treatment de‐
cisions, and the plaintiffs’ community placements had previ‐
ously proven unstable. There were real prospects that the
plaintiffs would again face the treatments they were challeng‐
ing in court—particularly given the number of times they had
been institutionalized in the past.
Whether Ciarpaglini’s move into managed care was a de‐
cision made on an individual basis, or whether it was part of
a statewide policy shift, is an inquiry along the same lines. It
is essentially the same question that controls the voluntary
cessation exception. Thus, to the extent that Olmstead leaves
room for defendants’ conduct here to be considered capable
of repetition but evading review, the outcome under that test
is unlikely to diverge from the voluntary cessation analysis.
C. Pre‐enforcement Challenge
Plaintiff also argues that his interest in moving from Win‐
nebago County to an adjacent county where he would again
be subject to the prior‐approval requirement is sufficient to
allow him to challenge the policy that would apply to him in
that county. Plaintiff has framed this argument in terms of a
pre‐enforcement challenge to the law that would apply to him
if he moved. See generally Susan B. Anthony List v. Driehaus,
573 U.S. —, 134 S. Ct. 2334 (2014) (reversing dismissal of chal‐
lenge to criminal law governing false statements made in po‐
litical campaigns).
The factual record on this point is minimal. Plaintiff’s dec‐
laration says in relevant part:
12 No. 14‐1588
7. Sometime in late September or early Octo‐
ber, 2013, defendants Hamos, Arndt and
Parker placed me in a managed care pro‐
gram and at the time I received that notifica‐
tion I wanted to move out of Winnebago
County and into Stephenson County.
8. Because of the defendants[’] threat of re‐im‐
posing the four prescription limitation upon
me should I leave Winnebago County and
because I cannot afford to pay for all my
medications I have remained in Winnebago
County.
At our request, the parties briefed whether such a desire
to move to another county (or state) is sufficient to give a
plaintiff standing on the theory that the allegedly illegal con‐
dition of a government benefit program like Medicaid dis‐
courages the plaintiff from moving his residence. On the one
hand, plaintiff contends he has a constitutional right to move
and to live where he wishes. On the other hand, this theory of
standing poses obvious risks of lawsuits by interlopers with
little real stake in a dispute, without involving other potential
plaintiffs who reside in the affected jurisdiction and may have
much greater stakes in the matter. On this issue, also, we
would benefit from additional fact‐finding on the circum‐
stances, reasons for, obstacles to, and sincerity of plaintiff’s
stated desire to move to Stephenson County.
* * *
For these reasons, we order a limited remand of this mat‐
ter to the district court for what we hope will be prompt and
No. 14‐1588 13
limited proceedings to determine facts relevant to: (1) the vol‐
untary cessation exception to mootness, and (2) plaintiff’s
stated desire to move to another county, where he would
again be subject to the prior‐approval requirement for more
than four prescription drugs within a month. We retain juris‐
diction pending that limited remand.