Davidson v. Howe

• Decision Date: 16 April 2014
• Docket Number: No. 13–2365.,13–2365.
• Citation: 749 F.3d 21
• Parties: Albert DAVIDSON, as Guardian of Marilyn Davidson; Regina Davidson, as Guardian of Marilyn Davidson, Plaintiffs, Appellants, v. Elin HOWE, as Commissioner of the Massachusetts Department of Developmental Services, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

749 F.3d 21

Albert DAVIDSON, as Guardian of Marilyn Davidson; Regina Davidson, as Guardian of Marilyn Davidson, Plaintiffs, Appellants,

v.Elin HOWE, as Commissioner of the Massachusetts Department of Developmental Services, Defendant, Appellee.

No. 13–2365.

United States Court of Appeals, First Circuit.

April 16, 2014.

Margaret M. Pinkham, with whom Elise Busny and Pinkham Busny LLP were on brief, for appellants.

Timothy J. Casey, Assistant Attorney General, with whom Martha Coakley, Attorney General of Massachusetts, was on brief, for appellee.

Before LYNCH, Chief Judge, THOMPSON, Circuit Judge, and SMITH, ^* District Judge.

LYNCH, Chief Judge.

Plaintiffs Albert and Regina Davidson are guardians of 70–year–old Marilyn Davidson (whom we refer to as “Marilyn”), who is in state care. They appeal from the district court's denial of a preliminary injunction in an action purported to be brought under the federal Medicaid Act and various implementing regulations. Davidson v. Howe, No. 1:13–cv–12634–WGY (D.Mass. Oct. 29, 2013). Plaintiffs sought to enjoin Marilyn's transfer from the Fernald Developmental Center, her home since 1985 and which was being closed, to her new home at the Wrentham Developmental Center. Both are Intermediate Care Facilities (“ICFs”) for the intellectually disabled operated by the Massachusetts Department of Developmental Services (“DDS”).

On appeal, the Davidsons argue in their briefs that the district court erred in denying the injunction and in holding that the statutory and regulatory provisions cited in their complaint, 42 U.S.C. § 1396a(a)(31) and 42 C.F.R. § 483.430, do not create a private right of action.

The Commonwealth argues that plaintiffs' case should be dismissed because the claims for injunctive and declaratory relief have been rendered moot by Marilyn's completed transfer to Wrentham, and that plaintiffs' claim for money damages is barred by the Eleventh Amendment. We agree that the claims for injunctive and declaratory relief in the case are moot. The case does not raise issues which fall into an exception for mootness. We also hold that the damages claim is barred by the state's Eleventh Amendment immunity. We do not reach the question of whether there is a private right of action under the statute and accompanying regulations.

I.

Marilyn is intellectually disabled and has been in DDS care for most of her life. Marilyn was first admitted to Fernald at age six in 1949. At age sixteen, Marilyn was transferred to Metropolitan State Hospital. Other than a short period when she lived in Westborough State Hospital, she remained at Metropolitan State Hospital until 1985, at which time she was transferred back to Fernald. In 2003, the Commonwealthannounced that it would close Fernald, described as “by far the most costly of the ICFs to run and the most seriously noncompliant with the Americans with Disabilities Act of 1990[, 42 U.S.C. § 12101 et seq.].” ¹M.D. ex rel. Davidson v. Dep't of Developmental Servs. (“ Davidson I ”), 83 Mass.App.Ct. 463, 464 n. 4, 985 N.E.2d 863, 864 n. 4,review denied,465 Mass. 1107, 989 N.E.2d 900 (2013). In 2008, after protracted litigation, this court held that the Commonwealth could close Fernald without re-opening the landmark 1993 consent decree, see Ricci v. Okin (“Ricci III ”), 823 F.Supp. 984 (D.Mass.1993), that brought to an end more than two decades of institutional reform litigation concerning the intellectually disabled in Massachusetts.²Ricci v. Patrick (“Ricci V ”), 544 F.3d 8, 15–22 (1st Cir.2008).

Under the Ricci consent decree, certain disputes about treatment of class members are submitted to the state system. See id. at 20. There were extensive state administrative and judicial proceedings leading up to Marilyn's transfer from Fernald. Following this court's decision in Ricci V, DDS began to plan Marilyn's transfer from Fernald. DDS discussed with plaintiffs various alternative placements including at the two ICFs that would remain in operation (Wrentham and the Hogan Regional Center) as well as at state- and vendor-run community-based facilities. Davidson I, 83 Mass.App.Ct. at 474, 985 N.E.2d 863 at 871. Plaintiffs made plain that they opposed Marilyn's transfer from Fernald. Id. In May 2010, DDS gave plaintiffs notice of its specific plan to transfer Marilyn from Fernald to Wrentham. Id. at 465, 985 N.E.2d at 865;seeMass. Gen. Laws ch. 123B, § 3. Plaintiffs objected and DDS referred the matter to the Massachusetts Division of Administrative Law Appeals. Davidson I, 83 Mass.App.Ct. at 465, 985 N.E.2d at 865;seeMass. Gen. Laws ch. 123B, § 3. Chapter 123B, § 3 of Massachusetts General Laws is a state law providing an administrative due process mechanism for review of agency decisions, followed by a mechanism for judicial review in the state courts. An evidentiary hearing was held before an administrative magistrate. The magistrate approved the transfer, concluding that Marilyn's transfer to Wrentham “would result in improved services and quality of life and was in her best interest.” ³Davidson I, 83 Mass.App.Ct. at 465, 985 N.E.2d at 865;seeMass. Gen. Laws ch. 123B, § 3.

Plaintiffs sought state judicial review of the magistrate's decision; the Superior Court affirmed. Davidson I, 83 Mass.App.Ct. at 465, 985 N.E.2d at 865;seeMass. Gen. Laws ch. 30A, § 14(7). Plaintiffs appealed the Superior Court decision; in April 2013, the Massachusetts Appeals Court affirmed. Davidson I, 83 Mass.App.Ct. at 465, 985 N.E.2d at 865. And, in June 2013, the Massachusetts Supreme Judicial Court denied further appellate review, see465 Mass. 1107, 989 N.E.2d 900. At this point, plaintiffs had exhausted all means of challenging the proposed transfer under Massachusetts law.

DDS continued to plan for Marilyn's transfer. On August 22, 2013, DDS held a meeting with plaintiffs and Fernald and Wrentham staff members to update Marilyn's Individual Transition Plan (“ITP”). Under the updated ITP, Marilyn was scheduled to move to Wrentham on October 22, 2013.

On October 18, 2013, plaintiffs filed a complaint in federal district court alleging that the ITP for Marilyn's transfer violated the federal Medicaid statute and various implementing regulations.⁴See42 U.S.C. § 1396a(a)(31); 42 C.F.R. § 483.430. That same day, plaintiffs filed a motion for a preliminary injunction, seeking to delay Marilyn's transfer from Fernald to Wrentham until such time as DDS adopted an appropriate transition plan.

The district court held an initial hearing on October 21, during which it directed the parties to file additional briefing on whether the various federal regulations cited in the complaint created a private right of action and, if so, what legal standard the court was to use to adjudicate plaintiffs' claims. Plaintiffs filed an amended complaint on October 27. On October 28, the district court held a second hearing, during which the court denied plaintiffs' request for injunctive relief on the ground that the regulations cited in the original complaint did not create a private right of action, but nonetheless allowed plaintiffs to file an amended complaint.⁵ The court held further that Marilyn's transfer could proceed on October 31 absent a stay from this court. Plaintiffs appealed and asked this court for a stay pending appeal. This court denied plaintiffs' request for a stay on October 30, reasoning that, even if plaintiffs had a private right of action, the court “ha [d] no confidence at this stage that staying the transfer would do Marilyn more good than harm.” ⁶ Marilyn was transferred the next day to Wrentham and has continued to reside there.

II.

We take up the question of mootness. In their briefs, plaintiffs took the position the case was not moot because they say they have ongoing claims for declaratory and injunctive relief as to Marilyn's care and so fall under an exception to the mootness doctrine, and because they have a remaining claim for damages from the transfer. At oral argument, counsel for plaintiffs agreed that the declaratory and injunctive relief originally sought, both regarding Marilyn's now-inactive ITP, are now moot.

“The doctrine of mootness enforces the mandate that an actual controversy must be extant at all stages of the review, not merely at the time the complaint is filed.” Am. Civil Liberties Union of Mass. v. U.S. Conference of Catholic Bishops (“ACLU ”), 705 F.3d 44, 52 (1st Cir.2013) (quoting Mangual v. Rotger–Sabat, 317 F.3d 45, 60 (1st Cir.2003)) (internal quotation marks omitted). “If events have transpired to render a court opinion merely advisory, Article III considerations require dismissal of the case.” Mangual, 317 F.3d at 60. “The burden of establishing mootness rests with the party invoking the doctrine....” ACLU, 705 F.3d at 52.

Here, the transfer from Fernald to Wrentham has been completed and the administrative plan under which the transfer was effectuated is no longer in effect as to Marilyn. Absent a cognizable claim for damages, when a challenged plan goes out of effect, “there is literally no controversy left for the court to decide—the case is no longer ‘live.’ ” ACLU, 705 F.3d at 53 (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). More still, a court can provide no meaningful relief to the challenging party since, once the plan ceases to be operative, there is no plan left to enjoin, cf. New Eng. Reg'l Council of Carpenters v. Kinton, 284 F.3d 9, 18 (1st Cir.2002), and, “[w]ith limited exceptions, ... issuance of a declaratory judgment deeming past conduct illegal is also not permissible as it would be merely advisory.” ACLU, 705 F.3d at 53.

Plaintiffs maintain that their original complaint is not moot, first because their case nonetheless fits an exception to the mootness doctrine, and second because they have a cognizable claim for damages. Both arguments fail.

A. “ Capable of Repetition, Yet Evading Review ”

Plaintiffs argue that the issues presented are “capable...