United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 27, 2023 Decided March 10, 2023
No. 22-7060
ELSA MALDONADO, ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01511)
Michael L. Huang argued the cause for appellants. With
him on the briefs were Martha Jane Perkins, Kathleen L.
Millian, Nicholas F. Soares, and Stephanie A. Madison.
Richard S. Love, Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellee. With him on the brief were Karl
A. Racine, Attorney General, at the time the brief was filed,
Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak,
Principal Deputy Solicitor General, and Thais-Lyn Trayer,
Deputy Solicitor General.
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Before: PAN, Circuit Judge, and SENTELLE and TATEL,
Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge TATEL.
TATEL, Senior Circuit Judge: More than a decade ago,
Medicaid recipients filed this suit alleging that in violation of
the Due Process Clause, the District of Columbia is failing to
provide them notice and an opportunity to be heard when
denying them prescription coverage. The case is now before us
for the third time. In the first two appeals, we reversed the
district court’s dismissals for lack of standing and for failure to
state a claim, respectively. On remand, the district court once
more dismissed the case, this time for mootness. For the
reasons set forth below, we again reverse and remand with
instructions to proceed expeditiously with discovery and allow
plaintiffs to make their case.
I.
We described the background of this case in our two
previous opinions. See NB ex rel. Peacock v. District of
Columbia, 682 F.3d 77 (D.C. Cir. 2012); NB ex rel. Peacock v.
District of Columbia, 794 F.3d 31 (D.C. Cir. 2015). For
purposes of this appeal, readers need know only the following.
Medicaid-eligible individuals typically do not learn whether
their prescriptions are eligible for Medicaid coverage until they
attempt to fill them at a pharmacy. But when pharmacies
determine that a prescription is ineligible for Medicaid
coverage, they often fail to explain why the prescription was
denied or how the Medicaid recipient can appeal. In 2010,
plaintiffs, Medicaid-eligible individuals, filed this putative
class action alleging that the District’s “policies, procedures,
and practices of failing to provide individualized written
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notice” when Medicaid benefits are denied “violate[s] the Due
Process Clause.” Second Am. Compl. ¶ 1.
The district court first dismissed the case for lack of
standing. We reversed. NB ex rel. Peacock, 682 F.3d at 87. The
district court then dismissed for failure to state a claim. Again,
we reversed. NB ex rel. Peacock, 794 F.3d at 44.
On remand, plaintiffs sought to proceed with discovery,
which the district court had stayed ever since the District filed
its first motion to dismiss in 2010. Although the district court
did set a discovery schedule, it soon stayed it because the
District issued a memorandum to all pharmacies (the
“transmittal memorandum”) requiring them to explain to
Medicaid recipients why a prescription is denied and how to
appeal.
Based on this memorandum, the district court again
dismissed, this time on mootness grounds. According to the
district court, the transmittal memorandum “provides complete
relief to all potential plaintiffs” by enacting a new District-wide
policy “specifically designed to provide the notice to which
plaintiffs are entitled under the Constitution.” Maldonado v.
District of Columbia, No. 10-1511 (RJL), 2022 WL 910512, at
*3, *4 (D.D.C. Mar. 29, 2022). Because the policy, if
“implemented correctly,” would “lead to the exact form of
individualized notice that [plaintiffs] seek,” the district court
concluded that it could not “provide the plaintiffs with any
further relief.” Id. at *4.
Plaintiffs again appeal, arguing that their case is not moot
because, notwithstanding the transmittal memorandum, some
number of Medicaid recipients are still not informed why their
prescriptions are denied or how they can appeal. Plaintiffs also
urge us to reassign the case to a different district judge. The
District defends the district court’s decision. Our review is de
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novo. True the Vote, Inc. v. IRS, 831 F.3d 551, 555 (D.C. Cir.
2016).
II.
A case becomes moot when the court “can grant no
meaningful relief.” McByrde v. Committee to Review Circuit
Council Conduct, 264 F.3d 52, 55 (D.C. Cir. 2001). Indeed,
“[o]nly when it is impossible for a court to grant any effectual
relief” is a case moot. Decker v. Northwest Environmental
Defense Center, 568 U.S. 597, 609 (2013) (emphasis added)
(internal quotation marks and citation omitted). The “heavy
burden” of proving mootness falls “with the party asserting a
case is moot.” Honeywell International v. NRC, 628 F.3d 568,
576 (D.C. Cir. 2010) (internal quotation marks omitted).
In order to assess mootness, we must first define the
“wrong” alleged in the complaint “in terms of the precise
controversy it spawns.” PETA v. Gittens, 396 F.3d 416, 422
(D.C. Cir. 2005) (internal quotation marks omitted). According
to the district court, the “wrong” alleged in the complaint was
the lack of a policy and the “entirety of the relief” plaintiffs
were seeking was a new “notice policy.” Maldonado, 2022 WL
910512, at *3, *4. This is wrong.
The amended complaint challenges not only the District’s
policies (or lack thereof), but also “procedures [] and practices
of failing to provide individualized written notice.” Second
Am. Compl. ¶ 1 (emphasis added). Plaintiffs objected to not
only the District’s “actions,” but also its “inactions” and asked
the court to “requir[e] the District of Columbia to give them
timely and adequate individualized written notice.” Second
Am. Compl. ¶ 3. Thus, the wrong the complaint alleges is, in
addition to the absence of a policy, the actual failure to provide
notice. And the relief plaintiffs sought was, in addition to a
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change in policy, a “permanent injunction ordering [the District
and its agents] to comply with the Due Process Clause.”
Second Am. Compl. at 35.
Our court has likewise described the alleged wrong as the
failure to provide notice. In our decision reversing the district
court’s dismissal for lack of standing, we characterized the
harm as a “systematic[] deni[al]” of plaintiffs’ constitutional
rights to “timely and adequate written notice.” NB ex rel.
Peacock, 682 F.3d at 80, 81. And we grounded plaintiffs’
constitutional standing not on the absence of policy, but on the
District’s “procedural violations that threaten an individual’s
ability to obtain Medicaid coverage of prescription
medications.” Id. at 83.
The District insists that the case is nonetheless moot
because the transmittal memorandum has been “largely
successful.” Appellee’s Br. 32. In support, it cites an even more
equivocal declaration: “As far as the District is aware, the
notification policy is largely successful.” Joint Appendix 497,
Supp. Byrd. Decl. ¶ 12 (emphasis added). This is hardly
sufficient to meet the District’s “heavy burden” of
demonstrating mootness, True the Vote, 831 F.3d at 561,
especially given that plaintiffs introduced evidence that
pharmacies are in fact failing to provide notice. Plaintiffs
surveyed sixteen pharmacies and discovered that thirteen,
spread across all eight wards, were failing to comply with the
transmittal memorandum. And when one named plaintiff
sought prescription coverage over a year after the transmittal
memorandum circulated, her Medicaid coverage was denied
without any notice of why or how she could challenge the
denial. The District challenges none of this evidence.
For its part, the district court dismissed plaintiffs’ evidence
as a “small handful of individualized instances of alleged
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noncompliance with the new policy.” Maldonado, 2022 WL
910512, at *4. But having denied plaintiffs any opportunity for
discovery, the district court would have had no way of knowing
the extent to which Medicaid recipients are being denied
notice. In any event, the “heavy burden of establishing
mootness is not carried by proving that the case is nearly moot,
or is moot as to a ‘vast majority’ of the parties.” True the Vote,
831 F.3d at 561.
To sum up, plaintiffs challenge the District’s failure to
give Medicaid recipients reasons for denying their
prescriptions and an explanation of how to appeal, and
uncontested evidence demonstrates that, notwithstanding the
transmittal memorandum, some number of plaintiffs are still
not receiving the information they claim they are entitled to
under the Due Process Clause. Because it is not “impossible for
[the district] court to grant any effectual relief,” the case is not
moot. Decker, 568 U.S. at 609 (internal quotation marks and
citation omitted). Indeed, the case is no more moot than Brown
v. Board of Education would have been if, in the wake of the
Supreme Court’s 1954 decision, the Topeka Board of
Education had issued a memorandum directing its schools to
desegregate and record evidence demonstrated that Black
children were still attending segregated schools.
III.
For the foregoing reasons, we reverse and remand. Given
this case’s advanced age and our repeated reversals, we expect
the district court to proceed swiftly to lift the stay on discovery,
and to schedule briefing on class certification and dispositive
motions. We thus see no reason to reassign the case to a
different judge. See In re Kellogg Brown & Root, Inc., 756 F.3d
754, 763 (D.C. Cir. 2014) (reassigning cases is appropriate
“only in the exceedingly rare circumstance that a district
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judge’s conduct is ‘so extreme as to display clear inability to
render fair judgment’” (citation omitted)).
So ordered.