Ciarpaglini v. Norwood

• Decision Date: 25 March 2016
• Docket Number: No. 14–1588.,14–1588.
• Parties: Robert B. CIARPAGLINI, Plaintiff–Appellant, v. Felicia NORWOOD, in her official capacity as Director of Illinois Department of Healthcare and Family Services, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

817 F.3d 541

Robert B. CIARPAGLINI, Plaintiff–Appellant,
v.
Felicia NORWOOD, in her official capacity as Director of Illinois Department of Healthcare and Family Services, et al., Defendants–Appellees.

No. 14–1588.

United States Court of Appeals, Seventh Circuit.

March 25, 2016.

817 F.3d 542

Barry Levenstam, Jenner & Block LLP, Chicago, IL, Erica L. Ross, Jenner & Block LLP, Washington, DC, for Plaintiff–Appellant.

Timothy M. Maggio, Office of the Attorney General, Chicago, IL, for Defendants–Appellees.

Before WOOD, Chief Judge, and MANION and HAMILTON, Circuit Judges.

817 F.3d 543

HAMILTON, Circuit Judge.

Plaintiff Robert B. Ciarpaglini, an Illinois Medicaid participant, challenges Illinois legislation that caps at four the number of prescriptions a Medicaid recipient 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 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 Ciarpaglini's claims for declaratory and injunctive relief. The district court held that it did. Ciarpaglini v. Quinn, No. 13 C 50213, 2014 WL 1018146 (N.D.Ill. Mar. 17, 2014). Although Ciarpaglini offered evidence that the switch might not be permanent, the court held his arguments were "simply speculation," "no more than a guess," and insufficient to create a "reasonable 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 proceedings 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 under federal law to what he calls the "four-prescription limitation" in Illinois's Medicaid program. The Medicaid program covers prescription medicines. As a cost-control measure, Illinois enacted legislation in 2012 requiring prior approval for reimbursement for more than four prescriptions for one patient 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 allegations 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 beyond the jurisdictional allegations of a complaint and view evidence to determine whether subject matter jurisdiction exists 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 disorder, attention deficit hyperactivity disorder, panic disorder, and generalized anxiety disorder. Doctors have prescribed at least seven medications to manage these conditions. Ciarpaglini 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, committing petty crimes so that he would be jailed, or checking himself into

817 F.3d 544

hospitals just to get the medications he needed.

After informal complaints to state officials failed to produce 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.

A few months later, sometime in September or October 2013, Illinois moved Ciarpaglini from the general fee-for-service Medicaid program to a new managed care program. The prior-approval requirement for prescription medications does not apply to Ciarpaglini under the managed care program. 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 reviewing the briefs submitted in the pro se appeal, we appointed counsel to represent plaintiff and ordered supplemental briefing. The law firm of Jenner & Block has ably represented him and assisted the court in this appeal.

II. Analysis of Justiciability Issues

Article III of the Constitution limits the jurisdiction of federal courts to "cases" and "controversies." Campbell–Ewald Co. v. Gomez, 577 U.S. ––––, 136 S.Ct. 663, 669, 193 L.Ed.2d 571 (2016). This requires an actual controversy at "all stages of review, not merely at the time the complaint is filed." Id., quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) ; see also Milwaukee 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 requirement 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 "fiscal issues" did not improve. Plaintiff also asserted that when he received this news, he "wanted to move out of Winnebago 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 review; 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, 73 S.Ct. 894, 97 L.Ed. 1303 (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., 568 U.S. ––––, 133 S.Ct. 721, 727, 184 L.Ed.2d 553 (2013). Accordingly, "the mere cessation of the conduct sought to be enjoined does not moot a suit to enjoin the conduct, lest dismissal of the suit leave the defendant

817 F.3d 545

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 clear that the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968). The "heavy burden"...