Gray Panthers Project Fund v. Thompson

Decision Date06 September 2002
Docket NumberNo. CIV.A. 01-01374(HHK).,CIV.A. 01-01374(HHK).
Citation273 F.Supp.2d 32
PartiesTHE GRAY PANTHERS PROJECT FUND, et al., Plaintiffs, v. Tommy G. THOMPSON, Secretary of Health and Human Services, Defendant.
CourtU.S. District Court — District of Columbia

Vicki Gottlich, Center for Medicare Advocacy, Washington, DC, for Plaintiff.

Scott Sutherland Harris, Peter David Blumberg, U.S. Attorney's Office, Washington, DC, for Defendant.


KENNEDY, District Judge.

Plaintiffs, four national organizations and individual Medicare beneficiaries, seek declaratory and injunctive relief to require the Secretary of the Department of Health and Human Services ("HHS") to comply with his statutory obligations under 42 U.S.C. § 1395w-24(a)(1) and 42 U.S.C. § 1395w-21(d).1 These provisions set out a systematic scheme of activities for the Secretary to undertake "to broadly disseminate information to Medicare beneficiaries ... on coverage options" under the Medicare + Choice program. See 42 U.S.C. § 1395w-21(d)(1).

Before the court are plaintiffs' motion for summary judgment and defendant's motion to dismiss for lack of subject matter jurisdiction or, in the alternative, for a stay of proceedings. Upon consideration of the motions, the oppositions thereto, and the record of this case, the court concludes that defendant's motion to dismiss or stay should be denied and plaintiffs' motion for summary judgment should be granted.

A. Legal Framework

This case centers around the Medicare + Choice program. The program, established by Congress in 1997, gives Medicare beneficiaries the option of selecting health coverage from a variety of private plans offered by participating Medicare + Choice Organizations ("MCOs"). In order to participate in this federal program, each participating MCO must furnish the Secretary of HHS with detailed and accurate information describing the coverage offered on an annual basis. 42 U.S.C. § 1395w-24(a)(2), (3), (4).

Once the information is in hand, the Secretary is required "to broadly disseminate" the information concerning the coverage options to eligible individuals. § 1395w-21(d)(1). This dissemination takes place "in order to promote an active, informed selection among such options," i.e., in order to allow eligible individuals to select the plan that best suits their needs. Id. Information is disseminated via a toll-free number and an Internet site. In addition, and importantly, the statute requires that the Secretary mail information comparing the various plans to every eligible individual. § 1395w-21(d)(2)(A).

B. Factual Background

In 2001, the Secretary took two actions that resulted in the filing of this suit. First, the Secretary extended the deadline for MCOs to submit information to HHS regarding their coverage options. Second, he announced his intention to omit plan comparison data from his annual fall mailing to eligible individuals.

During the relevant time period, the statute clearly provided that MCOs were required to furnish information to the Secretary describing the coverage offered "[n]ot later than July 1 of each year." § 1395w-24(a)(1).2 However, on May 25, 2001, the Secretary notified three industry associations that he had extended this deadline from July 1 to September 17.3 He reaffirmed this position in three memoranda to all Medicare + Choice Organizations, dated May 31, 2001, June 7, 2001, and June 14, 2001.

The statute also provides that "the Secretary shall mail to each Medicare + Choice eligible individual residing in an area ... a list identifying Medicare + Choice plans that are (or will be) available to residents of the area." The statute further provides: "Such information shall be provided in a comparative form." § 1395w-21(d)(2)(ii) (emphasis added). Also in 2001, however, the Secretary announced his intention to omit plan comparison data from his annual fall mailing to eligible individuals. Instead, the Secretary encouraged beneficiaries to obtain plan information directly from the Department of Health and Human Services, via either a dedicated telephone service or the Internet. See Mem. in Supp. of Pls.' Mot. for a Prelim. Inj., Ex. B (Mem. from Gary A. Bailey, at 1).

On June 22, 2001, plaintiffs filed the instant action. Plaintiffs alleged that defendant's actions violate the Medicare statute, the Administrative Procedures Act, and the due process clause of the Fifth Amendment. Plaintiffs sought a permanent injunction, an order of mandamus, and a declaratory judgment.

On August 9, 2001, this court issued a preliminary injunction ordering the Secretary to comply with § 1395w-21(d). In compliance with the court's order, on October 17, 2001, the Secretary disseminated a supplemental mailing containing area-specific plan comparison information. Because the July deadline had passed, however, the Secretary did not comply with § 1395w-24(a)(1) during that year.

A. Mootness

Defendant argues that the court lacks jurisdiction over this controversy because the Secretary's October 17, 2001, mailing of comparative plan-specific information, in compliance with the court's preliminary injunction rendered this case moot.4 This position cannot be sustained.

Defendant's actions fall within the "voluntary cessation" exception to the general rule regarding mootness.5 Defendant's compliance with this court's preliminary injunction in 2001 and his plan, as provided to this court, to comply with such requirements in 2002, does not preclude this court from ruling that his 2001 actions violated the law. Furthermore, defendant's 2001 compliance with the preliminary injunction and his stated intention to voluntarily comply with the relevant statutory requirements in 2002 does not prevent this court from declaring that the defendant may not evade the requirements of 42 U.S.C. § 1395w-21(d) and § 1395w-21(a)(1) in the future.

It is well settled that voluntary cessation of illegal conduct does not, by itself, make an issue moot. See Northeastern Fla. Chapter of the Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 662, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993); City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982); United States v. W.T. Grant Co., 345 U.S. 629, 632-33, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). If the law were otherwise, "the courts would be compelled to leave the defendant free to return to his old ways" Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citations and internal quotations omitted). It is further settled that a dispute is not moot unless there is "no reasonable expectation that the alleged violation will recur." Reeve Aleutian Airways Inc., v. United States, 889 F.2d 1139, 1142-43 (D.C.Cir.1989) (citing County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979));6 see Friends of the Earth, Inc., 528 U.S. at 190, 120 S.Ct. 693. Finally, the law is clear that the moving party bears the "heavy" burden of showing that the violation will not reoccur, i.e., that he will abide by the relevant statutory provisions in future years. See Friends of the Earth, 528 U.S. at 189, 120 S.Ct. 693; Reeve Aleutian Airways 889 F.2d at 1143 ("The burden lies with the moving party, and it is a heavy one."); Doe v. Harris, 696 F.2d 109, 111 (D.C.Cir.1982).

The Secretary has not met his burden. Despite numerous opportunities to persuade the court that, going forward, he will comply with the letter and spirit of the relevant statutory provisions, he has failed to do so.

In his defense, the Secretary argued, in regard to 42 U.S.C. § 1395w-21(d), that "it was not possible ... to comply with the letter of the statute by mailing complete information to all beneficiaries." Opp'n to Pls.' Mot. for a Prelim. Inj. Decl., of Michael R. McMullan ¶ 15 ("McMullan Decl."). The Secretary advanced this argument even though he apparently recognized that the comparative format was legislatively mandated and "necessary for a beneficiary who wishes to make a meaningful comparison of Medicare + Choice plan options." Id. at ¶ 15. Given that the Secretary's violation of the statute was no mere oversight, and that recent changes to the Medicare + Choice program likely make compiling and disseminating relevant information by the statutory deadline more, not less, challenging,7 the court fears that, without its intervention, the Secretary will again violate the statute. Cf. Fraternal Order of Police v. Rubin, 134 F.Supp.2d 39, 43 (D.D.C.2001) (finding the controversy moot, in part, because the plaintiffs were challenging an isolated action, not a concerted policy).

Furthermore, the court is troubled by the Secretary's failure to confess error regarding his past conduct. Instead, the Secretary has repeatedly asserted that his actions were reasonable, in light of relevant constraints. See, e.g., Def's. Mot. in Opp'n. to Pls.' Mot. for Summ. J. at 4 ("the Secretary determined that the only reasonable approach would be not to include generic plan information ... in the Medicare & You Handbook"); id. at 22 ("HHS has properly and intelligently balanced the often conflicting statutory goals and practical considerations presented to it"). Given this position, the court cannot be convinced that the violations will not reoccur, absent the court's involvement. See In re Center for Auto Safety, 793 F.2d 1346, 1353 (D.C.Cir.1986) (citations and quotations omitted) (finding that the National Highway Safety Administration's position that its conduct, while out of compliance with the relevant statute, was nonetheless reasonable "heightens the probability that the agency will once again fail to meet statutory deadlines in the future" and thus creates "some cognizable danger of recurrent violation"); Milwaukee Police Ass'n v. Jones, 192 F.3d 742, 747 (7th Cir.1999) (finding that the defendant's compliance with a...

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